Effective date: 24 February 2022
The Partner or its duly authorized agent does hereby agree to the latest terms and conditions for credit facilities with Technology Warehouse and in onsideration thereof The Partner does hereby accept the following terms and conditions:
1. Credit terms
The Applicant agrees that the amount reflected in a Tax Invoice as issued by Technology Warehouse shall be due and payable unconditionally (a) Cash on Delivery; or (b) if The Applicant is a Credit Approved Customer, within the terms granted to you on approval of your account by Technology Warehouse. The settlement is effected only on receipt of cash or due honour of cheque or similar payment instrument and shall be made to Technology Warehouse free of exchange and without deductions of any nature. Any credit facilities granted to The Applicant or allowed by Technology Warehouse is entirely at the discretion of Technology Warehouse and may be withdrawn at any time.
2. Change of address
The Applicant undertakes to notify Technology Warehouse in writing within 7 (seven) days of any change of address.
3. Change of ownership
The Applicant undertakes to notify Technology Warehouse, in writing, within twenty days of any change in Ownership of The Applicant’S business, or should The Applicant be a company, of its share transactions whereby the majority shareholding is affected, failing which notice the entire balance owing, whether due or not, will immediately be deemed to be due and payable by The
Applicant. In addition to the aforegoing, The Applicant acknowledges that immediately upon any change of Ownership in The Applicant any outstanding amount whether due or not shall be deemed to be forthwith payable by The Applicant to Technology Warehouse.
The Applicant and the signatory hereto chooses Domicilium Citandi et Executandi (in other words, the address at which the Applicant and the signatory will accept all notices, legal documents and the like, whether or not the Applicant and/or the signatory is still at the address chosen) for all purposes arising out of this application at the physical address stipulated in Section A, clause 3.3 of this application.
5. Consent to sharing information
The Applicant and any person who may sign the enclosed ACCEPTANCE OF SURETY clause contained further in this document warrants explicitly that Technology Warehouse has consented to:-
5.1 Carry out a credit enquiry from time to time with one or more credit bureaus, credit information agents, credit insurance companies or other creditors (trade references) of The Applicant’S in terms of this agreement;
5.2 Transmit details to credit bureaus, credit information agents, credit insurance companies or other creditors of The Applicant’S of how The Applicant has performed in meeting his/her/its obligations in terms of this agreement. Such information shared is for purposes of making risk management decisions and preventing fraud;
5.3 If The Applicant fails to meet his/her/its commitments to Technology Warehouse, Technology Warehouse may record The Applicant ‘S non-performance with credit bureaus, credit information agents, credit insurance companies or other creditors of The Applicant.
6. Pricing increments
Prices quoted by Technology Warehouse are determined from time to time and are subject to increases, at the discretion of Technology Warehouse. Technology Warehouse shall be entitled to increase the cost of goods delivered or services rendered to The Applicant with prior written notice.
7. Valid orders
In the event of any order being given to Technology Warehouse on an order form reflecting The Applicant’S name as the entity from which the order emanates, such order shall be deemed to have emanated from The Applicant, notwithstanding the fact that such order may have been given or signed by a person not authorized by The Applicant and such order will be deemed to constitute valid
delivery. It is further the sole responsibility of The Applicant to determine that goods ordered are suitable for the purposes of the intended use.
8.1 The Applicant agrees that the signature of any agent, contractor, sub-contractor or employee of The Applicant on Technology Warehouse’s official invoice. Technology Warehouse may deliver by providing an electronic download or access key.
8.2 Any delivery date stated on any order confirmation is approximate only. Technology Warehouse shall not be bound by that date but will make all reasonable efforts to deliver by that date.
8.3 Whilst Technology Warehouse will endeavour to ensure that goods are delivered timeously, it shall not be responsible for any delays in the delivery of such goods, and The Applicant shall not be entitled to refuse acceptance of such late deliveries.
8.4 The risk in and to the goods shall pass from Technology Warehouse to The Applicant when the relevant performance obligations of the transaction(s) are met. Delivery shall be deemed to have taken place when the goods are provisioned from Technology Warehouse to The Applicant.
The Applicant acknowledges Technology Warehouse’s intellectual property rights in the goods and shall not infringe such intellectual property rights.
10. Payment to Technology Warehouse
The customer shall pay the amount on the tax invoice by way of electronic fund transfer (EFT). Payment is due within 30 days from statement. Unless a genuine query is raised in writing with Technology Warehouse within 7 (seven) calendar days of receipt of aforementioned statement, in relation to any specific invoice number contained therein, the contents of the statement shall be deemed and are agreed to be correct. In the event of any payments being transferred to the incorrect banking account, The Applicant shall still be liable to Technology Warehouse for payment. Should Technology Warehouse at any time advise The Applicant of any change to Technology Warehouse’s banking account details The Applicant shall confirm such change with a Manager of Technology Warehouse before effecting any further payments, provided however that nothing contained herein shall be interpreted as obliging Technology Warehouse to afford The Applicant any such indulgence to effect payment after due date.
11. Reservation of ownership
Until such time as The Applicant has paid the purchase price in full in respect of any purchase of goods, the ownership in and to all such goods shall remain vested in Technology Warehouse. Technology Warehouse shall, in its sole discretion, without notice to The Applicant, be entitled to take possession of any such goods which have not been paid for and in respect of which payment is overdue, in which event The Applicant shall be entitled to a credit in respect of the goods so returned being the price at which the goods are sold or the value thereof as determined by Technology Warehouse. The Applicant hereby waives any right it may have for a spoliation order against Technology Warehouse in the event that Technology Warehouse takes possession of any goods.
12. Responsibility for losses, damages or delays
Technology Warehouse will not be in any way responsible or liable for consequential losses, special or indirect damages or any damages or losses caused by or arising from natural disasters, unavoidable accidents of any kind, acts of the State’s enemies, riots, lockouts, cessation of labour, transport delays, shortened hours of labour, insurrection, war, the imposition of any trade boycotts or sanctions of trade restrictions by any government, authority, company or organisation or person or persons, whether within the Republic of Namibia or anywhere else, or any other cause or contingency whatsoever beyond the control of Technology Warehouse.
13. Defaulting in payment
In the event of The Applicant defaulting in making payment of any amount that has become due and owing, then the full balance outstanding (whether due or not) will immediately become due and payable without notice to The Applicant. In the event that The Applicant defaults in a making timeous payment, Technology Warehouse reserves the right to suspend all services to The Applicant. The Applicant will be liable for all costs associated with the suspension of the services, including but not limited to Vendor fees, suspension and reconnection fees.
14. Interest on overdue accounts
Technology Warehouse may charge interest on overdue amounts at the Prime Lending Rate as defined in Section C, plus 5%. If any amount is overdue and Technology Warehouse brings any legal action to collect or engages a collection agency, the Partner will also pay Technology Warehouse‘s reasonable costs of
collection, including attorney fees on the attorney and client scale and collection charges. Any “credit” that Technology Warehouse may owe the Partner, such as a credit for failure to meet a Service Level Agreement, will be applied as an account credit and will not be paid to the Partner as a refund.
15. Proof of Claims
A certificate signed by a manager or any director of Technology Warehouse – whose position and signature shall not be necessary to prove, reflecting the amount owing by The Applicant to Technology Warehouse, in respect of the credit facilities granted to The Applicant relating to The Applicant’s dealings with Technology Warehouse, and of the fact that such amount is due, owing and unpaid shall be considered as adequate proof – on its mere production – of the outstanding amount for the purpose of any action (whether by way of provisional sentence or otherwise), proof of debt on insolvency or for any purpose whatsoever where the amount of such claims is required to be established, and it shall rest with The Applicant to prove that such amount is not owning and/or due and unpaid.
16. Consent to jurisdiction
Notwithstanding the amount which may at any time be owing by The Applicant to Technology Warehouse, the parties do hereby consent, to the jurisdiction of the Magistrate’s Court for the determination of any action or proceeding which may be brought by Technology Warehouse against The Applicant arising out of any transaction between the parties, it being recorded that Technology Warehouse shall be entitled, but not obliged, to bring any action or proceeding in the
17. Recovery of legal /collection costs
Should Technology Warehouse instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against The Applicant in the implementation or protection of Technology Warehouse’s rights, Technology Warehouse shall be entitled to recover from The Applicant all legal costs arising therefrom on the scale as between attorney and client and all recoverable collection charges.
18. Cession of Book debts
18.1 The Applicant does hereby irrevocably cede, pledge, assign, transfer and makeover unto and in favour of Technology Warehouse all of its right, title, interest , claim and demand in and to all book debts of whatsoever nature and description and howsoever arising which The Applicant may now or at any time hereafter have against all and any persons, companies, corporations, firms, Partnerships, associations, syndicates and other legal personae whomsoever (“The Applicant ‘s debtors”) without exception as a continuing covering security for the due payment of every sum of money which may now be due or at any time hereafter be or become owing by The Applicant to Technology Warehouse.
18.2 Should it transpire that The Applicant at any time entered into prior deeds of cession or otherwise disposed of any of the right, title and interest in and to any of the debts which will from time to time be subject to this cession then this cession shall operate as a cession of all The Applicant’s reversionary rights. Notwithstanding the terms of the aforegoing cession, The Applicant shall be entitled to institute action against any of The Applicant’s debtors. All sums of money which The Applicant collects from its debtors shall be collected on Technology Warehouse’s behalf. Technology Warehouse shall at any time be entitled to terminate The Applicant’s right to collect such monies/debts, and the giving of notice of this cession by Technology Warehouse to any debtor of The Applicant shall constitute the termination of the authority of The Applicant to collect its debts on behalf of Technology Warehouse.
18.3 The Applicant shall be obliged to deliver all relevant information in documentary form or otherwise to Technology Warehouse upon demand to enable Technology Warehouse to verify, identify and claim monies owed to The Applicant from third parties.
19. Alteration and Replacement of Terms
19.1 Technology Warehouse may by notice as provided in clause 19.3, amend or substitute all or any of the terms and conditions or Addendums or policies set out or referred to in this document, including any terms, addenda, policies
or documents in or referred to or contained in Section B or Section C hereof.
19.2 Either party may terminate this agreement by written notice to the other party if Technology Warehouse gives notice of amendment in terms of clause 19.3 below and The Applicant responds in writing prior to expiry of the 30 (thirty) day period in clause 19.3 advising or indicating in any manner that it does not accept the change in part or in whole or unconditionally.
19.3 Technology Warehouse may, from time to time, give The Applicant written notice of amendments to this agreement or amendment to any document referred to herein or to any policy or procedure prescribed by Technology Warehouse. Any such amendment will automatically become a part of this Agreement thirty (30) calendar days from the date of the notice. The Applicant shall be bound by such changes on expiry of the notice period unless The Applicant has given notice that it does not accept the proposed change within the aforesaid 30 day period.
