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GENERAL IT SUPPORT SERVICES TERMS AND CONDITIONS

 

1. Parties

1.1. The Client is the party identified and described above.

1.2. The Service Provider is ViljieCo (Pty) Ltd, Registration Number: 2018/474376/07 (“ViljieCo”).

2. Interpretation

In this Agreement:

2.1. Clause headings are for reference purposes only and shall not influence the interpretation.

2.2. Expressions which denote any gender shall include the other gender, a natural person shall include a juristic/legal entity (whether company, close corporation or other similar entity) and vice versa, the singular shall denote the plural and vice versa.

2.3. The schedules to this Agreement, if applicable, form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such schedules.

2.4. If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any of the Parties, notwithstanding that such provision is only contained in the relevant definition, effect shall be given thereto as if such provision was a substantive provision in the body of this Agreement.

2.5. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last unless the last day is not a business day in which case the last day shall be the next succeeding business day.

2.6. Where the day upon which any act is required to be performed is not a business day, the Parties shall be deemed to have intended such act to be performed upon the 1st business day thereafter.

2.7. A reference to days (other than business days), months or years shall be a reference to calendar days, months or years.

2.8. Where figures are referred to in numerals and in words, if there is any conflict between the two (2), the words shall prevail;

2.9. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

2.10. The use of the word “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples.

2.11. The rule of construction that in the event of ambiguity, the Agreement shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of this Agreement.

2.12. Any reference to a legal concept or process shall be deemed to include to a reference to the equivalent or similar concept or process. 

2.13. This Agreement shall be binding on and enforceable by the administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted assigns or liquidators, as the case may be.

2.14. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

3. Definitions

3.1. “Agreement” means the IT Support Services agreement, recorded in this document and duly signed by both Parties, any variations hereto and any annexures attached hereto.

3.2. “Business Day” means any other day other than a Saturday, Sunday or public holiday in the Republic of South Africa.

3.3. “Confidential Information” means any information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information, or information which the receiving party knows or reasonably should have known is of a proprietary or confidential nature. Such Confidential Information includes technical, business or commercial information, information relating to associates, suppliers, principals, creditors, debtors and clients, as well as any technical knowledge and trade secrets, specifications, drawings, sketches, models, samples, formulas, data, documentation, concepts, ideas, business plans, methods, methodologies, procedures, processes, know-how, techniques,  templates; Software Program (both source and object code), Software Program tools, utilities and routines contained in written, electronic or any other format.

3.4. “Devices” shall include, but not be limited to, laptops, desktops and servers.

3.5. “Effective Date” being the date on which ViljieCo commences the provision of the Services, notwithstanding the date on which this Agreement is signed.

3.6. “Intellectual Property” means intellectual or similar property developed or created by ViljieCo, in any whatsoever format, and shall include, but is not limited to, written advice or other materials, inventions, designs, patents, copyright, trademarks, trade secrets, know-how, show-how, formulas, samples, data, etc.

3.7. “IMAC” means installations, moves, additions and/or changes and are services which fall outside of the scope of Services, as defined in Annexure “A” – Services Inclusion List.

3.8. “IT” means information technology and includes the use of computers, software, networks, and other digital technologies.

3.9. “Parties” mean ViljieCo and the Client collectively and a reference to a “Party” shall mean either ViljieCo or the Client as determined from the context.

3.10. “Place of Signature” means the place where this Agreement is signed on the signature date, by the last Party to do so in time, provide that all the Parties have signed, and shall be regarded as the place where the cause of action arose.

3.11. “Services” mean the ongoing IT support services provided by ViljieCo to the Client in accordance with the Client’s instruction, the scope and objectives of the services are described in Annexure “A” – Services Inclusion List, attached hereto.

3.12. “Signature Date” means the date upon which the last Party signs this Agreement.

3.13. “Software” means a program or application utilised by ViljieCo to render the Services.

3.14. “Termination Date” means the date on which this Agreement terminates.

4. Appointment

4.1. The Client hereby appoints ViljieCo to render certain IT services for the support and maintenance of the Client’s existing IT infrastructure, as detailed in Annexure “A” – Services Inclusion List, attached to this Agreement.

