Exhibit 10.16
AGREEMENT
between
NEDCOR BANK LIMITED
of 000 Xxxx Xxxxxx, Xxxxxxx
and
NET1 PRODUCTS (PROPRIETARY) LIMITED
of 0xx Xxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxx Xxx Xxxxx Xxxxxx xxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxxx.
WHEREBY THE PARTIES AGREE AS FOLLOWS-
1. INTERPRETATION
1.1. In this agreement, unless otherwise required or indicated by the
context, any reference to the singular shall include the plural and
vice versa, any reference to a gender shall include the other genders,
any reference to a natural person shall include juristic persons and
vice versa, and the following terms shall have the meanings assigned
to them hereunder, namely-
1.1.1. "ABSA" means ABSA Bank Limited together with all its wholly-owned
subsidiaries;
1.1.2. "assignment date" means 8 February 1996, being the date with
effect from which Net1 assigned the patent to Messrs SCP Belamant
and AP Mansvelt and they in turn assigned the patent to Holdings;
1.1.3. "bank" means a bank as defined in the Banks Act 94 of 1990, as
amended;
1.1.4. "copyrighted works" means the UEPS (as it was at the effective
date) consisting of programmes and programme modules written for
smart cards
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and terminals; details of such programmes and programme modules
which provide functions as listed in Appendix 1 hereto;
1.1.5. "copyrighted products" means the copyrighted works and the
Megalink System and all works embodied therein as at the
effective date;
1.1.6. "effective date" means, notwithstanding the date of signature of
this agreement, 24 September 1992;
1.1.7. "FTMs" means Funds Transfer Machines which customers will access
with personalised smart cards in order to utilise the UEPS and
carry out certain transactions thereon;
1.1.8. "FNB" means First National Bank of South Africa Limited together
with all its wholly-owned subsidiaries;
1.1.9. "Holdings" means Net1 Investment Holdings (Pty) Limited
(Registration No. 95/03030/07);
1.1.10. "licence" means the licence granted to Nedcor under the patent on
the effective date;
1.1.11. "licensed bank" means any bank, other than Nedcor, that is
granted a licence under the patent to use the UEPS;
1.1.12. "Megalink System", (previously known as the Metrolink System"),
means the switching and settlement system (as it was at the
effective date) necessary to operate the UEPS;
1.1.13. "Megalink System documentation" means-
1.1.13.1. the set of documents, printout specifications, file
specifications and all manuals which collectively contain a
complete description and definition of all operating
conditions of the Megalink System;
1.1.13.2. all source code listings of the programmes and programme
modules making up the Megalink System (including the most
current) being, or to be, used by Nedcor, in the language in
which they are written and in such detail as to enable Net1
to operate, maintain and modify the Megalink System;
1.1.13.3. operating manuals and user guides;
1.1.14. "Nedcor" means Nedcor Bank Limited (Registration No. 51/00009/06)
and all its subsidiaries of which it is the sole or majority
shareholder;
1.1.15. "Net1" means Net1 Products (Proprietary) Limited (Registration
No. 89/05779/07);
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1.1.16. "Patents Act" means the Patents Act 57 of 1978, as amended;
1.1.17. "patent" means Patent No. 90/7106 together with all patents of
addition, if any, granted to Net1 prior to the effective date in
respect of additions to, improvements in and/or modifications of
the UEPS;
1.1.18. "patentable improvement" means any existing or future addition
to, improvement in and/or modification of the UEPS in respect of
which the patentee is granted or, upon application under the
Patents Act, would probably be granted, a patent of addition or
an independent patent;
1.1.19. "patentee" means the patentee from time to time in respect of the
patent including persons to whom the patent is assigned;
1.1.20. "POS devices" means Point of Sale devices which will be utilised
by retail outlets to, allow customers to transact the purchase
and sale of goods or services at such outlets by means of the use
of smart cards;
1.1.21. "smart card" means the customer card which when utilised in
conjunction with the copyrighted works and the terminals will
allow the customer access to the UEPS;
1.1.22. "Standard" means Standard Bank of South Africa Limited together
with all its wholly-owned subsidiaries;
1.1.23. "subsidiary" means, save where the term is otherwise restricted
in terms of this agreement, a subsidiary as defined in section
1(3) of the Companies Act, 1973;
1.1.24. "system documentation" means-
1.1.24.1. the set of documents, printout specifications, file
specifications and all manuals which collectively contain a
complete description and definition of all operating
conditions of the copyrighted works;
1.1.24.2. all source code listings of the copyrighted works (including
the most current) being, or to be, used by Nedcor, in the
language in which they are written and in such detail as to
enable Nedcor to operate, maintain and modify the
copyrighted works;
1.1.24.3. operating manuals and user guides;
1.1.25. "terminals" means FTMs, POS devices and all other terminal
devices (if any) which when utilised in conjunction with smart
cards will enable customers to utilise the UEPS and carry out
certain transactions thereon;
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1.1.26. "territory" means the Republic of South Africa (as constituted on
31 May 0000), Xxxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxxxxx, Mozambique
and Zimbabwe;
1.1.27. "the/this agreement" means this agreement together with all
schedules and appendices hereto;
1.1.28. "UEPS" means the Universal Electronic Payment System designed by
Net1, as described and detailed in the complete specification to
Net1's application for Patent No. 90/7106, together with all
patentable improvements as at the effective date, and including
functions listed in Appendix 1 hereto.