20. Partner Terms
Where The Applicant re-sells or purchases any goods or services from Technology Warehouse for resale, the terms of Section C below shall apply in addition to the terms and conditions set out above. In the event of any conflict between the terms in Section B and Section C, the terms of Section C shall prevail to the extent of the conflict.
21. Incorporation of Terms
The following terms and conditions from Section C below shall apply and be read, with suitable changes, as if incorporated herein: 6.5, 6.6, 6.13, 6.14, 7.1, 25.2 and clauses 27 – 41 (inclusive). For purposes hereof, references in Section C to the Partner shall be read as referring to The Applicant.
The Applicant is referred to as the “Partner” in Section C below.
PARTNER TERMS OF SERVICE
The terms and conditions in this Section C set out the terms and conditions of the Agreement between Technology Warehouse (Pty) Ltd, (Reg No: 20161264), (“Technology Warehouse”) and The Applicant named above (referred to hereinafter in Section C, as the “Partner”) relating to the appointment of the Partner as a
Partner and establishes the terms and conditions for the Partner’s non-exclusive entitlement to resell such products, software, goods and services as Technology Warehouse makes available or supplies to the Partner from time to time (“Technology Warehouse products and services”) and the Partner’s participation in the Technology Warehouse Partner Program (the “Program”). Under the Program, Technology Warehouse may provide marketing and promotional support to the Partner related to the Partner’s purchase and licensing of Technology Warehouse products and services for resale to persons intending to use the Technology Warehouse products and services themselves (“End Users”), as specified in this Agreement. The Partner terms of service (Section C) constitutes a separate and divisible agreement with the Partner and may be cancelled separately from the terms and conditions in Section B above should Technology Warehouse so elect. The terms in Section C shall not be read as excluding the terms of Section B above and are additional terms applicable where the Partner is a Partner or purchases Technology Warehouse products and services for resale.
DEFINITIONS USED IN SECTION C:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy as published and amended by Technology Warehouse, from time to time;
“Affiliate” means any and all legal entities which now or hereafter are owned or under the same control of the shareholder of Technology Warehouse. For the purpose of this definition, “control” shall mean an entity in which the
shareholder, holds more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or in respect of which it has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity;
“Agreement” means this Partner Agreement and any schedules and annexures forming part of this Agreement and all amendments thereto;
“Business Day” means 8:00 a.m. – 5:00 p.m, Monday to Friday, excluding public holidays in Namibia.
“Connectivity Solutions” means the provision of data and internet connectivity including fixed line, fiber optic, ADSL, cellular and wireless methods as provided by third party vendors in terms of the vendors contracted solutions. Connectivity Solutions constitute a Technology Warehouse Product for purposes of this Agreement;
“Connectivity Solutions Addendum” means the Addendum, providing for purchase and / or for the resale of Connectivity Solutions, executed by both Parties and containing the terms and conditions relating thereto;
“Customer” means any person or entity that purchases the Technology Warehouse products and services and includes an End User.
“Customer Data” means all of the Customer’s data, records, Personal Information as defined in the Protection of Personal Information Act and the General Data Protection Regulation, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Technology Warehouse
products and services;
“End User” means any person or entity purchasing any Technology Warehouse product or other goods from the Partner for their own use.
“Goods” means any merchandise or services purchased from Technology Warehouse;
“License Mobility” means the ability to migrate software or a computer application from one computer environment to another without need to obtain a new license;
“Managed Services” means any services that are managed by Technology Warehouse;
“Odin Addendum” means the Addendum, providing for purchase or for the resale of certain Technology Warehouse products and services by the Partner via the Odin Software Platform as defined in such Addendum, executed by both parties and containing the terms and conditions relating thereto;
“Order” means: (i) an order that is submitted by the Partner or accepted, including acceptance by delivery or provision of the Technology Warehouse products and services, by Technology Warehouse for the purchase by the Partner of the Technology Warehouse products and services (ii) any other written order (either in electronic or paper form) provided to the Partner by Technology Warehouse and that describes the type or types of Technology Warehouse products and services that are being purchased by the Partner and that is signed by the Partner either manually or electronically, and (iii) the Partner’s use or provisioning of the Technology Warehouse products and services through the Technology Warehouse control panel or any software platform (including the Odin Software Platform);
“Prime Lending Rate” means the prime rate as charged by First National Bank Limited, from time to time, as indicated by a certificate signed by a manager of such bank, whose authority need not be proven;
“Program Materials” means any documents or materials setting out any requirements applicable to the Partner and to the use of Technology Warehouse products and services and participation by the Partner in the Program, as Technology Warehouse publishes from time to time;
“Services” means any software and any services, including support, available from or through Technology Warehouse, from time to time, and described in any order, and includes any services purchased from Technology Warehouse which the Partner self provisions;
“Support” means (i) Technology Warehouse employees with training and experience relative to the services will be available by telephone, electronic chat, or ticket 8 hours per day, excluding weekends and Namibian public holidays and (ii) any additional level of support offered by Technology Warehouse as applicable to the specific custom services ordered by the Partner and as contained in a separate statement of works or Addendum concluded between the parties;
“Windows Virtual Machine” means an emulation of a computer running a Microsoft Windows operating system and providing the user with the functionality of computer hardware running such an operating system.
TERMS OF SERVICE
1. Partner Qualification And Conflict
1.2. The Partner shall not sell Technology Warehouse products and services and services and services without simultaneously contracting to provide the End User with adequate post-sales support as specified in the Program Materials.
1.3. In the event of a conflict between the terms of this Agreement and any other document referred to herein, the conflict shall be resolved as follows: firstly in favour of this Agreement (unless the provisions of any other document state that the provisions of that document shall govern), thereafter in favour of any Addendum, the
2.1. The Partner is an independent contractor engaged in purchasing Technology Warehouse products and services and
services for resale to End Users only. The Partner is not an agent or legal representative of Technology Warehouse for any purpose, and has no authority to act for, bind or commit Technology Warehouse in any manner whatsoever or to make any representations on behalf of Technology Warehouse.
2.2. Nothing in this Agreement or elsewhere shall confer any exclusivity on the Partner or prevent Technology Warehouse appointing other Partners or selling any Technology Warehouse products and services and services to other Partners. The Partner may not appoint sub-Partners nor cede, assign or make over or sub-contract any of its rights or obligations to any third party without the prior written consent of Technology Warehouse, which consent shall not be unreasonably withheld.
2.3. This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to Technology Warehouse or any third party. The Partner shall not have any right to manufacture, reproduce, reverse engineer, use or allow any use of Technology Warehouse products and services and services save as expressly authorized in any license given by the vendor or original equipment manufacturer.
2.4. Save as provided hereafter, the Partner has no authority to make any commitment on behalf of Technology Warehouse with respect to any of the Technology Warehouse products and services and services including but not limited to representations as to the quantities, delivery, modification, interfacing capability, specifications, performance, suitability of software or suitability in specific applications, or otherwise. The Partner shall not make any representation in respect of any Technology Warehouse products and services and services which is not expressly contained in any user documentation produced by the vendor or the original equipment manufacturer or Technology Warehouse or in marketing material supplied or approved by Technology Warehouse. The Partner will not represent itself in any way that implies that the Partner is an agent or branch of Technology Warehouse. The Partner will immediately change or discontinue any representation or business practice reasonably believed to be misleading or deceptive by Technology Warehouse, upon notice from Technology Warehouse.
2.5. The Partner has no authority to modify or extend any warranty offered with Technology Warehouse products and services and services. Any such extension shall be a warranty by the Partner without recourse to or creating any obligation on Technology Warehouse.
2.6. The Partner agrees and acknowledges that the supply of Technology Warehouse products and services and services is at all times subject to the terms and conditions of the vendor’s license and/or distribution agreement. For purposes hereof vendor includes the owner, original equipment manufacturer, Connectivity Solution provider or rights holder of any Technology Warehouse Product, software or platform used to provide Technology Warehouse products and services and services. In the event that a vendor of any Technology Warehouse Product terminates or cancels (for any reason) revokes, limits, withdraws, amends or varies any of the terms of such license or distribution agreement or amends the products granted to Technology Warehouse then the rights of the Partner shall likewise automatically be terminated, cancelled, revoked, limited, withdrawn, amended or varied without any liability arising to Technology Warehouse.
2.7. Technology Warehouse gives no warranty that the Technology Warehouse products and services and services or delivery platform will be available, in their present form or at all, for any period or that they will not be removed or altered by the vendor.
2.8. The Partner accepts that Technology Warehouse is only able to and obliged to make available to the Partner such of the Technology Warehouse products and services and services and delivery platforms as the relevant vendor makes available to Technology Warehouse, from time to time. Technology Warehouse may require the Partner to sign additional agreements or addenda hereto or to attend training prior to selling specific Technology Warehouse products and services and services to the Partner.
2.9. Technology Warehouse reserves the right to modify or remove any of the Technology Warehouse products and services and services or Specifications.
2.10. All Technology Warehouse products and services and services are sold subject to the provisions of this Agreement, all applicable vendor license terms, and to the exclusion of any terms and conditions, the Partner seeks or may seek to impose unless Technology Warehouse has agreed to accept such terms expressly and in writing. Where the vendor requires the Partner or any End User to conclude a separate or further contract or license or agree to any other terms, the Partner shall be required to do so and to ensure that the End User accepts such terms and conditions and terms as the vendor prescribes prior to supplying the Technology Warehouse products and services and services to or allowing the End User to use Technology Warehouse products and services and services.
2.11. The Partner shall ensure that all use of the Technology Warehouse products and services and services complies in all respects with the vendor’s license and all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the Parties or Technology Warehouse products and services and services are subject to, including, without limitation, by means of obtaining any permits, licenses and/or approvals required.
2.12. The Partner shall not engage in and shall, on demand, desist from, any behaviour or acts which, viewed reasonably, reflect negatively on Technology Warehouse or any vendor or which cause Technology Warehouse to be in breach of any obligation to any vendor.
3. Term And Duration
3.1. This Agreement shall commence on the earlier of the date of signature hereof or date of supply or provisioning of any Technology Warehouse products and services, subject to rights of earlier termination and cancellation provided for in this Agreement shall endure until terminated by either Party giving the other not less than a calendar month’s written notice of termination.
3.2. Subscription-based products: The termination of this Agreement, for any reason, shall not affect the status of any license or Technology Warehouse products and services and services or agreement to provide specific Services or Technology Warehouse products and services for a period that extends past the date of termination which were concluded or issued prior to termination, provided that the Partner is not in breach of any obligation to Technology Warehouse thereunder. Save as aforesaid and provided in this Agreement, termination of this Agreement terminates the Partners rights to resell Technology Warehouse products and services and services and not the rights and obligations of the Parties that have arisen as a result of any valid sales prior to termination of this Agreement.