4.2. ViljieCo accepts the appointment subject to the terms and conditions of this Agreement.

4.3. In the event of a copy of this Agreement being sent to the Client and it not being signed by or on behalf of the Client and returned to ViljieCo, and should the Client non the less continue to instruct ViljieCo to conduct and render the Services, all terms and conditions of this Agreement shall be deemed to have been tacitly understood and accepted by the Client, notwithstanding the Client’s failure to sign this Agreement.

5. Duration

5.1. This Agreement will commence on the commencement date and shall continue to be of force and effect, on a month-to-month basis, until terminated by either Party as provided for herein.

6. Scope of Services

6.1. The Parties agree that the Services are based on the Client’s existing IT infrastructure and will be rendered by ViljieCo on a monthly basis in terms of the Client’s instruction, as detailed in Annexure “A” – Services Inclusion List.

6.2. Annexure “A” – Services Inclusion List details all included Services and any service(s) not detailed in Annexure “A” is automatically excluded from ViljieCo’s service rendering obligation(s).

6.3. Should the Client require any IMAC services, the Client agrees that he/she/it will be liable for such services which will be in addition to the Client’s payment obligation as detailed in Annexure “B” – Breakdown of Fees.

6.4. It is acknowledged that certain software would be required to be installed on the Client’s devices to enable ViljieCo to render the Services. Such software includes, but is not limited to, NinjaOne, Bitdefender Endpoint Security, Huntress Labs, Cofense Protect, StorVault, TeamViewer Enterprise and Bitwarden Teams. The Client agrees that the required software may be installed on the devices. Irrespective of the installation of any required software on the Client’s devices, the Client will not obtain any rights of ownership, subscription and/or use of the software, beyond what is allowed by the software and/or allowed in terms of any agreement between ViljieCo and a service provider in respect of the software.

6.5. All Client data stored upon supplied hardware and/or cloud storage services shall remain, in its entirety, the Client’s property. The data protection of such data shall remain the Client’s responsibility.

6.6. The Client specifically consents/does not consent (delete which is not applicable) to direct marketing, as provided for in terms of the Protection of Personal Information Act 4 of 2013 (“POPIA”), by ViljieCo of the Services and/or similar services.

7. Costs and Expenses

7.1. The Parties agree that ViljieCo will be entitled to recover from the Client any and all disbursements, costs and/or “out-of-pocket” expenses incurred and/or arising from the rendering of the Services.

8. Monthly Fees and Payment Terms

8.1. The Parties agree that in consideration for the Services, the Client will pay ViljieCo a monthly fee as detailed in Annexure “B”- Breakdown of Fees.

8.2. The Parties agree that the monthly fee will be subject to an annual increase which increase will be in line with the Consumer Price Index (CPI). ViljieCo will review the monthly fee during November / December of the current year and notify the Client of the annual increase which will be effective as from January of the following year.

8.3. Invoices will be rendered by ViljieCo in arrears and will be payable upon presentation.

8.4. Payment must be made by electronic fund transfer (EFT), free of exchange, without deduction, set off or demand into ViljieCo’s nominated bank account, as reflected on the invoice(s).

8.5. It is the Client’s sole responsibility to ensure that payment is made into ViljieCo’s nominated and correct bank account. In the event that the Client effects payment of monies into the incorrect bank account, ViljieCo will not be liable for any damages occasioned as a result thereof and the fee paid to the incorrect account shall remain due and payable by the Client to ViljieCo.

8.6. Any invoice(s) rendered by ViljieCo are deemed to be correct, unless written objection is furnished within 3 (three) business days of the date of invoice.

8.7. The Client agrees that should it not dispute the fees and/or charges appearing on an invoice within the 3-day time period, it will be deemed that the Client has accepted liability for payment thereof.

8.8. Should the Client not have settled any amount(s) due and payable to ViljieCo in accordance with any invoice(s) rendered, ViljieCo will have the right to cease all further services.

8.9. In the event that the Client defaults on payment, the Client will be afforded 7 (seven) calendar days to rectify such default. If payment is not made within this period, ViljieCo will be entitled to suspend the Services and/or cancel this Agreement.