1.2. The clause headings in this agreement have been inserted for
convenience only and shall not be taken into account in its
interpretation.
1.3. This agreement shall be governed by and construed and interpreted in
accordance with the laws of the Republic of South Africa.
2. INTRODUCTION
2.1. The parties record that:
2.1.1. on and with effect from the effective date and subject to the
terms and conditions set out in this agreement, Net 1 granted to
Nedcor and Nedcor accepted, a non-exclusive licence under the
patent to use the UEPS and all patentable improvements, if any,
effected prior to the effective date, within the territory for
the full term of the patent;
2.1.2. with effect from the assignment date, Net 1 assigned the patent
to SCP Belamant and AP Mansvelt who in turn assigned the patent
to Holdings, in both instances subject to the licence (still to
be recorded in the patent register) and the terms and conditions
upon which the licence was granted to Nedcor, as set out in this
agreement.
2.2. Pursuant to the assignments of the patent as recorded in 2.1.2 above,
Net1 shall forthwith after signature hereof enter into a written
agreement with Nedcor, SCP Belamant, AP Mansvelt and Holdings in terms
of which inter alia:
2.2.1. with effect from the assignment date, Net1 shall cede and assign
to SCP Belamant and AP Mansvelt all its rights and obligations in
terms of and pursuant to this agreement and SCP Belamant and AP
Mansvelt shall cede and assign all such rights and obligations to
Holdings; and
2.2.2. Net1 shall warrant unto and in favour of Nedcor, that SCP
Belamant, AP Mansvelt and Holdings have at all times since the
assignment date complied fully with the terms of this agreement
and will continue to do so for the full term of the patent.
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3. NEDCOR LICENCE
3.1. Net 1, with the assistance of Nedcor to the extent necessary, shall
procure that the licence is recorded in the patent register as soon as
possible after signature hereof and Nedcor will bear the legal costs
of such recordal. Save for these legal costs (estimated at R1000,00),
no consideration whatsoever is or shall become payable by Nedcor for
either the licence or its use of the UEPS pursuant to the licence.
3.2. Net1 declares and warrants unto and in favour of Nedcor that-
3.2.1. as at the effective date and up to the assignment date, Net1 was
the sole patentee of the patent, including all patents of
addition (if any) granted in respect of patentable improvements,
that the patent was of full force and effect and that Net1 was
entitled to grant a licence under the patent to Nedcor to use the
UEPS within the territory;
3.2.2. save for the licence granted to Nedcor on the effective date and
the licence granted to Megalink (Proprietary) Limited prior to
the effective date, which latter licence Net1 warrants shall be
terminated as soon as Megalink (Proprietary) Limited requests
such termination -
3.2.2.1. Net1 to the best of its knowledge but subject to any
agreement(s) or arrangement(s) that may have been concluded
on or after the effective date between Nedcor and any one or
more of ABSA, FNB and Standard, has not granted to any bank
any licence or any option or any other right to acquire any
licence under the patent or any other rights whatsoever, to
use the UEPS within the territory;
3.2.2.2. none of SCP Belamant, AP Mansvelt and Holdings have granted
to any bank any licence or any option or any other right to
acquire any licence under the patent or any other rights
whatsoever, to use the UEPS within the territory;
3.2.3. save for the assignment of the patent to SCP Belamant and AP
Mansvelt and the subsequent assignment to Holdings (both of which
assignments were expressly subject to the licence and the terms
and conditions upon which the licence was granted, as set out in
this agreement), none of Net1, SCP Belamant, AP Mansvelt and
Holdings have granted any option or any other right to any third
party to acquire all or any of the right, title and interest in
and to the patent, or any part thereof;
3.2.4. the patent and all rights thereunder are of full force and effect
and Net1 shall use all reasonable endeavours to ensure that the
patent and all rights under the patent will remain of full force
and effect for the full term of the patent;
3.2.5. Net1 shall, as and when requested by Nedcor, join Nedcor in
defending any claim by any third party that the UEPS or Nedcor's
use thereof,
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infringes any patent, copyright or other intellectual property
right(s) of such third party.