4. The Partner Programs
4.1 The Partner’s rights to resell and use Technology Warehouse products and services and services and any obligation of Technology Warehouse to deliver any Technology Warehouse products and services are at all times conditional on:
4.1.1 compliance by the Partner with the terms of this Agreement, and all other terms and conditions and obligations to Technology Warehouse; and on
4.1.2 Technology Warehouse retaining the distribution rights for and being able to procure the relevant Technology Warehouse products and services and services from the applicable vendor or original equipment manufacturer.
4.2. The Program contains various participation levels. Technology Warehouse may invite the Partner, from time to time, to participate in the co-operative advertising, market development and promotional programs offered by Technology Warehouse as defined in the Program Materials. The Partner may, at its option, participate in such programs during the term of this Agreement. Technology Warehouse reserves the right to terminate or modify such programs, and the Partner’s right to participate in any programs and to set conditions to participation, at any time at its sole discretion.
4.3. The Partner shall use its best efforts to market Technology Warehouse products and services. In doing so, the Partner may use promotional materials supplied by Technology Warehouse. The Partner shall if required to do so by Technology Warehouse, provide a sales and marketing plan for approval by Technology Warehouse. Technology Warehouse may suspend the rights of the Partner to resell Technology Warehouse products and services pending submission of a sales and marketing plan reasonably acceptable to Technology Warehouse. On approval of such plan, the Partner shall be required, at its cost and risk, to comply with such plan. Technology Warehouse must approve in writing all original materials that use Technology Warehouse name or trademarks. Technology Warehouse will assist the Partner in advertising and promoting Technology Warehouse products and services as provided in the Program Materials.
4.4. As defined in the Program Materials, the Partner is required to have sufficient technical knowledge of the Technology Warehouse products and services in general and will have access to appropriate Technology Warehouse sales and technical training. The Partner shall attend, at its cost, training and retraining where reasonably required, as specified and directed by Technology Warehouse, from time to time.
4.5. The Partner shall bear all costs of resale of any Technology Warehouse products and services and of complying with all of its obligations to Technology Warehouse, whether in terms of this Agreement or otherwise.
5.1. Technology Warehouse may accept or reject any Order, in whole or in part, in its sole discretion and may prescribe minimum quantities or values of Orders.
5.2. An Order may be amended by written agreement signed by both parties, or by an exchange of correspondence, including emails, that includes the express consent of an authorized individual for each of the parties. Any such correspondence that adds to or modifies Technology Warehouse products and services shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order. The Partner bears all risks of any misunderstanding or error arising from any oral or written order or amendment that Technology Warehouse agrees to accept or acts on.
5.3. Each Order shall constitute a separate transaction and cancellation by the Partner of any one order shall not entitle the Partner to cancel any other.
5.4. Technology Warehouse reserves the right to cancel any Order prior to delivery and to correct, at any time, any error or omission in any quote or price published or given to the Partner.
6. Payment Of Fees and Charges
6.1. Subject to clause 5.4 above, Technology Warehouse will charge fees and charges in accordance with their price list as published from time to time and in accordance with the order. Where there is no published price, the price shall be the usual, but market-related price charged by Technology Warehouse. Any applicable discounts are subject to timeous payment by the Partner and any rebates or commissions are additionally subject to receipt by Technology Warehouse of payment from the End User or vendor, as the case may be, and compliance by the Partner with all obligations, including those in this Agreement, to Technology Warehouse. Technology Warehouse shall have no obligation to make any payment or provide any rebate in circumstances where Technology Warehouse has not received the funds from the End User or vendor, as the case may be.
6.2. Save where otherwise agreed, Technology Warehouse will issue the Partner with an invoice which shall set out: (i) price, fees and charges for the Technology Warehouse products and services and the date for payment thereof ii) recurring fees, payable in advance monthly, and (ii) for non-recurring fees (such as fees for initial set-up, overages, additional resources, and domain name registration) on the date incurred, or on the first day of the billing cycle that follows the date incurred, at Technology Warehouse’s option.
6.3. Unless otherwise agreed in the Order, the Partners billing cycle for Services forming part of the Technology Warehouse products and services will be monthly in advance, beginning on the date that Technology Warehouse first makes the Services available to the Partner. 6.4. All payments due by the Partner to Technology Warehouse shall be made by way of electronic funds transfer to Technology Warehouse at such place or into such account as instructed by Technology Warehouse in writing from time to time, without any deduction or set-off in the prevalent currencies. The failure of any Customer or End User to make any payment to the Partner shall not excuse the Partner from making any payment to Technology Warehouse or complying with any obligation to Technology Warehouse.
6.5. Technology Warehouse may charge interest on overdue amounts at the Prime Lending Rate, plus 5%. If any amount is overdue and Technology Warehouse brings any legal action to collect or engages a collection agency, the Partner will also pay Technology Warehouse’s reasonable costs of collection, including attorney fees on the attorney and client scale and collection charges. Any “credit” that Technology Warehouse may owe the Partner, such as a credit for failure to meet a Service Level Agreement, will be applied as an account credit and will not be paid to the Partner as a refund.
6.6. Charges that are not reasonably disputed in writing within fourteen (14) days of the date charged are agreed and deemed to be accurate.
6.7. The Partner authorises Technology Warehouse to obtain a credit report at any time during the term of the Agreement and to report any non-payment or delinquency to the credit bureaus.
6.8. To ensure continuous Services to End Users in the event of non-payment by the Partner, Technology Warehouse reserves the right and shall be entitled, but not obliged, to bill the End User directly until the Partner’s account with Technology Warehouse is rectified and brought up to date. The Partner hereby agrees and consents to the foregoing and undertakes, on-demand, to effect such cessions and assignments and to sign any documents and take any steps reasonably required to give effect to the foregoing.
6.9. Technology Warehouse may suspend all or any supply or use of or access to Technology Warehouse products and services (including Services provided pursuant to any unrelated Order or other agreement Technology Warehouse may have with the Partner) and any delivery platform (such as the Odin Software Platform) if any payment is not received by Technology Warehouse or is not paid to Technology Warehouse timeously and in full for any reason. The Partner will be liable for fees and charges on the suspension of Services or access or use as aforesaid and any resultant claims from any affected Customer.
6.10. The Partner shall provide Technology Warehouse with such written reports and information as Technology Warehouse specifies from time to time. Technology Warehouse shall have the right, itself or through an appointed third party, to view the Partners books, records, information and documents reflecting any transactions with Technology Warehouse and the resale of Technology Warehouse products and services and services to verify compliance with this Agreement. Where in the reasonable opinion of Technology Warehouse or the entity undertaking the audit, the Partner is in material or persistent breach of any obligations to Technology Warehouse, the Partner shall reimburse Technology Warehouse the reasonable costs of the audit.
6.11. The Partner shall provide Technology Warehouse with any information or documentation reasonably requested by Technology Warehouse to verify compliance with this Agreement.
6.12. Where any price or product or product description is subject to a limit on capacity or usage (including any limit on bandwidth, storage capacity, backup capacity, services, volumes, time or otherwise), then in such event Technology Warehouse shall be entitled, but not obliged, in its sole discretion to allow additional use over such limit (“Overage”) in which event any Overage that may be allowed shall be charged at the published rates of Technology Warehouse or where there are no published rates, at the usual, but market related, price charged by Technology Warehouse.
6.13. Prices and fees payable by the Partner are those provided in terms of clause 6.1 hereof and such prices and fees are net amounts. The Partner shall be responsible for payment of all taxes, duties and other governmental assessments (other than taxes based upon Technology Warehouse’s net income), including, without limitation withholding taxes, sales or any use tax, VAT or similar taxes. Technology Warehouse will however not invoice the Partner for taxes to the extent that the Partner has provided an appropriate exemption certificate that exempts the Partner from paying and/or Technology Warehouse from collecting such tax.
6.14. Technology Warehouse shall be entitled to deduct any prescribed taxes or amounts from any amount due to the Partner. If the Partner is required to pay or to deduct any withholding taxes or other amounts on any payment to Technology Warehouse, then the payment to Technology Warehouse shall be increased such that the net payment to Technology Warehouse, after deduction of any withholding tax or other amounts, would be the same as if no withholding tax or deduction were applicable. The Parties shall provide each other with tax receipts evidencing any payment of withholding taxes or deductions.
6.15. An early termination fee may be payable in terms of this Agreement if Technology Warehouse consent to any such early termination. Such fee shall include any amount reasonably required to compensate Technology Warehouse for any loss of profit and expenses that such termination may cause.
7. Price Increases
7.1. Technology Warehouse reserves the right to change its prices for the Technology Warehouse products and services from time to time. Pricing of all Technology Warehouse products and services and services is available on the Technology Warehouse website, and on request.
7.2. For Services provided to the Partner on a month-to-month basis, Technology Warehouse may increase prices at any time on 30 (thirty) days’ notice. Where Services are provided to the Partner in terms of an Order with a specified term longer than one month, then Technology Warehouse may increase fees effective as of the first day after the term agreed in the Order.
8. Provision And Suspension Of Technology Warehouse Products and Services
8.1. The acceptance of any Order and the provision of any Technology Warehouse products and services to the Partner is subject to Technology Warehouse accepting the Partner’s Order, payment of all amounts due to Technology Warehouse being made timeously, acceptance by the Partner of all terms and conditions on which the Technology Warehouse products and services and services are to be provided and the Partner not being in breach of this Agreement or any other terms and conditions applicable hereto.
8.2. Technology Warehouse may allow the Partner to access the Services or purchase Technology Warehouse products and services and services for which an Order has been placed through the Technology Warehouse control panel or portal, or via specific methods indicated to the Partner by Technology Warehouse. Technology Warehouse may modify or discontinue its control panel, or other access methods.
8.3. All Technology Warehouse products and services and services are provided and used at the Partner’s sole risk. The Partner shall be solely responsible for determining the suitability and characteristics of the Technology Warehouse products and services prior to purchase or provisioning.
9. The Partner’s Obligations
9.1. The Partner agrees to comply with all obligations in this Agreement including the obligation to pay timeously, without deduction or set-off and in full, all amounts, fees and charges payable to Technology Warehouse in respect of the supply of the Technology Warehouse products and services and to keep billing, contact and other account information up to date.
9.2. The Partner shall comply with any reasonable requests, procedures, instructions or directions imposed or given by Technology Warehouse from time to time.
9.3. The Partner shall, in respect of any Services provided by Technology Warehouse in terms of this Agreement:
9.3.1. use reasonable security precautions including encrypting any Confidential Information or personal information transmitted to and from, and while stored on, any Services (including the underlying servers and devices);
9.3.2. co-operate with Technology Warehouse’s reasonable investigations of outages and security problems;
9.3.3. arrange access to any premises, networks or infrastructure and make any changes or effect any settings as Technology Warehouse may reasonably request or which is required by any software or Technology Warehouse products and services and services; and
9.3.4. immediately notify Technology Warehouse of any unauthorised use of any account or any other breach of security.