8.10. Any obligation of the Client and/or the amount of the indebtedness of the Client to ViljieCo shall be determined by and shall be prima facie proved by a certificate under the signature of a director of ViljieCo. The certificate shall be:

8.10.1. prima facie proof of the obligation or amount of the indebtedness of the Client;

8.10.2. valid against the Client in any competent court for the purpose of obtaining Summary Judgment or Provisional Sentence; and

8.10.3. deemed to be sufficient particularity for the purposes of pleading or trial in any action instituted by ViljieCo against the Client.

8.11. In the event of fees due and payable to ViljieCo not being settled in accordance with the terms of this Agreement, ViljieCo will have the right to recover, from the Client, any legal fees, on an attorney and own client scale, and other costs directly related to recovering these unpaid debts.

9. Client’s Co-operation

9.1. The Client acknowledges that ViljieCo will require the Client’s cooperation and access to the Client’s hardware, equipment and/or premises to render the Services.

9.2. The Client further acknowledges that to enable ViljieCo to render the Services, certain software will be required to be installed on the Client’s devices. The Client agrees to co-operate and allow ViljieCo the required access in order to instal such software.  

9.3. The Client agrees to provide ViljieCo with their full cooperation and/or access to devices, hardware, equipment and/or premises, as required, to enable ViljieCo to render the Services.

10. Confidential Information

10.1. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement.

10.2. A Party's Confidential Information shall not be deemed to include information that:

10.2.1. is or becomes publicly known other than through any act or omission of the receiving Party;

10.2.2. was in the other Party's lawful possession before the disclosure;

10.2.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

10.2.4. is independently developed by the receiving Party, which independent development can be shown by written evidence; or

10.2.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10.3. Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

10.4. Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

11. Intellectual Property

11.1. The Client acknowledges and agrees that ViljieCo owns all rights in its intellectual property in and to the Services and that this Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights to and in intellectual property in respect to the Services.  

11.2. The Parties agree that ViljieCo will retain all rights in and to the intellectual property in everything developed and/or created by it.

12. Protection of Personal Information Act 4 of 2013 (“POPIA”)

12.1. The Client acknowledges and agrees that ViljieCo requires certain personal information in order to adhere to its contractual obligations and to render the Services.

12.2. By signing this document, the Client agrees that ViljieCo may collect, collate, process and store all personal information necessary and made available and provided to ViljieCo.

12.3. The Client agrees and consents to the processing of personal information as identified and required in terms of POPIA. The Client’s attention is drawn to its/his/her right to object to the processing of personal information and/or withdraw its/his/her consent at any time unless the information is required in law, as provided in terms of POPIA.

12.4. ViljieCo undertakes to limit the type of information collected and/or processed to that which is necessary to render and perform the Services, to which the Client has consented and/or to which is necessary for ViljieCo to adhere to its contractual obligations.

12.5. Both ViljieCo and the Client agree and undertake to safeguard and protect the other’s personal information and that the personal information collected and/or processed shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.

12.6. The Client agrees that irrespective of ViljieCo’s Services, specifically the IT security and backup services, it remains the Client’s sole responsibility to comply with the provisions and requirements of POPIA.

13. Breach

13.1. Should the Client fail to make payment of any sum required or should any Party fail to observe any of the provisions, then it shall be deemed to be in breach.

13.2. In the event of a breach, if the breaching Party fails to remedy such breach within 10 (ten) business days after delivery of notice requiring the breach be remedied, then the non-breaching Party shall have the right, without prejudice to any other rights, to: enforce the relevant provisions and claim specific performance as well as such damages which it might have suffered and/or cancel this Agreement, claim damages and proceed against the defaulting Party for the recovery of damages suffered.

13.3. The defaulting Party shall be liable for all damages suffered by the non-defaulting Party as well as costs and expenses incurred as a result of or in connection with such default, including legal costs calculated on an attorney and own client scale, interest and collection commission.

14. Termination

14.1. Either Party may terminate this Agreement for any reason whatsoever by providing written notice to the other Party.

14.2. Should such written notice to cancel this Agreement be provided before the 15th of the month:

14.2.1. the Agreement will be terminated on the last day of the month during which the cancellation/termination notice was received; and

14.2.2. the Client shall be liable for that month’s monthly fee.

14.3. Should the written notice to cancel this Agreement be provided after the 15th of the month:

14.3.1. the Agreement will be terminated on the last day of the month following the month during which the cancellation/termination notice was received; and

14.3.2. the Client will be liable for that month’s and the following month’s monthly fee.

