PARCEL POINT AGREEMENT – TERMS AND CONDITIONS
The provisions of these terms and conditions will apply to the written parcel point agreement (“agreement”) entered into between Pargopoints Proprietary Limited and the Retailer described therein. Terms defined in the agreement will have the same meaning when used in these terms and conditions.
1. TRAINING AND PARGO PROPERTY
1.1. As soon as practicable after the Effective Date, Pargo will provide the Retailer with:
1.1.1. a training manual (“Training Manual“) outlining the procedures to be
followed by the Retailer in respect of the receipt, storage and release of
1.1.2 such marketing and advertising materials as may be required by Pargo to brand the Parcel Point at the Premises (“Pargo Branding”).
1.2. The Retailer (including its employees, agents and contractors) must at all times comply with the Training Manual. Pargo may amend the Training Manual from time to time. Any amendments to the Training Manual will be communicated to the Retailer in writing.
1.3. Pargo may at any time upgrade, replace, substitute, remove or otherwise make changes to any systems and/or components required to operate the Parcel Point, including updating any Software, hardware and/or Pargo Branding.
1.4. The Retailer will, for the duration of the agreement, be solely responsible for the
maintenance of all Pargo Branding. The Retailer agrees to use Pargo Branding solely
as directed by Pargo, in accordance with the agreement and these Terms, and for no other purpose whatsoever.
1.5. On termination of the agreement, the Retailer will timeously remove all Pargo Branding from the Parcel Point and will immediately cease using the Pargo Branding.
2. PAYMENT OF COMMISSION
2.1. Unless otherwise agreed in writing, Pargo will make payment to the Retailer every third month for the Commission accrued during the previous three month period. Payment will be made into the bank account nominated by the Retailer in writing.
2.2. Pargo will, on written request, provide the Retailer with a statement, together with a calculation of the Commission payable to the Retailer in respect of the previous month (“Statement”).
2.3. In the event that the Retailer disputes any Commission payable to it:
2.3.1 the Retailer will notify Pargo within 5 business days of payment of the relevant Commission to the Retailer, following which Pargo will consider the basis of the dispute and the parties will, in good faith, attempt to resolve the dispute within 5 business days;
2.3.2. should the dispute not be resolved by the parties in accordance with clause 2.3.1, it will be referred to an independent auditor of at least 15 years post admission experience, appointed by the Arbitration Foundation of South
Africa. The independent auditor shall act as an expert and shall determine
its own process, as well as liability for its fees, and its decision will be
binding, save in the case of manifest error.
2.4. Pargo may retain any Commission payable to the Retailer for so long as the Retailer is in breach of any part of the agreement and/or these Terms and Conditions.
3. SECURITY AND INSURANCE
3.1. The Retailer is responsible for the security of all Parcels from the time these are received into the Parcel Point at the Premises and until the relevant Parcel is collected from the Parcel Point at the Premises.
3.2. The Retailer will be liable for any loss and/or damage caused to any Parcels while at the Premises, or which otherwise occurs as a result of the negligent and/or intentional conduct of the Retailer (including its employees, agents, subcontractors and/or customers), provided that the Retailer’s liability will be limited to R50.00 (fifty rand) per Parcel.
3.3. Pargo is entitled to recover any amounts payable by the Retailer in terms of clause 3.2 from the Commission due to the Retailer from time to time
4. INTELLECTUAL PROPERTY RIGHTS
4.1. “Intellectual Property” means the intellectual property rights, title and interest in and to the Software and the Services, including the Training Manuals and Pargo Branding and all designs, patents, utility models, business and trade secrets, trademarks and service marks, trade names, concepts, methods, techniques, processes, adaptations, ideas, copyrights, technical specifications, know-how, material and/or products, whether fully developed or otherwise, of which Pargo is the owner from time to time, whether or not registered and including applications for the registration of any of the aforementioned, and the right to apply for the registration of any of these, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
4.2. All Intellectual Property will be the sole and exclusive property of Pargo. The Retailer acknowledges, and warrants in favour of Pargo, that it does not, and will not acquire, any right, title or interest in and to the Intellectual Property.