10. Software And Services
10.1. The Partner shall use the software in compliance with this Agreement, the AUP, and any license terms applicable to the Software. 10.2. The Partner shall not resell or allow the use of any software or Services contrary to the vendors’ license terms or for any purpose contrary to the license or intended purpose of the software or for any unlawful purpose.
10.3. Where in terms of any license or distribution agreement between Technology Warehouse and the vendor of any software, Technology Warehouse has any obligation to the vendor of the software or the vendor has any right against Technology Warehouse or in respect of the software, the Partner shall have the equivalent obligation to Technology Warehouse and Technology Warehouse shall have an equivalent right against the Partner.
10.4. The Partner shall comply with all restrictions and terms applicable to the use of any software delivery platform, including the Odin software platform.
10.5. The Partner shall be responsible for ascertaining the suitability of any software which is resold and the compatibility with the customer’s infrastructure and environment.
10.6. The Partner shall not act, or fail to act, in any manner that causes Technology Warehouse to be in breach of any obligation to the vendor of any software.
11. Microsoft Software
11.1. In addition to the terms of this Agreement, the Partner’s sale or use of any Microsoft® software (whether supplied by Technology Warehouse or otherwise) is at all times further subject to and governed by Microsoft’s license terms.
11.2. If The Partner wishes to exercise License Mobility through Software Assurance rights, as defined by Microsoft, the Partner shall execute the Mobility Verification Form located at http://www.microsoft.com/ licensing/software-assurance/license-mobility.aspx or its successor site, and submit it to Microsoft for verification within ten (10) days of the Partners deployment of such Microsoft software. Licenses under the License Mobility through Software Assurance program must remain on Technology Warehouse’s shared servers within a single data centre for no less than ninety (90) days. The Partner may not reassign a particular license within ninety (90) days of the last assignment.
11.3. The Partner shall cooperate with Technology Warehouse if Microsoft requests Technology Warehouse’s participation in an audit of any Services involving software. The Partner agrees that Technology Warehouse shall be entitled to provide Microsoft with (a) the number of Windows Virtual Machine instances provided to the Partner by Technology Warehouse (b) a list of the Microsoft software products which run in such Windows Virtual Machine instances and (c) all copies of the Partners validated Mobility Verification Forms and (d) any other information and documentation that Technology Warehouse is contractually bound to provide to Microsoft. If Microsoft determines that the Partner is non-compliant with the program requirements for License Mobility through Software Assurance and the Partner fails to cure the non-compliance within such time period specified by Microsoft, then Technology Warehouse may terminate this Agreement, the provision of any or all Services and Technology Warehouse products and services and services to the Partner, or both.
11.4. If the Partner makes use of Microsoft software on the Services that is not relicensed to the Partner by Technology Warehouse under the Microsoft Service Provider License Agreement (“SPLA”), then the Partner warrants that it has a written license agreement that permits the Partner to use the Microsoft software in conjunction with the Services. The Partner agrees that it will provide Technology Warehouse with evidence of such licensing as Technology Warehouse may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license. If the Partner fails to provide the required evidence of licensing, Technology Warehouse may, at its option, either (i) suspend the Services that were to include such software until the evidence is provided, (ii) provide the Services in reliance on Technology Warehouse’s licensing agreement with the vendor, and charge the Partner its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate this Agreement.
11.5. The provisions of clause 12 shall apply, with suitable changes read in, in respect of any other software vendor as well.
12. Specific Technology Warehouse Products and Services Conditions
12.1. Technology Warehouse reserves the right to impose, and change, specific (additional) terms and conditions on the use of any delivery platform, the supply of any Technology Warehouse products and services, or the resale thereof or any other matter relating to the execution of this agreement. Such terms shall be imposed by Technology Warehouse publishing or providing an Addendum to this Agreement to the Partner. Such Addendum shall apply to the subject thereof whether signed by the Partner or not. Technology Warehouse reserves the right to restrict access to or to refuse to sell any Technology Warehouse Product to the Partner. 12.2. Any further addenda, to those noted herein, that are added shall be deemed to be part of and incorporated into this Agreement. ODIN AUTOMATION PLATFORM:
12.3. Technology Warehouse may provide the Partner with the right to access, self-provision or resell certain Technology Warehouse products and services and services via a platform or portal (Odin Software Platform) on physical or Virtual Machines owned or managed by Technology Warehouse and/or its Affiliates, in terms of a license agreement with Odin.
12.4. The Partner agrees and acknowledges that the Odin Software Platform and any use thereof is governed by and subject to Odin’s license terms and conditions.
12.5. The Partner shall only be entitled to use the Odin Software Platform for the purchase and resale of Technology Warehouse products and services and services where the Partner has signed the Odin Addendum annexed hereto marked Annexure “A” and has obtained all consents required by Odin to such use and has also bound itself to all Odin’s terms and conditions relating to such use. The Odin Addendum once signed or otherwise agreed to by the Partner shall be deemed to be part of this Agreement as if specifically incorporated herein. The Partner agrees that it shall be bound by any changes to Odin’s terms and conditions as may be imposed by Odin, from time to time. Notwithstanding the foregoing the terms of the Odin Addendum shall apply to any use of the Odin Software Platform whether the Odin Addendum is signed or not.
12.6. Technology Warehouse shall be entitled to amend the Odin Addendum on written notice to the Partner.
12.8. Technology Warehouse reserves the right to limit or discontinue the use of Odin Software Platform at any time.
12.9. The Partner agrees that it shall not in any way interfere with the Odin Software Platform. 12.9. The Partner agrees that it shall not in any way interfere with the Odin Software Platform.
12.10. The Partner agrees to pay any fees and charges as published from time to time by Technology Warehouse or set by Odin, to access to the Odin Software Platform.
12.12. The Partner is solely liable for the migration from Microsoft Online Service Agreement to Microsoft CSP. Technology Warehouse will not accept any responsibility for the migration or cancellation of any existing subscriptions or services. Microsoft Online Service Agreement to Microsoft CSP. Technology Warehouse will not accept any responsibility for the migration or cancellation of any existing subscriptions or services.
13. Management Software
13.1. The Partner agrees that it will not interfere with any management software that Technology Warehouse installs on or bundles with the Services. Technology Warehouse will use the management software to track system information so that it can more efficiently manage various service issues. The Partner’s Services will become “unsupported” as described in Clause 20 if the Partner disables or interferes with Technology Warehouse services management software.
14. High-Risk Use
14.1. The Partner may not use the Technology Warehouse products and services in any situation where failure or fault of the Product or Services could lead to death or serious bodily injury of any person, or to physical or environmental damage or any irrecoverable or catastrophic loss, including material financial loss, or physical loss. For example, the Partner may not use, or permit any other person to use, the Services forming part of the Technology Warehouse products and services in connection with aircraft or other modes of human mass transportation or nuclear or chemical facilities.
14.2. The Partner shall be responsible for ensuring that the use of the Technology Warehouse products and services are lawful and appropriate.
15. Customer Data Security
15.1. In addition to the foregoing obligations, the Partner acknowledges that it is solely responsible for taking steps to maintain appropriate security, protection and regular independent backups of all customer data. Technology Warehouse’s security obligations with respect to customer data is limited to those obligations described herein.
15.2. Technology Warehouse makes no other representation regarding the security of customer data. The Partner is solely responsible for determining the suitability of the Services, fitness for purpose and obtaining any consent necessary in light of the type of customer data used with the Services.
15.3. The Partner acknowledges that data is transmitted and stored electronically and that there is always a risk of interception or corruption. Data may be stored or transmitted outside of Namibia.
15.4. The Partner shall be responsible for ensuring that it maintains an independent, up to date, off-site verified backup of all Customer Data and that it is processed lawfully.
15.5. The Partner shall monitor and test the completeness and integrity of Customer Data on a continuous basis to ensure that any loss or corruption is identified immediately and rectified.
15.6. The Partner hereby indemnifies and holds harmless Technology Warehouse against any claim, howsoever caused or arising, by any End User: (i) arising out of or caused by any act or omission of the Partner or any breach of this Agreement by the Partner; or (ii) for payment of any amount that exceeds the sum of N$20 000. The Partner shall be responsible for the acts and omissions of its employees and agents whose acts and omissions shall, for all purposes, be deemed to be those of the Partner.
16. Data Access
16.1. The Partner will have access to data, including Customer Data stored or available on any Technology Warehouse products and services and services, for Thirty Calendar Days (30) following termination of this Agreement. This requires that prior to this time period expiring the Partner must have rectified any breach and duplicated all Customer Data stored on or using the Services. On the expiry of this thirty (30) day period, Technology Warehouse will be entitled, without notice, to erase all Customer Data and copies thereof and the Partner will have no claim whatsoever arising therefrom. The Partner accepts and agrees that it is the Partner’s sole responsibility to ensure that the Partner has removed and copied all Customer Data prior to the expiry of this Thirty (30) day period and that the End User is aware of this requirement. Technology Warehouse may notwithstanding the aforegoing require as a condition of access that the Partner first settles all outstanding amounts to Technology Warehouse and its Affiliates within the 30 day period. Technology Warehouse and its Affiliates within the 30 day period.
16.2. The Partner and any entity having purchased any Technology Warehouse Product, or Services, will not have access to data stored on the Services during any suspension that may arise due to a breach of this Agreement or after termination (save as provided in clause 17.1). The Partner shall ensure that the End User is aware of this restriction and is not prejudiced as a result.
16.3. Technology Warehouse is not responsible for unauthorised access to or manipulation or compromise of any Customer Data or the unauthorised use of the Services howsoever arising unless the unauthorised access or use results from Technology Warehouse’s failure to meet its security obligations as expressly stated in the Agreement.
16.4. The Partner is responsible for the use of the Services by any of its employees, any person to whom the Partner has given access to the Services, and any person who gains access to Customer Data or the Services as a result of the Partner’s failure to use reasonable security precautions, even if the Partner did not authorise such use. Any login to any portal, software platform or Services using the Partners login details and passwords and any activity pursuant thereto shall be deemed and agreed to be a login and activity of the Partner.
16.5. Technology Warehouse agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of the Customer and will remain in the exclusive care, custody, and control of Customer and/or the Partner.
17. Back-Up Services
17.1. The Partner will be charged for any use of backup services.
17.2. Technology Warehouse backup Services is used and provided to End Users by the Partner at the Partner’s sole risk.
17.3. Technology Warehouse will not be responsible for performing and testing restores, monitoring the frequency and integrity of backups, the completeness of the backups, or monitoring the integrity of any Customer Data.
17.4. Technology Warehouse will have no liability whatsoever for the loss or corruption of Customer Data or programs howsoever caused or arising or in the event that the Customer Data or programs are unable, for any reason, to be restored or used, whether in part or at all.