4. IMPROVEMENTS ETC
4.1. Net1 shall promptly disclose to Nedcor, prior to any disclosure
thereof to any other person, full details of all improvements,
additions, enhancements, adaptations and modifications to the UEPS
from time to time (hereinafter collectively referred to as
"improvements"), whether patentable or otherwise, and, subject to the
parties agreeing terms, Nedcor shall be entitled to use such
improvements in conjunction with the UEPS within the territory. Net1
shall render reasonable assistance to Nedcor in understanding,
evaluating and implementing any such improvements, free of charge.
4.2.
4.2.1. Should Net1 and Nedcor not agree terms for Nedcor's use of any
improvements in accordance with 4.1 above, Net1 shall not
thereafter agree terms with any other person in respect of any
one or more of such improvements, without first offering such
improvements to Nedcor in writing upon the same terms that Net1
would be willing to agree with such other person and disclosing
to Nedcor the identity of such person.
4.2.2. Should any offer by Net 1 to Nedcor in terms of 4.2.1 above not
be accepted in full and in writing within 14 (fourteen) days
after receipt thereof, the offer will be deemed to have been
declined and, subject to 5.5 below, Net1 may then offer such
improvements in writing to such other person as referred to in
4.2.1 above upon the same terms as those offered by Net 1 to
Nedcor.
4.2.3. Should an offer by Net 1 pursuant to 4.2.2 above not be accepted
in full and in writing within 14 (fourteen) days after the expiry
of the 14 (fourteen) day period referred to in 4.2.2 above, such
offer shall be deemed to have expired and Net1 shall not
thereafter agree terms with any person in respect of the
improvements without again following the procedure set out in
this clause 4.
4.3. If Net1 is granted an independent patent in respect of any improvement
on which the parties agreed terms in accordance with 4.1 above, it
shall forthwith grant to Nedcor a non-exclusive licence to use such
improvement in conjunction with the UEPS within the territory in
accordance with the agreed terms and otherwise mutatis mutandis upon
the terms and conditions set out in this agreement.
5. BANK LICENCES
5.1. Net1 shall not-
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5.1.1. grant any licence or other rights under the patent to any bank or
any subsidiary of any bank, unless nominated in writing by
Nedcor, nor in any manner whatsoever, whether directly or
indirectly and whether by way of any act or omission on its part,
permit or enable any licensee under the patent, including any
licensed bank or any licensed subsidiary of any bank, to do so;
5.1.2. offer or supply to any bank or any subsidiary of any bank any
system(s) that would compete with or replace the UEPS, without
the prior written consent of Nedcor.
5.2. If and when requested by Nedcor in writing, Net1 shall grant to each
of ABSA, FNB and Standard and to each other bank nominated by Nedcor,
a non-exclusive licence under the patent to use the UEPS within the
territory for the full term of the patent.
5.3. Unless Nedcor otherwise notifies Net1 in writing-
5.3.1. no consideration whatsoever, other than the legal costs of
recording each licence in the patent register, shall be payable
by ABSA, FNB or Standard for either its licence pursuant to any
request by Nedcor to Net1 in accordance with 5.2 above or the use
of the UEPS pursuant to the licence;
5.3.2. save for the terms (if any) upon which ABSA, FNB and Standard
would be entitled to use patentable improvements, which terms
will be subject to 5.5 below and otherwise as agreed by each of
them with Net1, the terms of the licences granted to any or all
of ABSA, FNB and Standard shall be the same as those applicable
to Nedcor under its licence.
