These terms and conditions apply to the proposal submitted by ILION to the party specified in the covering proposal (“the Client”), and any services provided by ILION pending conclusion of formal agreements, if any.
In these terms and conditions the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
2.1 “Agreement” means these terms and conditions as read with any Proposal to which it is attached or referred to;
2.2 “ILION” means Ilion (Pty) Ltd;
2.3 “ILION Intellectual Property” means the various documents, agreements, templates, ideas, methods, methodologies, procedures, processes, know-how, and techniques and layouts which ILION has created, acquired or otherwise has rights in prior to this Agreement, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in;
2.4 “Client” means the party to whom ILION provides the Services, being the party to whom a Proposal is addressed;
2.5 “Effective Date” means the date upon which ILION first commences the provision of the Services to the Client pursuant to the Proposal;
2.6 “Proposal” means any instruction, proposal, letter of engagement or engagement terms issued orally or in writing, by or to ILION and accepted by the Client or ILION, as is applicable;
2.7 “Services” means the services to be provided by ILION to Client from time to time including, without limitation, as stipulated in a Proposal.
3. Appointment and duration
3.1 The Client appoints ILION to provide the Services, upon the terms and conditions of this Agreement, which appointment ILION accepts.
3.2 The Agreement shall commence on the Effective Date and shall endure thereafter for the period specified in the Proposal (or if not specified, for an indefinite period), provided that either party may cancel this Agreement by providing 1 (one) calendar month’s written notice of such cancellation, provided that in such circumstances, the Client shall nonetheless be liable to pay ILION for all services provided up to the effective date of termination regardless of whether the relevant task or deliverable has been completed by ILION. In the event of this occurring, ILION will bill the Client on a time and material basis in line with the T&M rates used to calculate the cost of the Services in terms of this Proposal.
4.1 As consideration for the Services rendered by ILION hereunder, Client shall pay:
4.1.1 the fees set out in the Proposal, on the terms set out therein; or
4.1.2 if no fees are set out in the Proposal, ILION’s standard hourly rates, as same are increased on an annual basis in March each year;
and all such fees are payable by the Client within 30 (thirty) days of the date of ILION’s invoice in respect thereof or as otherwise stipulated in the Proposal.
4.2 ILION will invoice the Client on a monthly basis for the hours expended in terms of the Proposal. The Client will be billed monthly in arrears and invoices will be emailed to the relevant person concerned.
4.3 Should the Agreement be extended, the monthly team cost will be increased at an agreed rate negotiated at the time of renewal.
4.4 All fees stipulated are exclusive of Value Added Tax or any other withholding tax that may be applicable to such fees, and such taxes shall be added to the relevant fees.
4.5 If services are rendered outside of Johannesburg that require air travel or overnight stay, travel and accommodation for ILION’s personnel, will be for the Client’s account. Air travel will be premium economy class or equivalent; accommodation will be in a 3 (three) star hotel or equivalent and car rental at “B” rate or equivalent. The Client will be responsible for a fixed daily subsistence allowance of £50 (fifty pounds) per resource per day.
4.6 All travel requirements and costs, both locally and internationally will be for the Client account. Travel time to and from work is not for the Client’s account.
4.7 ILION reserves the right to charge interest on any outstanding amounts at the prime rate of interest charged from time to time by its bankers, as certified by any manager of such bank, whose appointment and authority it shall not be necessary to prove, calculated daily and compounded monthly in arrears, from the due date of such payment to the date of actual payment, both days inclusive.
4.8 All Intellectual Property (IP), including documents, diagrams, designs and software code, developed during the course of this engagement for the client, excluding existing ILION IP and frameworks (which shall remain the sole property of ILION), shall vest in the client upon full payment of all invoicing from ILION pursuant to this project.
4.9 In the event that the Client fails to pay an invoice in terms of the agreed payment terms, ILION reserves the right to terminate Services with immediate effect.
5.1 ILION will be an independent contractor and neither ILION nor any member of its staff will be an employee, agent, joint venture with or partner of the Client. Nothing in this Proposal will be interpreted or construed as creating or establishing an employer – employee relationship between the Client and ILION or any member of its staff. ILION further warrants to and in favour of the Client that ILION employs 3 (three) or more full-time employees who are not Connected Persons (as contemplated in the Income Tax Act) and less than 80% (eighty percent) of the ILION’s gross annual income is derived from the Client.
5.2 ILION resources will not be expected to work longer than 8 (eight) hours a day on average over each month. Any overtime work to be billed for will be subject to the prior written approval of the Client.
5.3 Due to the contract being fixed cost based, the monthly charge for this team will be irrespective of whether additional effort is contributed in terms of hours. This fixed cost monthly fee is inclusive of all leave.
5.4 It is agreed that the Client will only be responsible for current leave due to the resources and not accumulative leave dating back prior to the inception of this contract.
5.5 Should a resource need to be replaced, ILION will provide prior written notice of this and your approval of the succession and knowledge transfer will be required.
6. Client roles & responsibilities
To enable ILION to provide the Services, the Client shall, to the extent required by ILION, and at the Client’s expense:
6.1 be responsible for establishing back-up procedures to protect and recover all programmes, data and software provided by ILION or which may be affected by Services;
6.2 provide adequate support to the ILION resources in resolution of any risks and issues as may be identified during the course of the engagement;
6.3 provide electricity, telephone services and other connectivity (including access to networks) at the Client site;
6.4 ensure that the required hardware, software and communication devices are available at the Client site as ILION will not be providing any hardware or software tools for the provision of the Services;
6.5 schedule and ensure availability of the necessary software support and business testing resources during the course of the project;
6.6 ensure that there is sufficient work to keep the resources fully utilised during the term of this Agreement. The Client will liaise with the ILION project manager in this regard.