17.5. The Partner agrees that in all circumstances and at all times, it will maintain at least one additional current, a verified copy of all programs and Customer Data stored on the Cloud platform or using the Services, somewhere other than on the Cloud system.
18. IP Addresses
18.1. Upon expiration or termination of the Agreement, the Partner shall discontinue use of the Services and relinquish use of any IP addresses and server names assigned to the Partner by Technology Warehouse in connection with Services, including pointing the DNS for the Partner’s domain name(s) away from Technology Warehouse Services. The Partner agrees that Technology Warehouse may, as it determines necessary, make modifications to DNS records and zones on Technology Warehouse managed or operated DNS servers and services.
19. Unsupported Solutions And Services
19.1. If the Partner requests Technology Warehouse to implement a configuration element (hardware or software) or other services in a manner that is not customary at Technology Warehouse, or that Technology Warehouse regards as having “end of life” or “end of support” status, Technology Warehouse may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the Order (referred to in this Section as an “Unsupported Service”). No Support will be given or is available for Unsupported Services.
19.2. Technology Warehouse makes no representation or warranty whatsoever regarding any Unsupported Service, and the Partner agrees that Technology Warehouse will not be liable to the Partner for any loss or damage arising from the provision of the Unsupported Service which is made available and used at the Partner’s sole risk.
19.3. No Service Level Agreement will apply to the Unsupported Service or any other aspect of the Services that is adversely affected by the Unsupported Service. The Partner acknowledges that Unsupported Services may not interoperate with Technology Warehouse’s other Services or products.
20. Cloud Server Images
20.1. If The Partner provisions a Technology Warehouse Server or other Service using a non-supported or non-Technology Warehouse image or software, then Technology Warehouse shall have no obligation to provide Support for that Service, and any Support provided shall be on an Ad Hoc basis where Technology Warehouse agrees to do so.
20.2. The Partner is solely responsible for the use and maintenance and all risks arising from the operating system and any applications or computer programs stored or loaded or used on any platform (including any Windows Virtual Machine) provided by Technology Warehouse or available through the Technology Warehouse products and services and services, including confirming compatibility with any such platform or Technology Warehouse products and services and services.
21. Managed Services
21.1. The Partner may purchase from Technology Warehouse a Managed Service for its account in which event additional Support fees shall be payable to Technology Warehouse. Technology Warehouse shall be given full root/administrator access to the applicable networks and computers and Partner Services to provide Managed Services. The Partner shall provide Technology Warehouse with regular written updates on password changes and other related changes to ensure that Technology Warehouse’s ability to manage or monitor the Services is not affected in any way. Technology Warehouse reserves the right to modify the specification or to discontinue such Services on 30 days written notice to the Partner.
22. Domain Registration Services
22.1. The Partner may request Technology Warehouse to register, renew, or transfer a domain name through Technology Warehouse against payment of the agreed fees and charges. Technology Warehouse will submit any such request to its domain name services provider (the “Registrar”) on the Partner’s behalf. Technology Warehouse’s sole responsibility is to submit the request to the Registrar. Technology Warehouse shall not be responsible for any errors, omissions, or failures of the Registrar. The Partner’s use of domain name services is subject to the Registrar’s applicable legal terms and conditions. The Partner is responsible for closing any account with any prior the Partner of or registrar for the requested domain name and is further accountable for responding and dealing with any inquiries and conditions of the Registrar.
22.2. Technology Warehouse reserves the right to modify the specification or to discontinue such Services on 30 days written notice to the Partner.
23. Mail Services
23.1. Privacy. The Partner agrees that Technology Warehouse may use the message routing data for general business and support purposes. The Partner agrees that it will not send emails or communications or use the Services unlawfully, for unsolicited mail or in any manner that does not comply with any laws including laws relating to POPI or Technology Warehouses’ AUP.
23.2. Management of the Service. Technology Warehouse will provision the Partner’s initial mail environment, but unless specified in any Order, the Partner shall be responsible for managing its mail service. Technology Warehouse shall provide basic set up and configuration only. The Partner shall provide all configurations, authentications, passwords and the like required by Technology Warehouse.
23.3. Filtering. Technology Warehouse will provide email filtering services designed to minimise spam, phishing scams, and email infected with viruses. Technology Warehouse requires that the Partner takes all necessary steps to employ effective additional security, such as a PC virus scanner and a personal firewall, on computers that connect to the Internet and to keep these up to date. Technology Warehouse will use commercially reasonable efforts to deliver the Partner’s email messages as per the Service Level Agreements associated with the Partner’s Order. Third-party filtering services may from time to time, prevent successful delivery of the Partner’s messages. The Partner acknowledges that the technological limitations of the filtering service may result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses and other malware or hostile content such as ransomware. Technology Warehouse its employees, agents, affiliates, and third-party suppliers shall have no liability whatsoever for any damages or losses of whatsoever nature arising from the failure of Technology Warehouse’s filtering services to prevent unwanted email or malicious content or from the capture of legitimate email, or from a failure of the Partner’s email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider. The Partner hereby irrevocably indemnifies and holds Technology Warehouse its employees, agents, affiliates, and third-party suppliers harmless against any such claims. The Partner shall ensure that independent verified restorable back-ups of all Customer Data and information stored or processed using the Services is kept offsite, and in a manner that will not be affected by any malware, virus or ransomware.
23.4. Access To Email Services. The Partner may access its Mail Services over the web or via the control panel stipulated in the Partner’s order confirmation or the deployment guide, through any supported Technology Warehouse supported email client or by connecting directly to the IP address provided for the purposes of a Remote Desktop Session. 23.5. Mailbox Limitations. The Partner acknowledges that Mail that exceeds the storage limits as stipulated in the Partner Order may be permanently lost. The Partner may request a storage capacity upgrade of the Partner’s mailboxes via the Technology Warehouse sales function, and it is the Partner’s obligation to monitor and request the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 20 MB (including attachments) may also be lost if Mimecast or a similar service has not been deployed with the Partner’s email solution.
23.6. Bulk Emails. The Partner will not send bulk or commercial Emails being Emails that are sent to more than four-thousand (4,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes or in any manner that contravenes any law. Any use of the Services to distribute illegal, offensive, immoral or socially unacceptable or unsolicited communications is strictly prohibited.
24. Service Level Agreements
24.1. Technology Warehouse shall not be responsible for any inability of the Partner or any End User to access the Technology Warehouse products and services or delivery portal (including any Odin Software Platform) during maintenance periods or for any reason beyond the reasonable control of Technology Warehouse, including due to internet failures, power failures, damage to or unavailability of any fibre or other connectivity infrastructure, natural disaster, riot or any circumstances that would constitute a vis major event.
25. Subcontractors And Substitution
25.1. Technology Warehouse may use third party service providers to perform or supply all or any Technology Warehouse products and services, but Technology Warehouse remains responsible to the Partner under this Agreement for work performed by its third party service providers to the same extent as if Technology Warehouse rendered the supply of the Technology Warehouse products and services itself.
25.2. Technology Warehouse reserves the right at any time to substitute any Technology Warehouse products and services for a comparable service or product. The Partner shall have no claim arising therefrom.
26. Changes To The Acceptable Use Policy (“Aup”)
26.1. Technology Warehouse may change its Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of this Agreement will become effective to the Partner’s account upon the first to occur of: (i) renewal, (ii) execution of a new/additional Order to the Partner’s account that incorporates the revised AUP, or (iii) thirty (30) days following notice by Technology Warehouse to the Partner describing the change.
26.2. Where the change, objectively assessed, materially and adversely affects the Partner, the Partner may terminate the Agreement by giving Technology Warehouse written notice of termination on such grounds no later than thirty (30) days following the date the change became effective, and Technology Warehouse will not enforce the change with respect to that account for thirty (30) days following the date of the Partner’s notice. Where the Partner gives notice of termination of the Services because it is adversely affected by the changes to the AUP, Technology Warehouse may decide not to enforce that change with respect to the Partner’s account and keep the existing Agreement in place for the remainder of the term by notifying the Partner that the change to the AUP will not apply to the Partner and on giving such notice the Partner’s notice of termination shall not be effective.
27. Use Of Technology Warehouse Trademarks
27.1. The Partner acknowledges the following:
27.1.1. Technology Warehouse owns all right, title and interest in the Technology Warehouse names and logotypes including trade secrets, inventions, copyrights and other intellectual property, and shall be the sole beneficiary of all goodwill and benefits therein, including any intellectual property developed by Technology Warehouse during the performance of any Services or supply of any Technology Warehouse products and services and services, shall belong to Technology Warehouse.
27.1.2. Technology Warehouse is the owner and/or licensee of certain other trademarks and trade names used in connection with certain product lines and software and Services.
27.1.3. The Partner will acquire no interest in any such trademarks, logos or trade names or any goodwill therein by virtue of this Agreement, its activities under it, or any relationship with Technology Warehouse.
27.2. The Partner may use and display the Technology Warehouse name and logo provided that they are accompanied by the words “Authorised Partner of Technology Warehouse” in its promotional and marketing material for the duration of this Agreement. This right shall terminate automatically on cancellation or termination, for any reason, of this Agreement. Such rights of use shall confer no rights whatsoever to the names or logos of Technology Warehouse or its logos or to use the name “Technology Warehouse” in any combination or manner other than as aforesaid.
27.3. The Partner may use the Technology Warehouse trademarks and trade names to promote and solicit sales or licensing of Technology Warehouse products and services if done in strict accordance with Technology Warehouse guidelines and any restrictions Technology Warehouse imposes from time to time. These rights shall terminate automatically on cancellation or termination, for any reason, of this Agreement. The Partner will not adopt or use such trademarks or trade names, or any confusingly similar words or symbols, as part of its company name or allow such marks or names to be used by others either during the terms of this Agreement or at any time thereafter.
27.4. At the expiration or termination of this Agreement, the Partner shall immediately discontinue any use of “TW” and Technology Warehouse names, logos or trademarks or any other combination of words, designs, trademarks, logos or trade names that would indicate that it is or was a Partner of Technology Warehouse.
28. Termination, Cancellation And Consequences
28.1. Termination on notice Either Party may terminate this Agreement by written notice to the other party:
28.1.1. Without cause, in accordance with clause 3.1 of this Agreement; 28.1.2. If Technology Warehouse gives notice of the amendment in terms of clause 29.2 below and the Partner responds in writing prior to the expiry of the 30 (thirty) day period in clause 29.2 advising or indicating in any manner that it does not accept the change in part or in whole or unconditionally; or 28.1.3. As provided for elsewhere in this Agreement.
28.2. Technology Warehouse may, from time to time, give the Partner written notice of amendments to this Agreement or amendment to any document referred to herein or to any policy or procedure prescribed by Technology Warehouse. Any such amendment will automatically become a part of this Agreement thirty (30) calendar days from the date of the notice. The Partner shall be bound by such changes on expiry of the notice period unless the Partner has given notice that it does not accept the proposed change to this Agreement in terms of clause 28.1.2 above.