4.3. The Retailer will not use the Intellectual Property except as expressly set out herein, nor will it modify, sell, copy, sub-licence or allow third-party access to, any of the Intellectual Property.
4.4. On termination of the agreement for any reason whatsoever, the Retailer will immediately cease using the Intellectual Property.
5.1. Each party (“Receiving Party“) may during the course of the agreement acquire and/or will be involved in the creation and development of the other’s confidential information, being such information, which is not readily available to a competitor of the party disclosing such information (“Disclosing Party“) in the ordinary, normal and regular course of business, and which is not readily accessible by or ascertainable to the general public (“Confidential Information“).
5.2. The Receiving Party undertakes that it shall not, for the duration of the agreement or at any time thereafter, directly or indirectly, use, employ, exploit, divulge or disclose to others (except as may be required to carry out its obligations in terms of the agreement) in any manner whatsoever the Confidential Information belonging to the Disclosing Party without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall be incumbent on the Receiving Party to obtain the consent of such third party.
5.3. The Receiving Party shall, timeously on request, return or delete (at the Disclosing Party’s election) all Confidential Information belonging to the Disclosing Party.
5.4. The Retailer agrees and undertakes that it will not disclose or divulge the contents of the agreement and/or the Terms and Conditions to any third party without Pargo’s prior written consent.
5.5. The provisions of this clause 5 shall survive termination of the agreement for any reason whatsoever.
6. EVENT OF DEFAULT
6.1. Should either party:
6.1.1. pass a resolution for its winding-up;
6.1.2. commit an act which is or would be an act of insolvency as contemplated in the Insolvency Act, 1936;
6.1.3. take step to deregister itself, or is deregistered;
6.1.4. allow any judgment against it to remain unsatisfied for a period of 14 days;
6.1.5. enter into a compromise with any of its creditors; or
6.1.6. be liquidated (whether provisionally or finally) or placed under business rescue proceedings;
then the other party shall be entitled, without prejudice to any of its other rights under the agreement or in law, to termination the agreement immediately, on delivery of written notice to the other party.
7. FORCE MAJEURE
7.1. “Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party including any acts of war or public enemy, civil commotion or strife, political or civil disturbance, riot, insurrection, strikes, lock-out, lockdown, interruption of transport, labour dispute, boycott, fire, explosion, flood, storm, infectious or contagious disease, epidemic, pandemic or natural or physical disaster, sabotage, terrorism, acts or omissions of any government, government agency, provincial or local or similar authority, laws or regulations or any acts of God or forces of nature.
7.2. Neither party will be liable or considered in breach of the agreement as a result of any delays or failures of performance of its obligations under the agreement, nor for any loss or damage (whether general, special or consequential) which the other party may suffer due to or resulting from such delay or failure, if and to the extent that such delay or failure is caused by a Force Majeure event. If a Force Majeure event occurs, the affected party shall notify the other party as soon as reasonably possible of the nature and extent of the Force Majeure event.
7.3. Should a Force Majeure event continue for a period of more than 30 calendar days, either party shall be entitled to terminate the agreement on written notice to the other party. During a Force Majeure event, the affected party will use its best endeavours to mitigate its loss and an obligation to continue to perform in terms of the agreement to the extent reasonably possible.
7.4. Notwithstanding anything to the contrary, a party may only rely on Force Majeure, if and to the extent that:
7.4.1. such event is not within the reasonable control, directly or indirectly, of the relevant party;
7.4.2. the relevant party has taken all commercially reasonable efforts to prevent or avoid such event or mitigate the effect of such event on its ability to
perform its obligations under the agreement, and which it could not
reasonably have been expected to avoid; and
7.4.3. such event is not the direct or indirect result of the negligence or the failure of, or caused by, the relevant party.
8. PERSONAL INFORMATION
8.1. For the purposes of this clause 8:
8.1.1. “Data Protection Legislation” means all data protection legislation applicable to either party and to the agreement including, POPI;
8.1.2. “Personal Information” has the meaning ascribed to it in POPI; and
8.1.3. “POPI” means the Protection of Personal Information Act, 2013.