7. Copyright & ownership
To the extent that ILION utilises any of its property (including, without limitation, the ILION Intellectual Property) in connection with the performance of Services hereunder, such property shall remain the property of ILION and Client shall acquire no right, title or interest in such property.
8. Confidential information
8.1 Each party (“the Receiving Party”) shall treat and hold as secret and confidential all information which it may receive from the other party (“the Disclosing Party”) or which comes known to it during the course of this Agreement. The confidential information of ILION shall include the ILION Intellectual Property and its rates and terms.
8.2 The Receiving Party undertakes and agrees that in order to protect the proprietary interests of the Disclosing Party in and to its confidential information the Receiving Party will not at any time, whether during the currency of this Agreement or thereafter, either use any confidential information of the Disclosing Party or directly or indirectly divulge or disclose any confidential information of the Disclosing Party to 3rd (third) parties, other than to personnel directly involved in the provision of the Services;
8.3 This paragraph 8 (eight) is severable from the rest of this Agreement and shall remain valid and binding on the parties notwithstanding any termination of this Agreement.
8.4 The Confidentiality Agreement to be signed by ILION and the Client will form a substantive part of this Agreement.
9. Limitation of liability
9.1 Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, and subject to the provisions of paragraph 9.2 ILION’s maximum liability for general and/or direct damages for any breach of this Agreement or any wilful or negligent misconduct or omission arising in the provision of Services (or otherwise), shall be limited to an aggregate amount of all the fees paid by the Client to ILION in respect of the Services provided pursuant to this Proposal during the 12 (twelve) month period preceding the date on which the relevant cause of action first arose. Such maximum amount shall be an aggregate amount for all claims thus arising.
9.2 ILION shall not be liable for any loss of profits, goodwill, business, clients, contracts, revenue, the use of money, anticipated savings or data; or any special, indirect or consequential loss and such liability is excluded whether it is foreseen, foreseeable, known or otherwise. For the purposes of clarity it is recorded that the provisions of this paragraph apply whether such loss is direct, indirect, consequential or otherwise.
9.3 Without derogating from the generality of the aforegoing, whilst ILION will make its best efforts to assess the skills of appropriate candidates, it accepts no liability for any loss arising from system downtime or failure, system errors, or any other loss which may result from the services contracted for, or failure to resolve issues.
10. Dispute resolution & arbitration
Any dispute which may arise between the parties shall in the first instance be referred to a joint committee of a director of ILION and a director of Client, or alternates appointed by them, who will use their best endeavours to resolve the dispute within 14 (fourteen) days of the dispute having been referred to them. If the dispute is not resolved in accordance with the aforegoing, it shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation upon either party’s written request.
11. Breach and termination
Should either party commit a material breach of this Agreement and fail to remedy such breach within 14 (fourteen) days of having been called upon in writing by the other party to do so, then and in such event such other party shall be entitled, in addition to any other rights and remedies that it may have in terms of this Agreement or otherwise, including the right to recover damages, to terminate this Agreement.
12. Notices and domicilium
12.1 Each of us select as our respective domicilium citandi et executandi for the purposes of giving or sending any notice provided for or required hereunder the physical addresses set out in the Proposal, or such other address as may be substituted by notice given as herein required.
12.2 Any notice addressed to a party at its physical address shall be delivered by hand, including by way of courier. Any notice shall be deemed to have been given:
12.2.1 if hand delivered, on the day of delivery,
12.2.2 if sent by email, on the date and time of sending of such email, as evidenced by a read-receipt or confirmation of receipt by the recipient.
13.1 ILION warrant that the all deliverables provided will substantially conform with the specifications agreed to by ILION and the Client and that for a period of 1 (one) month from go live all system errors as agreed between ILION and the Client will be fixed free of charge. Thereafter it is incumbent on the Client to enter into a maintenance agreement with ILION.
13.2 Save as provided in paragraph 13.2, ILION hereby excludes and disclaims all warranties, whether express or implied, statutory or otherwise. Without limiting the aforegoing ILION hereby disclaims:
13.2.1 any implied warranties of satisfactory quality or fitness for a particular purpose;
13.2.2 all warranties in respect of 3rd (third) party software applications, utilised by or licensed to the Client by any 3rd (third) party or by ILION pursuant to this proposal.
The Parties (ILION and the Client) agree that neither Party shall, without the prior written consent of the other, either during, or within 12 (twelve) months of the termination of this Agreement, engage, employ or otherwise solicit for employment whether directly or indirectly, any person who during the term of this Agreement was a member of the Staff of the other party involved in the acquisition or provision of Services in terms hereof. To the extent that either Party breaches this provision (“the Defaulting Party”), without derogating from the innocent party’s rights in terms of this Agreement, including the right to claim specific performance, such Defaulting Party shall pay the innocent Party a recruitment fee equal to the gross annual package (which shall be annualised if necessary) paid by the innocent Party to the Staff member concerned. Such amount shall be payable within 30 (thirty) days of commencement of such Staff’s appointment with the Defaulting Party.
15.1 This Agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof and save as otherwise provided herein no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties hereto or their duly authorised representatives.
15.2 No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
15.3 Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
15.4 Neither party shall be entitled to transfer or assign, partially or entirely, any of its rights or obligations under this Agreement to a 3rd (third) party without the prior written consent of the other party.
15.5 This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
15.6 The Rule of construction that an agreement be interpreted against the party responsible for the drafting thereof will not apply.