5.4. Subject to 5.5 below, licences granted to banks other than ABSA, FNB
and Standard shall be on such terms as may be agreed by Net1 and the
bank concerned, provided that no such bank shall be granted a licence
upon terms more favourable than those applicable to Nedcor under its
licence.
5.5. Save with Nedcor's prior written consent, Net1 shall neither-
5.5.1. permit any bank to use any patentable improvement in conjunction
with the UEPS, nor
5.5.2. utilise its expertise and experience in respect of the UEPS for
the benefit of any bank to the exclusion of Nedcor, provided that
Nedcor shall not unreasonably withhold its consent to such
utilisation.
6. FURTHER LICENCES
6.1. Subject to the restrictions imposed on it in terms of this agreement,
Net1 shall be entitled to grant licences under the patent to
whomsoever it wishes.
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6.2. Net1 shall, within 10 (ten) days after granting any licence under the
patent, notify Nedcor in writing of the identity of the licensee.
7. INFRINGEMENTS AND BREACH OF LICENCES
7.1. Should any bank infringe the patent or should any licensed bank or
licensed subsidiary of any bank, breach the terms of its licence under
the patent in any respect other than non-payment of any consideration
due to Net1, Nedcor shall be entitled at its cost and in its name, if
permissible under the Patents Act, otherwise in the name of Net1, to
take whatever action it deems appropriate in respect of such
infringement or breach, including court proceedings, and Net1 shall
cooperate fully with Nedcor in whatever action it takes. Without
limiting the generality thereof, such cooperation shall include Net1-
7.1.1. notifying Nedcor of any such infringement or breach and the
details thereof;
7.1.2. furnishing Nedcor with all necessary powers of attorney and
resolutions to pursue whatever action it takes; and
7.1.3. affording Nedcor full access to all relevant records and
documents for the purpose of whatever action it takes.
7.2. Nedcor hereby indemnifies Net1 against any liability for costs which
may be incurred in pursuance of the provisions of 7.1 above.
7.3. Save with the prior written consent of Nedcor, Net1 shall not take any
action whatsoever against any licensed bank or licensed subsidiary of
any bank, that breaches its licence under the patent, unless such
breach is in respect of non-payment of any consideration due to Net1.
7.4. Should any entity, including any bank, infringe the patent, Net1 shall
be entitled at its cost to take whatever action it deems appropriate
in respect of such infringement, including court proceedings, and,
save in respect of any bank in accordance with 7.1 above, Nedcor shall
not be entitled to take any action whatsoever in respect of any such
infringement without the prior written consent of Net 1.
8. SMART CARDS
Nothing in this agreement shall preclude Net1 from marketing and
supplying smart cards and terminals to licensed banks or to their
subsidiaries that are licensed under the patent to use the UEPS. In
this regard, Net1 records that it is its intention to levy-
8.1. all licensees nominated by Nedcor, other than ABSA, FNB and Standard
unless otherwise advised by Nedcor in writing; and
8.2. all licensees nominated by ABSA, FNB and Standard;
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with a charge equal to 3,5% (three comma five percent) of the purchase
price of each and every smart card purchased by them from suppliers other
than Net1.
9. MARKETING
9.1. Net1 acknowledges that Nedcor has made the UEPS available to the South
African Breweries Group ("SAB") and intends making it available to PayNet,
the medical care industry and buying associations (hereinafter
collectively referred to as "the potential UEPS users"), and that, with
Nedcor's participation, SAB is currently using the UEPS in its business
and, it is anticipated, will continue to do so in the future.
9.2. Net1 undertakes unto and in favour of Nedcor that it will not in any
manner whatsoever compete with Nedcor in the marketing and supply of UEPS
products and services related thereto, to SAB and the potential UEPS
users, nor will Net1 offer or supply to any of SAB and the potential UEPS
users any alternative systems that would compete with or replace the UEPS.
The aforegoing shall not however preclude Net1 from marketing and
supplying smart cards, terminals and other computer hardware to SAB and
the potential UEPS users.