8.1. Pursuant to the agreement, the parties may process Personal Information belonging to each other. Each party hereby consents to the other party processing all such Personal Information.
8.2. In Processing Personal Information, each party undertakes to:
8.2.1 comply with all Data Protection Legislation and not, by act or omission, place the other party in violation of any Data Protection Legislation;
8.2.2. use its best commercial endeavours to prevent a data security breach;
8.2.3. maintain appropriate technical and organisational security measures to protect the security of Personal Information, having considered the:
188.8.131.52. nature of the Personal Information;
184.108.40.206. harm that might result from loss of the Personal Information;
220.127.116.11. state of technological development; and
18.104.22.168. cost of implementing any measures;
8.2.4. safely secure and, where possible, encrypt all Personal Information;
8.2.5. notify the other party immediately on becoming aware of any data security breach and cooperate with the other party concerning any disclosures to affected parties and other remedial measures relating to such data security breach.
9. DISPUTE RESOLUTION
9.1. If a dispute arises in connection with the agreement, the Terms and Conditions, or the termination or invalidity thereof, the dispute shall be settled by mediation and shall be referred to a suitably qualified independent mediator agreed between the parties in writing, or failing agreement, to a suitably qualified independent mediator appointed by the Arbitration Foundation of Southern Africa (“AFSA“).
9.2. If for any reason, a dispute is not settled by mediation, the dispute shall be settled by arbitration. The arbitrator shall be a suitably qualified independent person agreed between the parties in writing, or failing agreement, shall be an arbitrator appointed by AFSA. The arbitration shall be conducted in accordance with the AFSA Rules for Commercial Arbitration.
9.3. Nothing in this clause shall prevent either party from seeking interim and/or urgent relief from a court of competent jurisdiction or for payment of a liquidated amount of money.
10. NO RIGHT TO CEDE
Neither party may cede or transfer any or all of its rights or delegate or transfer any or all of its obligations in respect of the agreement without the prior consent the other party.
11. LEGAL ADDRESS AND NOTICES
11.1. Each of the parties chooses the addresses set out in the Agreement Summary at which to receive notices and legal process in terms of the agreement (“Legal Address”), or as otherwise notified in writing.
11.2. Notices, to be valid, must be in writing, and may be given by e-mail.
11.3. Notices are deemed to have been received on the date of delivery by hand to a responsible person at, or transmission of the email to, the chosen Legal Address, during ordinary business hours. If delivery occurs outside of ordinary business hours, it shall be deemed to have been received at 08h00 SAST on the next business day.
11.4. A written notice actually received by a party shall be valid even if it was not delivered at its chosen Legal Address.
12. GENERAL PROVISIONS
Each of the parties hereby undertakes to:
12.1.1. do all things and sign all documents as may be necessary, to give effect to the provisions of the agreement;
12.1.2. pass all such resolutions which may be required to give effect to the agreement.
12.2. Governing Law
The agreement shall be governed by and interpreted in accordance with South African law.
12.3. Whole Agreement
12.3.1. Any amendment or cancellation of the agreement must be agreed between the parties in writing.
12.3.2. The agreement, together with the Terms and Conditions, encompasses the whole and only agreement between the parties relating to its subject matter. No term, representation, or warranty is binding unless set out in the agreement and/or the Terms and Conditions.
12.3.3. No indulgence or waiver of any provision of the agreement shall be binding unless given by the relevant party in writing.
In the agreement and the Terms and Conditions:
12.4.1. if figures are referred to in numerals and in words and there is a conflict between the two, the words shall prevail;
12.4.2. clauses shall continue to operate after the termination of the agreement if necessitated by their nature;
12.4.3. its provisions shall not be interpreted against the party drafting it;
12.4.4. the words “include”, “including” and “in particular” are by way of example only and shall not limit the generality of any preceding words;
12.4.5. if any provision becomes illegal, invalid or unenforceable, such provision shall be severed, to the extent of its illegality, invalidity or enforceability, from the balance of the agreement; and
12.4.6. the words “other” and “otherwise” shall be interpreted as widely as possible and will not be limited by any preceding words.