28.3. Cancellation for Breach
28.3.1. In the event of the Partner being in breach of this Agreement or any other document referred to in this Agreement and fails to rectify such breach within 7 (seven) calendar days of written notice calling on such party to rectify the breach within the said period, then Technology Warehouse shall be entitled, without prejudice to any other rights it may have in terms of this Agreement and in terms of any law to i) cancel this Agreement or ii) claim an order for specific performance and iii) in all instances recover from the Partner all Technology Warehouse products and services and services that have not been paid for, immediately stop access to any of the Technology Warehouse products and services and services including Services by the Partner and to recover all outstanding amounts and any damages (subject to limitations as provided in clause 30) suffered as a result of the breach including a claim for interest together with all legal costs incurred by Technology Warehouse in enforcing its rights in terms of this Agreement on the attorney/ own client scale.
28.4. Termination on insolvency
28.4.1. Either Party may terminate this Agreement immediately upon written notice to the other Party where such other Party has entered into any compromise for the benefit of creditors or has applied for or been granted relief under any applicable insolvency, business rescue, judicial management or similar laws, or in the event that a liquidator or trustee or receiver has been appointed for such other Party or has failed to satisfy any court order or writ of attachment.
28.5. Consequences of Termination
28.5.2. Upon expiration, cancellation or termination of this Agreement for any reason:
22.214.171.124. all interests in and rights to receive any accrued marketing funds (if any) and to receive any further rebates, commissions or other payments accruing after date of termination, or cancellation, will automatically lapse and be forfeited without any claim from the Partner;
126.96.36.199. all and any outstanding payments due to Technology Warehouse shall be accelerated and become immediately due, owing and payable. Any dispute arising from or in connection with any outstanding amounts shall be finally resolved in accordance with the provisions of clause 41 hereof;
188.8.131.52. any notice of termination by Technology Warehouse shall constitute the 30 days’ notice to the Partner to remove all Customer Data in terms of clause 17; and 184.108.40.206. Save for any rights or obligations that are specifically provided in this Agreement or have accrued prior to termination neither party shall have any further obligation to the other under this Agreement.
29. Limitation Of Liability
29.1. Under no circumstances, including any infringement claims, shall Technology Warehouse be liable to the Partner or to any other party, for any re-procurement costs, lost revenue or profits or for any other special, incidental or consequential damages howsoever arising or caused and regardless of the form or cause of action, even if Technology Warehouse has been informed of such potential loss or damage.
29.2. To the fullest extent possible Technology Warehouse disclaims and shall have no liability for any defective Technology Warehouse products and services and the Partner’s sole remedy in respect thereof shall be against the vendor or original equipment manufacturer as provided in the product warranty provided by the vendor or original equipment manufacturer.
29.3. To the fullest extent possible Technology Warehouse disclaims and shall have no liability for any defects or any claims arising out of any failure to meet any service level or inability to provide any services, forming part of the Technology Warehouse products and services for any reason whatsoever, the Parties agree that the only remedy to the Partner shall be the payment of any amount agreed in any separate service level agreement, repayment of any amount already paid for the specific Service or a remission of payment of the Services for any period that they were no available.
29.4. Where any law imposes liability and/or does not allow a disclaiming of liability and does not allow for Technology Warehouse in such circumstances only to repair or replace the Technology Warehouse Product, the maximum liability of Technology Warehouse to The Partner or to any third party (where this claim can be limited in law) arising out of any defective Technology Warehouse Product or breach of any obligation and notwithstanding any negligence (including gross negligence) of Technology Warehouse or their agents or employees, shall be the greater of: the amount paid to Technology Warehouse by the Partner for the defective product or product in respect of which the claim arose, or the sum or N$20 000 (twenty thousand Namibian dollars).
30. Warranty And Disclaimer
30.1. Technology Warehouse products and services are made available and may be resold only with the warranties and guarantees provided by the vendor or original equipment manufacturer and as accompany the product as supplied by Technology Warehouse. Technology Warehouse offers and provides no additional or further warranty. The Partner shall make the aforegoing clear in any use or resale of any Technology Warehouse products and services.
30.2. Except as otherwise expressly warranted in this agreement or in terms of any warranty expressly given by the vendor or original equipment manufacturer, the Technology Warehouse products and services and any other materials, software, data and/or services provided by Technology Warehouse are provided “as is” and Technology Warehouse and its affiliates, subsidiaries, officers, directors, employees, agents, Partners and licensors, expressly disclaim all other warranties (including guarantees and representations) of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of non infringement, operability, condition, title, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose or as to security, or the absence of any defects therein. Technology Warehouse do not warrant that the Technology Warehouse products and services or any other materials, software, data and/ or services provided under this agreement shall meet the Partner’s requirements or that the operation thereof shall be uninterrupted or error-free, or that all errors shall be corrected or that they will be free from loss, corruption, attack, viruses, interference, hacking or other security intrusion and Technology Warehouse disclaims (subject to this agreement) any liability in respect thereof.
30.3. The Partner acknowledges that in respect of the provided services, there are risks inherent in Internet connectivity that could result in the loss of privacy, Customer Data, Confidential Information, and property. Technology Warehouse has no obligation to provide security other than as expressly stated in this Agreement.
30.4. The Partner is solely responsible for the suitability of any Technology Warehouse products and services and any Service chosen, including the suitability as it relates to Customer Data. The Services, including any Services without charge or that are unsupported, are provided by Technology Warehouse AS IS, subject to any applicable Service Level Agreement and policy that Technology Warehouse publish from time to time (including any Authorized Use Policy). Any voluntary Services performed by Technology Warehouse at your request and without any additional charge, including any Services that are deemed unsupported, are provided AS IS.
31.1. The Partner hereby irrevocably indemnifies and holds Technology Warehouse, its affiliates, employees, agents and suppliers (the “Technology Warehouse Indemnitees”) harmless against any claim whatsoever howsoever arising including inter alia any and all losses, damages, disbursements, costs and expenses including attorney’s fees resulting from or arising out of the Partner’s actual or alleged gross negligence, willful misconduct, breach of law, any act or omission (whether in contract or in delict), failure to meet the security obligations or any breach of this Agreement or any other obligation to Technology Warehouse or any modified warranty, unauthorised representation or other commitment made to any End User or third party and which was not specifically first authorised in writing by Technology Warehouse.
31.2. In the event of any such claim, loss or harm the Partner will pay and reimburse Technology Warehouse for the cost of defending the claim (including reasonable attorney fees) and any loss, damages award, fine, or other amounts that are imposed on or suffered by the Technology Warehouse indemnitees as a result of any such claim. The Partner’s obligations in terms hereof include claims arising out of the acts or omissions of the Partner’s employees, agents of affiliates and any other person to whom the Partner has given access to the Technology Warehouse products and services, and any person who gains access to the Technology Warehouse products and services and services as a result of the Partner’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by the Partner. If the Partner resells the Technology Warehouse products and services, the grounds for indemnification stated above also include any claim brought by the Partner’s Customers or End Users arising out of the Partner’s resale of the Technology Warehouse products and services.
31.3. Technology Warehouse will choose the legal team to defend any claim. The Partner shall comply with all Technology Warehouse’s reasonable requests for assistance and cooperation in defence of the claim.
31.4. Technology Warehouse may settle any claim without the consent of the Partner. The Partner shall pay to Technology Warehouse all expenses, losses and damages due under this clause as they are incurred or suffered.
32. Proprietary Information
32.1. Technology Warehouse and the Partner shall each exercise due diligence to maintain in confidence and not publish or disclose to any third party any proprietary information or any Confidential Information not generally known to others or of commercial value to the disclosing party which is furnished by the other to it whether on a confidential basis and whether identified as such when furnished or not. Except for giving effect to this Agreement, neither party shall use any such information without the prior written consent of the party that furnished it. As used in this clause, the phrase “due diligence” means the same precaution and standard of care which that party uses to safeguard its own proprietary data and Confidential Information, but in no event less than reasonable care. The provisions of this clause shall survive for five (5) years beyond the expiration, non-renewal or termination of this Agreement.
32.2. The Partner agrees that it is alone responsible for the lawful processing of personal information and that Technology Warehouses provision of Services or Products shall not be interpreted as giving rise to any responsibility of Technology Warehouse regarding personal data. 32.3. Each party agrees not to disclose the other’s Confidential Information to any third person except as follows:
32.4.1. To each party’s respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
32.4.2. In response to a summons or other compulsory legal process, provided that each Party agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
33.1. The Partner shall ensure that neither the Partner or its Affiliates shall, whether directly or indirectly, alone or jointly with or on behalf of any other person, or as principal, Partner, agent, shareholder, director, employee, consultant or otherwise whosoever at any time, without the prior written consent of Technology Warehouse, during the Term of the Partner Agreement or during the twelve (12) months] following termination of the Partner Agreement for any reason:
33.1.1. Solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of its Affiliates, any of Technology Warehouse’s staff, agents, Personnel or employees. For purposes of this section, “Personnel” includes any individual that a party employs or has employed as a Partner, employee, consultant or independent contractor and with which the other party comes into direct contact as a result of this Agreement or any Addendum thereto; or
33.1.2. Procure or assist any third party so as to offer, employ, engage or solicit, any staff, agent, employee, Personnel or subcontractor of Technology Warehouse; or
33.1.3. Contract with, directly or indirectly, on its own behalf or on behalf of its Affiliates with any agent or third party or subcontractor utilised by Technology Warehouse to supply any Technology Warehouse products and services or entice them to discontinue any supply to Technology Warehouse.
33.2. The parties acknowledge that the above provisions of this clause are no more extensive is reasonable to protect both parties.
34. Force Majeure
34.1 Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure.
34.2. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, power failures, internet outages, power failures, viruses or other malware, natural disasters, riots, wars, hurricane, sabotage terrorism, vandalism, accident, restraint of government, governmental acts, injunctions, labor strikes, other than those of Seller or its suppliers, that prevent Seller from furnishing or supplying the Technology Warehouse products and services, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party’s reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party’s failure to perform its obligations under this Agreement provided always that written notice shall forthwith be given of any such inability to perform by the affected Party which notice shall set out full detail of the reason for the inability to perform, the extent thereof and the anticipated duration thereof and provided further that a failure to effect payment of any amounts due in terms of this Agreement shall not constitute a force majeure.
34.3. Should such force majeure continue for a period of more than 90 (ninety) days, then either Party shall be entitled forthwith to cancel the operation of this Agreement.
35. Export Controls
35.1. Regardless of any disclosure made by the Partner to Technology Warehouse or any distributor as to the ultimate destination of Technology Warehouse products and services, the Partner shall not export nor allow the export, either directly or indirectly, of any documentation, Technology Warehouse products and services and services, or system incorporating such Technology Warehouse products and services and services, unless first expressly agreed to, in writing, by Technology Warehouse.