9.3. Whenever Net1 markets any system that will require the participation of a
bank, eg. any system that provides for or permits settlement through a
bank, Net1 shall offer such participation to Nedcor to the exclusion of
all other banks, and provided that Nedcor wishes to accept appointment as
the participating bank and its proposed response times and pricing in
respect of such participation are competitive with those of the other
major banks in South Africa, Net1 shall procure that Nedcor is appointed
as the participating bank in respect of the system.
9.4. Should Nedcor fail to respond to any offer of participation in respect of
any system within a reasonable time after receipt of the offer, the offer
shall lapse and Net1 shall be entitled to offer the participation to any
other licensed bank.
10. COPYRIGHT
10.1. With effect from the effective date-
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10.1.1. Nedcor hereby assigns, transfers and makes over to Net1, which hereby
accepts, a 50% (fifty percent) share of the undivided complete
copyright in the copyrighted products within the territory; and
10.1.2. Net1 hereby assigns, transfers and makes over to Nedcor, which hereby
accepts, a 50% (fifty percent) share of the undivided complete
copyright in the copyrighted products in all countries of the world
outside the territory;
so that, as from the effective date, Nedcor and Net1 shall jointly own
the complete copyright in the copyrighted products in equal undivided
shares in all countries of the world.
10.2. Pursuant to 10.1 above and subject to the restrictions stated in this
agreement, each of Nedcor and Net1 shall be entitled, at its own cost and
without recourse to the other of them in respect of any such costs, and
upon such terms and conditions as each of them deems fit and without
reference to the other of them-
10.2.1. to reproduce the copyrighted products, or any part thereof, in any
manner or form;
10.2.2. to market, sell and generally exploit the copyrighted products, or any
part thereof, anywhere in the world as if it was the sole owner
thereof, subject however to the express reservation of their joint
copyright therein and provided that neither of them shall grant any
exclusive rights whatsoever to any third party in respect of the
copyrighted products, or any part thereof;
10.2.3. to grant non-exclusive licenses to third parties to use the
copyrighted products, or any part thereof, anywhere in the world;
10.2.4. to register (insofar as it is capable of registration) their joint
ownership of the copyright in the copyrighted products anywhere in the
world, provided that neither of them shall effect any such
registration in any manner which adversely affects or otherwise
detracts from their joint ownership of the copyright therein;
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10.2.5. to effect improvements, modifications, adaptations, enhancements
and additions to the copyrighted products; and
10.2.6. to exercise and enforce all rights and claims against third
parties arising out of any infringements of the copyright in the
copyrighted products as though it were the sole owner of the
copyright. For this purpose, each of Nedcor and Net1 shall be
entitled to exercise and enforce all such rights and claims in
its own name and, where necessary, in the name of the other,
provided that notwithstanding anything to the contrary herein
contained, each of Nedcor and Net1 hereby indemnifies the other
against all and any costs (including attorney and client costs)
which may be incurred by or awarded against the other as a
consequence of the exercise and enforcement of such rights. If
either party sues in the name of the other, the other party shall
be entitled to require the party suing in its name to give
reasonable security for the payment of such costs prior to it
taking any steps to exercise and enforce such rights and claims.
Each of Nedcor and Net1 shall render reasonable assistance to the
other to enable it to exercise its rights and enforce the claims
contemplated by this clause 10.2.6.
10.3. Save with the prior written consent of the other of them, which
consent shall not be unreasonably withheld, neither Nedcor nor Net1
shall be entitled to assign its share of the copyright in the
copyrighted products, or any portion of its share, to any third party
or, save as provided in 10.2 above, to otherwise exploit or deal with
the copyrighted products, or the rights of copyright therein, in any
manner whatsoever.
10.4. Notwithstanding that the copyright in the copyrighted products will be
jointly owned by Nedcor and Net1, each of them shall be entitled to
retain as its sole and absolute property, all income and other monies
derived by it from the exercise of its rights in terms of 10.2 above.
10.5. Each of Nedcor and Net1 hereby warrants unto and in favour of the
other of them, that it has not prior to the signature hereof-
10.5.1. assigned or purported to assign the copyright in the copyrighted
products, or any share thereof, to any third party, or
10.5.2. granted or purported to grant any exclusive rights in respect of
the copyrighted products, or the rights of copyright therein, to
any third party.