14.4. Upon termination of this Agreement for whatsoever reason:

14.4.1. The Client shall no longer be entitled to use the Services of ViljieCo and ViljieCo shall be under no obligation to render and perform the Services;

14.4.2. The Client shall forthwith make payment to ViljieCo of all arrears amounts as well as all current amounts due; and

14.4.3. It will be the Client’s responsibility to ensure that all the Client’s data and information is transferred from the backup/storage infrastructure provided and/or made available to the Client by ViljieCo.

14.5. Termination or expiry of this Agreement for any reason shall not affect any rights of either Party against the other which arose prior to the time at which such termination occurred.

15. Indemnity

15.1. Without detracting from any of the rights of ViljieCo in terms of this Agreement and/or in terms of any law, the Client hereby indemnifies and holds ViljieCo harmless from any and all losses, damages or liabilities incurred or suffered by ViljieCo as a result of any breach by the Client.

15.2. The Client agrees to indemnify ViljieCo against any loss or damage caused by failure by the Client and/or the Client’s employees to adhere to the agreed, understood or implied business processes regarding IT, including but not limited to, approved data storage locations, failure to notify ViljieCo of any device issues (including anti-virus and backups), security and accessibility.

16. Limitation of Liability

16.1. ViljieCo shall not be liable for any loss, including direct, indirect, special or consequential loss or damage, caused by the malfunction of any hardware, software, devices and/or viruses, worms, Trojan horses or similar code, file or programme which may prevent, impair or otherwise adversely affect the operation of any hardware, software or devices.

16.2. ViljieCo cannot be held liable for any damage to devices caused by inadequate storage, tampering by employees or other third parties, or negligence by the Client and/or the Client’s employees in their use of the devices.

16.3. ViljieCo will not be liable whatsoever for the Client’s non-compliance with POPIA and/or any other applicable legislation.

16.4. Subject to clause 16.4 below, the Parties agree that, in the event of a breach of any of the provisions of this Agreement, the defaulting Party shall be liable to the other Party for all loses which constitute direct and/or general damages.

16.5. If any liability for ViljieCo occurs, arising from this Agreement, it will be limited to 1 (one) month’s fee paid by the Client to ViljieCo.

16.6. Neither Party shall be liable to the other Party for any losses which constitute indirect, special or consequential damages.

17. Notices and Domicilia

17.1. The Client’s domicilia citandi et executandi, for all purposes under this Agreement, whether in respect of court processes or documents, giving notice or any other purpose arising hereof, the physical/registered address and/or email address detailed above, provided that the Client may change the chosen domicilium to any other physical address within South Africa by giving written notice thereof to ViljieCo.

17.2. ViljieCo’s domicilia citandi et executandi shall be 77 Leslie Avenue, 23 Foxwood Hills, Douglasdale, Gauteng and/or the email address – wayne@viljieco.co.za.

17.3. Any formal notice to be given to either Party (“the addressee”) or to be made for any purpose under this Agreement shall be in writing and shall be deemed delivered and received if delivered by hand to the addressee’s physical / registered address, on the day it was delivered or to the addressee’s email, on the day it was sent.

17.4. Any notice sent or delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day.

17.5. Any notice given in writing and actually received by the addressee, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.

18. Tacit Acceptance

18.1. Should a copy of this Agreement be sent to the Client and the Client fails to sign and return it to ViljieCo but nonetheless instructs ViljieCo to render the services, all the terms and conditions contained herein shall be deemed to have been tacitly understood and accepted by the Client.

19. General

19.1. Relationship. This Agreement constitutes a non-exclusive relationship and neither the Client nor ViljieCo is precluded from entering into similar agreements with third parties. The nature of the relationship between the Parties is that of service provider and client and shall not constitute or be deemed to be a relationship of principal-agent, a partnership, joint venture and/or any other relationship than service provider and client. Neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other in any way for any purpose.

19.2. Whole Agreement. This Agreement, and all annexures and/or specifically referenced documents, if applicable, constitute the whole agreement between the Client and ViljieCo. No undertaking, representation, term, or condition relating to the subject matter of this Agreement not incorporated herein will be binding on the Parties.

19.3. Applicable law. The interpretation, construction and effect of this Agreement and the rights and obligations of the Parties hereto shall be governed by the laws of the Republic of South Africa.

