The parties agree to first attempt to resolve any dispute arising from this agreement through good-faith negotiations. Either party may initiate negotiations by providing written notice to the other party, outlining the nature of the dispute.
If the dispute is not resolved through negotiation within 14 days of the initial notice, the parties agree to submit the dispute to mediation under AFSA's rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).
If the dispute is not resolved through mediation within 30 days of the commencement of mediation, or if either party withdraws from mediation, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator's decision) under AFSA's latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree to appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA (or its successor in title) will appoint the arbitrator.
The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, no arbitration under this agreement may be joined to an arbitration involving any other party subject to this agreement, whether through class arbitration proceedings or otherwise.
Any legal costs (attorneys and advocates fees and the costs of experts and witnesses) incurred by the parties in the arbitration will be recoverable on an attorney and own-client scale.
The costs of the arbitration proceedings, including the fees of the arbitrator/arbitrators, will be borne equally between the parties, unless the arbitrator's award provides otherwise.
This clause will not stop a party from applying to court for urgent or interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order). This clause will not stop BEE123 from claiming any amount due to BEE123 by applying to a court, rather than through negotiation, mediation or arbitration.
This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, or email to an address or number given in the specific proposal, or for BEE123 on the first page of these terms.
Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
Each party may change the addresses or correct numbers to any other addresses or numbers in the same country on 14 days prior written notice to the other.
Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, or email confirmation of delivery.
If a party actually receives any notice or other communication, this will be good enough.
No party is responsible for any breach of this agreement caused by circumstances beyond its reasonable control, including flood, fire, earthquake, war, tempest, hurricane, disease, industrial action, or 'acts of God'.
BEE123 is not responsible for any breach of this agreement caused by circumstances beyond its reasonable control, including:
• communications failures, including data centre or undersea cable failures;
• theft, destruction or unauthorised access to BEE123's records, data, programmes or services; or
• supply chain disruptions;
• any interruption to or failure of any website, computer or telecommunications or utilities services not provided by BEE123, including the Internet.
If there is an event of force majeure, the party affected will tell the other immediately of:
• the cause, nature and extent of the circumstances;
• the expected duration of the circumstances; and
• the extent to which its performance will be affected;
and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 30 days because of force majeure, the other party may cancel this agreement, without liability to the affected party, on 7 days' written notice.
The parties will at all times cooperate with and act in good faith towards each other in performing this agreement and any proposals.
The agreement does not create an employment relationship between the parties.
The agreement is the entire agreement between the parties on the subject and supersedes all documentation, information and other communications (in each case whether spoken or written) between the parties with respect thereto.
The agreement and proposals may be signed in two or more counterparts, and the signed counterparts, taken together, will constitute a binding agreement between the parties.
BEE123 may update the terms from time to time. BEE123 will, as far as practically possible, give Client 30 days prior written notice of any updates to the terms by sending a notification through its Services, or placing a notification on the BEE123 Portal or website. Client's continued use of the Services after the update will indicate Client's acceptance of the updated terms.
Despite anything else in these terms, if BEE123 agrees to vary its terms in respect of a particular proposal, no variation or modification to these terms will be effective unless in writing and signed by both parties' authorised representatives. The proposal must specifically reference the clauses in these terms and state that the parties intend to change the clause in these terms.
Any waiver a party may allow the other party will not affect or substitute any of a party's rights against the other party.
If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose. If the term would cease to be invalid, unenforceable, or illegal if some part of the term were deleted without affecting the intent and purpose, the term in question will apply with such change as may be necessary to make it valid and enforceable.
The law of South Africa governs this agreement.
Client consents to the jurisdiction of the lowest courts in South Africa in respect of any action or proceedings BEE123 may bring against Client in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to BEE123's right to institute any action in any other court having jurisdiction.
BEE123 may provide any Services to any other person or entity. BEE123 may exploit its intellectual property subject to its confidentiality obligations.
Each party is responsible for its own costs of drafting and negotiating this agreement.
BEE123 may use Client's name, company logo and a general description of the Services BEE123 provides in any proposals, presentations or other similar documents that BEE123 may issue, employ, publish or submit from time to time, unless client instructs BEE123 in writing not to do so.
By signing this agreement, Client confirms that it has read and understood the terms of BEE123's privacy policy.
The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
Unless otherwise agreed, no party will, during the currency of any proposal or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the proposal.
This restriction will not apply to solicitations made through general advertisements or job boards available to the public, provided that such advertisements or job board postings do not specifically target personnel of the other party. Furthermore, the hiring of personnel who have independently responded to such a general advertisement or job board posting will not be considered a breach of this provision.
In the event of a breach of this clause, the breaching party will automatically be liable to pay to the affected party, as liquidated damages, a sum equal to the gross annual cost-to-company remuneration (inclusive of any bonuses, commission and incentives, and annualised if necessary) paid or payable by the affected party to the personnel in question applicable as at the date of termination of the personnel's contract with the affected party. This remedy is in addition to any other remedies available to the affected party.
BEE123 may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part, without obtaining Client's prior written consent, unless the parties agree otherwise in a proposal. BEE123 will do its best to provide Client with 30 days prior written notice.
Client may not delegate its duties under this agreement or assign its rights under this agreement, in whole or in part, without obtaining BEE123's prior written consent, which consent will not be unreasonably withheld.
BEE123 may sub-contract or delegate its obligations under this agreement to third party contractors. BEE123 will remain liable for performance of the third-party contractors. No one may require BEE123 to disclose the terms (including payment terms) of any sub-contract entered into with respect to BEE123's obligations under this agreement.
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