10.6. Nedcor and Net1 each hereby indemnifies the other of them against any
claims resulting from or arising out of the exercise of their
respective rights in terms of this clause 10. and their respective
dealings with the copyrighted products and the copyright therein,
including, without limiting the generality of the aforegoing-
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10.6.1. claims for infringement of any third party's intellectual
property rights, including copyright; and
10.6.2. claims for consequential or incidental damages.
10.7. Should either Nedcor or Net1 (hereinafter referred to as "the
defaulting party") breach any term or condition of 10.3 above in any
manner whatsoever, such breach will be deemed to be an infringement of
the other party's rights of copyright in the copyrighted products,
and, without prejudice to whatever other rights and remedies it may
have against the defaulting party in terms of this agreement and in
law, such other party shall be entitled to exercise and enforce
against the defaulting party all its rights and claims arising out of
or resulting from such infringement, as if such other party were the
sole owner of the copyright in the copyrighted products and the
defaulting party had no rights of copyright therein.
11. CONFIDENTIAL INFORMATION
11.1. Neither party shall at any time divulge or disclose to any third party
any information concerning the affairs of the other party which may be
communicated to it or which otherwise comes into its possession,
unless such information becomes publicly available through no fault of
such party.
11.2. Neither party shall use, exploit or divulge or disclose to any third
party any business systems or methods, proprietary systems or
application programs of the other party of which it may gain knowledge
while working with the other party or in the course of performing its
obligations in terms of this agreement, except with the prior written
consent of the other party.
11.3. This clause is severable from the rest of this agreement and shall
remain valid and binding on the parties notwithstanding any
termination of this agreement.
12. BREACH
12.1. Should Net1 at any time in contravention of 5.1 above, grant any
licence or other rights under the patent to any bank or any subsidiary
of any bank or should any licensee under the patent do so pursuant to
any failure of Net1 to comply with its obligations in terms of 5.1.1
above, then and in such event and without prejudice to whatever other
claims Nedcor may have against Net1 as a result of or arising out of
any such breach, including any claim for damages, Net1 shall, on
written demand from Nedcor and free of any consideration, cede and
assign to Nedcor in writing all its right, title and interest in and
to-
12.1.1. each and every agreement in terms of which Net1 has granted any
licence(s) and/or other rights under the patent to any bank or
any subsidiary of any bank; and
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12.1.2. all claims that Net1 may have from time to time should any
licensed bank(s) acquire smart cards from persons other than
Net1;
and deliver to Nedcor all the agreements referred to in 12.1, above
and Net1 shall not thereafter grant or attempt to grant any licence or
other rights under the patent to any bank or any subsidiary of any
bank, save with the written consent of Nedcor which consent may be
withheld by Nedcor in its absolute discretion.
12.2. Subject to the provisions of 12.1 above, should either party breach
any term of this agreement and fail to remedy such breach within 30
(thirty) days, or such longer period as may be reasonable in the
circumstances, of receipt of written notice calling upon it to do so,
the other party shall be entitled to recover from the party in breach
such damages as it may suffer or to claim such other relief as it may
in law be entitled to, as a result of or arising out of any such
breach, provided that neither party shall be entitled to terminate or
cancel this agreement by reason of any breach thereof.
13. ARBITRATION
13.1. Any dispute between the parties relating to any matter arising out of
this agreement or the interpretation thereof, including any dispute as
to the respective rights and obligations of the parties in terms of
this agreement or arising out of any breach of this agreement, and the
appropriate relief in the event of any breach of this agreement, shall
be submitted to and decided by arbitration, and the arbitrator will be
entitled to decide the dispute in accordance with what he considers to
be just and equitable in the circumstances.
13.2. Either party to this agreement may demand that a dispute be referred
to arbitration by giving written notice to that effect to the other
party.
13.3. This clause shall not preclude either party from obtaining interim
relief on an urgent basis from a court of competent jurisdiction
pending the decision of the arbitrator.