19.4. Jurisdiction. The Client consents to the jurisdiction of the Magistrates Court in terms of Section 45 of the Magistrates Court Act No. 32 of 1944 (as amended), notwithstanding that the claim of ViljieCo exceeds the normal jurisdiction of the Magistrates Court as to amount. ViljieCo is entitled, in its discretion, to proceed against the Client in any other Court of competent jurisdiction, notwithstanding the aforegoing consent to jurisdiction.

19.5. Severability. Each provision of this Agreement is, notwithstanding the grammatical relationship between that provision and the other provisions of this Agreement, severable from the other provisions of this Agreement.

19.6. Invalidity. Any provision of this Agreement, which is or becomes invalid, unenforceable or unlawful in any jurisdiction shall, in such jurisdiction only, be treated as pro non scripto to the extent that it is so invalid, unenforceable or unlawful, without invalidating or affecting the remaining provisions of this Agreement which shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such invalid, unenforceable or unlawful provision if they were aware of such invalidity, unenforceability or unlawfulness at the time of execution of this Agreement. Parties shall use their reasonable endeavours to achieve the purpose of the invalid or unenforceable provision by a new legally valid provision.

19.7. Variation, Amendment and Cancellation. No contract or agreement varying, adding to, amending, deleting from or cancelling this Agreement shall be effective unless reduced to writing and signed by or on behalf of all the Parties. Moreover, it is agreed that this clause is expressly included in the non-variation aspect of this Agreement, and accordingly, this clause cannot be varied unless reduced to writing and signed by all Parties.

19.8. Waiver and Indulgence. No waiver by any Party of any provision, right or breach of provision, of or under this Agreement shall be effective unless reduced to writing and signed by the Party granting the waiver. Such waiver shall affect only the matter specifically identified and shall not extend to any other matter, provision or breach. No latitude, extension or other indulgence, which may have been given or allowed by any Party (the “grantor”) to any other Party (the “grantee”) in respect of any obligation herein shall under any circumstances operate as a waiver, abandonment or novation of, or other affect, any of the grantor’s rights in terms hereof or arising herefrom, or preclude the grantor from enforcing at any time and without further notice, strict and punctual compliance with each and every provision of terms hereof.

19.9. “Signed”. Where this Agreement requires that any variation, amendment, document, notice or similar is signed by the Parties, whether as a variation to this Agreement or otherwise, "signed" or any cognate expressions shall not be interpreted as requiring the Parties' physical signature, and shall specifically include a signature by way of electronic signature, as such term is defined in the Electronic Communications and Transactions Act, no 25 of 2002, as amended.

19.10. “In writing” or any cognate expressions shall not be interpreted as requiring to be in ink or in manuscript and shall specifically include electronic mail or a similar manner as described in the Electronic Communication and Transactions Act, no 25 of 2002.

19.11. Force Majeure. The Parties shall have no liability to each other if they are prevented from or delayed in performing their obligations, or from carrying on their business, due to acts, events, omissions or accidents beyond their reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of service providers or sub-contractors, provided that notification of such event and it’s expected duration is given by the party affected by the force majeure event to the other party.

19.12. Representation. The Client may not rely on any representation which allegedly induced the Client to agree to these terms and conditions unless that representation is recorded herein.

19.13. Survival of Terms. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

19.14. Assignment and Sub-Contracting. This Agreement is specific to ViljieCo and the Client and neither party shall be entitled to cede or assign its rights and/or delegate its obligations, either partially or entirely, to a third party, without the prior written consent of the other party.

20. Client’s Undertaking and Warranties

20.1. The Client and the signatory warrant that the information furnished is true and correct.

20.2. The Client undertakes to notify ViljieCo in writing within 7 (seven) days of any changes of any of the information and/or personal information set out herein. 

20.3. The Client warrants that it/he/she has read, understood, and hereby accepts all the terms and conditions embodied herein.

20.4. The Client warrants that it has the authority and power to sign this Agreement and that it will establish binding and valid obligations.

20.5. The Client’s representative and signatory warrants that he/she is duly authorised to sign this Agreement on behalf of the Client.

21. Signature and Counterparts

21.1. This Agreement may be executed by the Parties in separate counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement.

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