36. Government Contract Conditions
36.1. In the event that the Partner elects to sell Technology Warehouse products or services to the Namibian Government or any Organ of State, the Partner does so solely at its own option and risk, and agrees not to attempt or purport to attempt to obligate Technology Warehouse as a subcontractor or otherwise to the Namibian Government or Organ of State. The Partner remains solely and exclusively responsible for ensuring that there has been full compliance with all statutes and regulations governing budgeting and procurement by the Namibian Government or any Organ of State. The Partner shall undertake due diligence of the relevant procurement and budgeting process and ensure that the procurement and budgeting process was appropriate and lawful and that funds are available on the relevant budget prior to placing an order for Technology Warehouse products and services. The Partner shall be liable to Technology Warehouse for payment of all amounts and fulfillment of all obligations notwithstanding any failure of the Namibian Government or any Organ of State to make payment, timeously or at all, and notwithstanding any cancellation or setting aside of any contract or order placed on the Partner by the Namibian Government or any Organ of State for any reason including any statutory noncompliance by the aforegoing. Technology Warehouse makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any statutory or regulatory provisions.
36.2. The Partner shall be bound by the terms and conditions of Technology Warehouse’s Governance and Warranty Undertaking Addendum in respect of Government Contracts.
37. Electronic VAT Invoices
37.1. The Partner hereby consents and agrees that Technology Warehouse may issue tax invoices, credit notes and debit notes (collectively, “Invoices”) to the Partner in electronic format. This includes email.
37.2. The Parties agree that –
37.2.1. Electronic Tax Invoices shall comply with Section 20(4) and Section 21(4)(a) and (b) of the VAT Act;
37.2.2. Any subcontractor of the Parties shall be obliged to retain the electronic invoices for a period of at least 7 (seven) years after the last electronic document is issued;
37.2.3. Technology Warehouse may issue and transmit Invoices to the Partner in 128bit encrypted file PDF or any other format or with an electronic signature or in any other compliant manner;
37.2.4. The Partner shall keep the Invoices in original encrypted form for a period of at least 7 (seven) years from the date of the supply to which the invoice relates;
37.2.5. The electronic transmitted invoice shall constitute the original Invoice;
37.2.6. No other Invoices will be issued in respect of the specific supply, unless as a copy of the original Invoice;
37.2.7. All hard (paper or physical) copies extracted from any computer system shall bear the words “computer-generated copy tax invoice, “computer-generated copy credit note” or “computer-generated copy debit note” thereon. All further copies shall also bear such words;
37.2.8. SARS may, from time to time, impose further guidelines, rulings and directives relating to electronic invoices. The Partner agrees to be bound thereby and to Technology Warehouse introducing any procedure or changes required to comply therewith or as required to comply with any law or changes to the law.
38.1. The parties choose domicilium citandi et executandi (“domicilium”) for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum, the serving of any process or like document, the address on the front page of this Agreement.
38.2. Any party shall be entitled from time to time, by giving written notice to the others, to vary its physical domicilium to any other physical address.
38.3. Any notice given or payment made by any party to the other (“addressee”) which is delivered by hand between the hours of 09:00 and 17:00 on any business day to the addressee’s physical domicilium, for the time being, shall be deemed to have been received by the addressee at the time of delivery.
38.4. This clause shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause.
38.5. Any notice in terms of or in connection with this agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee.
39. Governing Law And Jurisdiction
39.1. This agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of the Republic of Namibia.
39.2. Technology Warehouse and the Partner will attempt to settle any claim or controversy arising out of it through consultation and negotiation in good faith and a spirit of mutual co-operation. Any dispute which cannot be resolved through negotiation within 7 calendar days of either party calling on the other in writing to attempt to resolve such dispute, shall be submitted to arbitration in terms of clause 40, provided that nothing contained herein shall prevent the right of any party from obtaining urgent or interim relief from any court of appropriate jurisdiction.
40.1. Any dispute between the parties shall unless otherwise agreed be referred to arbitration in terms of these Terms and Conditions
40.2. Any party may demand that a dispute, be determined in terms of this clause by written notice given to the other party.
40.3. This Agreement shall constitute agreement to the submission and determination of such dispute by arbitration.
41.1. This Agreement and its schedules constitutes the whole of the Agreement between the Parties relating to the matters dealt with herein, and this Agreement supersedes all previous oral or written communications between the parties regarding the subject whether oral or written, and neither it nor any term (including this clause) may be modified, varied, amended, deleted, cancelled or waived except in writing and signed by an officer or other authorised representative of each party. No amendment to this Agreement shall be valid unless such amendment is made in writing and is signed by the authorised representatives of the Parties.
41.2. Save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
41.3. No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be 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.
41.4. No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given. Any delay by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
41.5. 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. The expiration or termination of this Agreement shall not affect the provisions or clauses which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
41.6. All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof. 41.7. The Partner shall not cede or assign its rights or delegate its obligations under this Agreement without Technology Warehouse’s prior written consent; any such consent shall not be unreasonably withheld. This Agreement shall be binding upon and endure for the benefit of Technology Warehouse and the Partner and their successors in title and assigns. Technology Warehouse may cede and assign its rights and obligations in terms of this Agreement to a third party without the consent of the Partner.
41.8. The Parties acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, Partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement. Save as expressly stated herein to the contrary; neither Party will have the authority to speak for, represent or obligate the other Party in any way without the prior written approval of the other Party, unless this Agreement provides otherwise.
41.9. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
41.10. The reference in this Agreement to writing signed by a Party or signed by the Parties shall, notwithstanding anything to the contrary in this Agreement, be read and construed.
ANNEXURE “A” _ODIN ADDENDUM > TERMS AND CONDITIONS FOR TECHNOLOGY WAREHOUSE PRODUCTS AND SERVICES PROVIDED VIA THE ODIN SOFTWARE PLATFORM >
1. Technology Warehouse may allow the Partner to purchase, Order or self-provision certain Technology Warehouse products and services via the Odin Software Platform (“Odin Software Platform”). Where Technology Warehouse does so, all use of the Odin Software Platform shall be subject to the following terms and conditions in addition to those terms in the Partner Partner Agreement. The terms set out in this Addendum shall be deemed to be incorporated into the Partner Agreement.
Capitalised terms bear the meaning assigned below and defined in the Partner Partner Agreement.
2.1. “Addendum” or “Odin Addendum” means this Addendum together with all annexures and changes hereto;
2.2. “Master License Agreement” means the Odin License Agreement and any other agreements which grant or regulate the right to use the Odin Software Platform and related Odin services to Technology Warehouse or an Affiliate of Technology Warehouse, as amended from time to time;
2.3. “Odin” means the licensor of the Odin Software Platform and any successors in title;
2.4. “Odin Software Platform” means the electronic Odin billing and provisioning system licensed to Technology Warehouse in terms of the Master License Agreement allowing Technology Warehouse, inter alia, to authorise Partners to automate the end to end provisioning of Technology Warehouse products and services, along with other permissible products not supplied by Technology Warehouse, to Customers on subscription and usagebased models. The Odin/CloudBlue Software Platform includes any Tenant Platform which is made available to the Partner and any customisation of the aforegoing;
2.5. “Partner Agreement” means the Partner Partner Agreement concluded in writing between Technology Warehouse and the Partner for the purchase and sale of Technology Warehouse products and services;
2.6. “Tenant Platform” means any access portal using the Odin Software Platform which is dedicated to the Partner and which allows the Partner and the Partners Customers to purchase Technology Warehouse products and services, along with other permissible products not supplied by Technology Warehouse, on subscription and usage-based models;
2.7. “Term” means the period for which the Partner Agreement or this Addendum remains in force and effect between the Parties;
4. Master License Agreement
4.1. The Partner acknowledges and agrees that the ability of Technology Warehouse to provide for the sale of Technology Warehouse products and services via the Odin Software Platform and to allow the use of the Odin Software Platform arises from the Master License Agreement.
4.2. Any rights granted to the Partner are at all times subject to the terms and conditions of the Master License Agreement.
4.3. The Partner acknowledges and agrees that any revocation, termination, limitation, withdrawal, amendment or variation of any terms of this Master License Agreement or amendment thereof shall likewise automatically revoke, terminate, limit, withdraw, amend or vary the rights of the Partner in terms hereof. The Partner shall have no claim arising therefrom.
4.4. The Parties agree that the Master License Agreement contains limitations and restrictions on rights granted in terms thereof and the Partner hereby agrees to strictly comply with all rights and obligations imposed in terms of the Master License Agreement as if they related to the Partner.
4.5. Technology Warehouse gives no warranty regarding the availability of the Odin Software Platform or that it will be available for any period or that it will not be removed or altered by Odin.
4.6. The Partner agrees that Technology Warehouse may in its discretion make available to the Partner such of the Technology Warehouse products and services via the Odin Software Platform as it determines and may discontinue such access at any time.
4.7. Technology Warehouse shall give the Partner timeous written notification of any changes, amendments or replacements of these terms and conditions which affects the supply of the Technology Warehouse products and services via the Odin Software Platform.
5. Appointment and Rights of the Partner
5.1. Technology Warehouse hereby grants the Partner the right to resell compatible Technology Warehouse products and services made available by Technology Warehouse, via the Odin Software Platform to End Users in the Territory, on physical or virtual machines owned or managed by Technology Warehouse and/or its Affiliates on the terms and conditions set out herein and against payment of the prevailing all agreed fees and charges as published or provided by Technology Warehouse from time to time. Technology Warehouse may authorise other products and services which are not supplied by Technology Warehouse and that Odin permits to be supplied using the Odin Software Platform, to be supplied using the Odin Software Platform at the prevailing published charges. Such consent may be withdrawn and shall be required to be in writing.
5.2. The provision of the Technology Warehouse products and services as described herein and the use of the Odin Software Platform, is not exclusive to the Partner and the Partner hereby acknowledges that Technology Warehouse provides Technology Warehouse products and services and the same rights, as given to the Partner hereunder, to third parties on such terms and for such remuneration as Technology Warehouse in its sole discretion deems fit and nothing contained herein shall prevent Technology Warehouse from distributing, selling or supplying Technology Warehouse products and services itself or from rendering services the same as or similar to those set out herein or allowing use of the Odin Software Platform, to or on behalf of any third party.
6. Duration and Terms
6.1. Unless terminated earlier as provided herein, this Addendum shall endure for so long as the Partner Agreement continues. All rights of the Partner in terms of this Addendum and to use the Odin Software Platform shall automatically terminate on termination or cancellation of the earlier of the Partner Agreement, this Addendum or the loss (for any reason) of the rights of Technology Warehouse to use the Odin Software Platform.