13.4. The arbitration referred to in 13.1 above shall be held -
13.4.1. at Johannesburg;
13.4.2. in a summary manner, i.e. on the basis that it shall not be
necessary to observe or carry out either-
13.4.2.1. the usual formalities or procedures (e.g. there shall not be
any pleadings or discovery); or
13.4.2.2. the strict rules of evidence;
13.4.3. immediately and with a view to its being completed within 21
(twenty-one) days after it is demanded;
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13.4.4. otherwise (but subject to 13.5.1 and 13.5.2 below) under the
provisions of the Arbitration Act No. 42 of 1965 (as amended from
time to time).
13.5. The arbitrator shall be, if the matter in dispute is-
13.5.1. primarily an accounting matter, an independent accountant agreed
upon by the parties, or, failing agreement within 14 (fourteen)
days after delivery of the notice referred to in 13.2 above, an
accountant selected and appointed by the President for the time
being of the South African Institute of Chartered Accountants at
the request of either party;
13.5.2. any other matter, a practising advocate or attorney of
Johannesburg of at least 15 (fifteen) years' standing, agreed
upon by the parties, or, failing agreement within 14 (fourteen)
days after delivery of the notice referred to in 13.2 above,
selected and appointed by the Chairman for the time being of the
Johannesburg Bar Council at the request of either party.
13.6. Should the parties fail to agree whether the dispute is primarily an
accounting matter or some other matter, within 7 (seven) days after
delivery of the notice referred to in 13.2 above, the matter shall be
deemed not to be primarily an accounting matter.
13.7. The parties irrevocably agree that the decision in arbitration
proceedings-
13.7.1. shall be final and binding upon the parties;
13.7.2. shall be carried into effect;
13.7.3. may be made an order of any court of competent jurisdiction at
the instance of either party to the dispute.
13.8. This clause is severable from the rest of this agreement and shall
remain valid and binding on the parties notwithstanding any
termination of this agreement.
14. DOMICILIUM AND NOTICES
14.1. The parties hereby choose domicilium citandi et executandi for all
purposes under this agreement at their respective addresses set out in
the heading to this agreement.
14.2. Either party may by written notice to the other, change its domicilium
to any other physical address in the Republic of South Africa and its
telefacsimile number as referred to in 14.3.3 below to any other South
African number, provided that any such change shall only take effect
14 (fourteen) days after delivery of such written notice.
14.3. Any notice to be given by either party to the other shall be clearly
marked for the attention of the Managing Director and shall be deemed
to have been duly delivered-
15
14.3.1. if addressed to the addressee at its chosen domicilium and posted
by pre-paid registered post, on the seventh day after the date of
posting thereof, or,
14.3.2. if delivered to the addressee's chosen domicilium by hand during
business hours on a business day, on the date of delivery
thereof, or,
14.3.3. if sent by telefacsimile to the addressee at its undermentioned
telefacsimile number, on the first business day following the
date of sending thereof
Nedcor-telefacsimile (011) 881-4188
Net1-telefacsimile (011) 880-7080
15. WHOLE AGREEMENT
15.1. This agreement constitutes the entire agreement between the parties in
respect of the subject matter hereof and neither party shall be bound
by any undertakings, representations, warranties or promises not
recorded in this agreement.
15.2. No alteration, variation or consensual cancellation of this agreement
and no addition to this agreement shall be of any force or effect
unless reduced to writing and signed by the parties or their duly
authorised representatives.
16. GENERAL
16.1. No failure, delay, relaxation or indulgence on the part of either
party in exercising any power or right conferred upon it in terms of
this agreement shall operate as a waiver of such power or right nor
shall any such failure, delay, relaxation or indulgence be deemed to
be a novation of the terms or conditions of this agreement.
16.2. Each party shall bear its own costs (including value-added tax) of and
in connection with the negotiation, preparation and execution of this
agreement.
16.3. Neither this agreement nor any part thereof nor any share or interest
therein, shall be assigned or ceded by either party without the prior
written consent of the other.
16.4. This agreement shall inure for the benefit of and be binding upon the
successors in title and permitted assigns of the parties.
16.5. 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. If any term or condition held to be
invalid is capable of amendment to render it valid, the parties agree
to negotiate an amendment to remove the invalidity.
16
SIGNED at
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on 19
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WITNESSES: For and on behalf of
NEDCOR BANK LIMITED
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who warrants that he is duly authorised
SIGNED at
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on 19
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WITNESSES: For and on behalf of
NET1 PRODUCTS (PTY) LIMITED
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who warrants that he is duly authorised