6.2. Either Party may give the other 30 calendar days notice of termination of this Addendum at any time.
7.1. Technology Warehouse shall as soon as commercially practicable after the commencement date deliver, make available or grant the Partner access to Technology Warehouse products and services compatible with the Odin Software Platform, via the Odin Software Platform against payment of the applicable fees and charges. The parties may enter into a separate agreement of works that requires Technology Warehouse to perform certain services for the installation of any software or configuration of the Partner’s computers, networks or other systems for the exercise of the aforesaid rights. The Partner shall be deemed to have accepted the software and configuration upon delivery.
7.2. Unless specifically agreed in writing between the Parties, Technology Warehouse shall have no obligation to provide Support Services.
7.3. In the event that the Partner requires Technology Warehouse to provide training for its employees, agents or representatives, and Technology Warehouse agrees to provide such training then the Parties shall enter into a separate training agreement governing such additional services and the fees associated therewith.
8.1. Technology Warehouse reserves the right to charge its usual fees for any customisation of the Partner’s Tenant Platform. The Partner shall acquire no rights whatsoever to any changes or modifications or customisation of the Partners Tenant Platform (or any portion of the Odin Software Platform) beyond the rights to use same as provided herein for the Term of this Addendum.
8.2. Technology Warehouse accepts no liability for products sold through the Platform that was not supplied by Technology Warehouse or for any incompatibility or other issues caused by such sale and use.
8.3. Technology Warehouse will not accept any liability for any customisation or alteration, of any nature, made by the Partner to the platform (the Odin Software Platform or the Tenant Platform) or which was not undertaken by Technology Warehouse. The Partner shall be responsible for ensuring that all systems that integrate with or use the Odin Software Platform or any Technology Warehouse products and services are compatible with and correctly configured as required to use the Odin Software Platform and any Technology Warehouse products and services, including any reporting or management software required to be installed by Technology Warehouse.
8.4. Any support related to the customisation of the platform falls outside of the scope of ordinary support and will be charged accordingly.
8.5. The Partner shall be solely responsible for ensuring that any software or product which is sold or supplied through the Odin Software Platform, is suitable, properly licensed and lawfully supplied and used. Technology Warehouse warrants that licenses supplied by Technology Warehouse are valid licenses allowing the use of the software in terms of the license supplied.
8.6. The Partner hereby indemnifies and holds Technology Warehouse harmless against any claim, loss, expense or damages made against or suffered by Technology Warehouse as a result of:
8.6.1. The Partners use of the Odin Software Platform (including the Tenant Platform) for the supply of any goods or software which was not supplied by Technology Warehouse or any use of the Odin Software Platform contrary to this Addendum or the Partner Agreement; or
8.6.2. Any breach of this Addendum or the Partner Agreement or any act or omission of the Partner or for which the Partner is vicariously liable.
9. Prohibited Uses
9.1. Without limiting the generality of the aforegoing, the Partner shall not:
9.1.1. Modify or create any derivative works of the Odin Software Platform or any component thereof;
10. Consent of Odin
10.1. The Partner shall obtain any consents required from Technology Warehouse or the relevant third party supplier in connection with the resale of the Technology Warehouse products and services or any other products as provided herein.
10.2. The Partner acknowledges and agrees that only distributors, retailers and Partners which are specifically authorised by Odin may use the Odin Software Platform and that only products approved by Odin may be sold and supplied through the Odin Software Platform. The written consent of Technology Warehouse, confirming Odin’s consent as aforesaid, shall be adequate proof of Odin’s consent.
10.3. The Parties acknowledge that Odin has the right to withdraw any consent at any time and to terminate is relationship with Technology Warehouse which shall likewise result in the immediate and automatic termination of this Addendum and the Partner’s rights to provide Technology Warehouse products and services via the Odin Software Platform and to use the platform. The Partner shall have no claim against Technology Warehouse arising from said termination howsoever arising.
11. Proprietary Notices
11.1. The Partner shall not duplicate proprietary notices and legends of Odin, their suppliers or licensors. The Partner shall not alter or obscure any such proprietary notice or legend.
12.1. The Partner understands and acknowledges that Odin and/or Technology Warehouse may monitor the operation and usage of the Odin Software Platform through a reporting function in the software.
12.2. The Partner agrees to facilitate such monitoring by ensuring that all firewall ports are open and to notify Odin and/or Technology Warehouse if there are any operational issues that could prevent remote monitoring. Odin and/or Technology Warehouse shall have the right to use any and all data and information related to the Odin Software Platform used by the Partner to sell the Technology Warehouse products and services for any lawful purpose including without limitation invoicing, statistical analysis, benchmarking and research purposes.
13. Fees and Payments
13.1. As more fully provided in the Partner Agreement the Partner shall pay the amounts specified in the written price schedule published or provided by Technology Warehouse from time to time. It is the responsibility of the Partner to ascertain the charging model applicable to the use of the Odin Platform. Such charging models include subscription charges, charges based on a percentage of consumption and set amounts per use, depending on the use and the product or service. Technology Warehouse reserves the right to amend such models and their applicability from time to time by publishing or providing updated price lists.
13.2. If no amounts for the particular product, function or action is reflected then the Fees and charges payable by the Partner for the sale of the Technology Warehouse products and services via the Odin Software Platform or service or action shall be the usual fees and charges, charged by Technology Warehouse from time to time unless it has quoted differently in writing.
13.3. Technology Warehouse may charge a fee for the use of the Odin Software Platform and any customisation thereof. Technology Warehouse reserves the right to charge a fee based on any items billed through the platform.
13.4. Technology Warehouse reserves the right to amend all such fees and charges from time to time, by publishing or providing updated price lists, and to suspend and reinstate any fees or charges from time to time. 13.5. The Partner shall be liable for all expenses incurred in the performance of its obligations or exercise of its rights hereunder and any use of the Odin Software Platform.
13.6. All amounts payable hereunder shall exclude all applicable Value Added Tax and other taxes, applicable export and import fees, customs duties and similar charges (collectively “Taxes”).
13.7. Technology Warehouse may issue separate invoices for fees and charges related to the use of the Odin Platform. Invoices are payable as provided in the Partner Agreement.
14. Audit Rights and Records
14.1. The Partner agrees to maintain and keep complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of the Partner Agreement.
14.2. Technology Warehouse and/or Odin shall have the right at its own expense, upon reasonable prior notice, to periodically audit the records of the Partner with respect to the sale of the Technology Warehouse products and services via the Odin Software Platform and use of the Odin Software Platform, either by physically visiting the Partner’s premises or by remote access as determined by Technology Warehouse and/or Odin. If such audit reveals that the Partner has underpaid Technology Warehouse the Partner shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest thereon as provided in the Partner Agreement.
14.3. If the amount of underpayment equals or exceeds five percent (5%) of the total amounts due during the applicable period, the Partner shall reimburse Technology Warehouse for the costs of such audit. Technology Warehouse’s right to audit shall continue for a period of 2 (two) years after the termination or expiration of the Partner Agreement.
15.1. The provisions of the Partner Agreement shall apply to Proprietary and Confidential Information.
15.2. The Parties acknowledge that each Party shall have access to Confidential Information. Both Parties agree that as between the Parties, Confidential Information is owned by the disclosing party.
15.3. Each Party agrees: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party shall not reproduce the Confidential Information except as necessary to comply with this Agreement and shall hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party shall create any derivative work from the other Party’s Confidential Information; (iv) to restrict access to the Confidential Information to such of its employees, staff, subcontractors, Personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
15.4. For the purposes of this clause, the Party disclosing Confidential Information shall be referred to as the “Disclosing Party” and the Party receiving the Confidential Information shall be referred to as the “Receiving Party”.
15.5. Each Party shall –
15.5.1. Hold the other Party’s Confidential Information in the strictest confidence;
15.5.2. Not make use thereof other than for the performance of its obligations under this Agreement; and
15.5.3. Only release such Confidential Information on a “need to know” basis subject thereto that the persons to whom such Confidential Information is released shall undertake to be bound by the confidentiality obligations contained herein.
15.5.4. Only release such Confidential Information when required to do so by law, or by or pursuant to the rules or any order of any court of competent jurisdiction.
15.6. Neither Party shall be entitled to use the name of the other Party in any publicity releases or advertising or for other promotional purposes without procuring the prior written consent of the Party concerned.
15.7. The Parties’ obligation in terms of this clause shall survive the termination of both the Partner Agreement and this Addendum.
16. Odin Ownership of Proprietary and Intellectual Property
16.1. The Partner acknowledges that Odin and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and all other types of intellectual property (“Intellectual Property”) in and to the Odin Software Platform and other Odin services and all work product, developments, inventions, technology or materials provided under an Addenda, (including all components thereof). Odin has expressly reserved all such rights in the aforegoing.
17. Odin Certification
17.1. The Partner understands and acknowledges that Odin has established and maintains a rigorous certification process for all Software application packaging standards (“APS Package”). An APS Package is software that allows third party software to communicate and interact with the Odin Software such that third party software can be used in conjunction with the Odin Software Platform. The purpose of the certification is to ensure proper connections and interactions with Odin software. The Partner agrees that it will not install, or facilitate the installation by a third party of, any APS Package on the software platform that has not been certified by Odin and approved in writing by Technology Warehouse. In the event that the Partner installs, or hires a third party to install on its behalf, a non-Odin certified APS Package on the software platform, the Partner shall be solely responsible for all costs associated with correcting or repairing any and all damage caused by such installation.
18.1. Each Party represents and warrants to the other that the execution and performance of this Addendum does not and shall not violate any other contract, obligation, or instrument and that it has the legal power and authority to enter into this Addendum.
18.3. Save where otherwise provided, the warranty provisions in the Partner Agreement shall apply to the use of the Odin Software Platform and the sale of the Technology Warehouse products and services via the Odin Software Platform in terms of this Addendum.
18.4. Except as otherwise expressly warranted in the Partner agreement and this Addendum, the Odin software platform and any other materials, software, data and/ or services provided by Technology Warehouse in terms of the master license agreement are provided “as is” and Technology Warehouse expressly disclaims all other warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of operability, condition, title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, system integration, workmanship, suitability, fitness for a particular purpose, or the absence of any defects therein. No warranty is made by Technology Warehouse on the basis of trade usage, course of dealing or course of trade. Technology Warehouse does not warrant that the Odin software platform or any other materials, software, data and/or services provided under this Addendum shall meet Partner’s requirements or that the operation thereof shall be for any period or uninterrupted or error-free, or that all errors shall be corrected.
19. Limitation of Liability
19.1. The provisions of the Partner Agreement relating to limitation of liability shall apply to the sale of Technology Warehouse products and services sold via the Odin Software Platform.
19.2. The parties agree that in no event shall Technology Warehouse or Odin or its licensors or suppliers be liable to the Partner for any for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Technology Warehouse or Odin have been advised of the possibility of such damages.
19.3. The disclaimers, exclusions and limitations of liability set forth in this Addendum and the Partner Agreement form an essential basis of the agreement concluded between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Addendum, including, without limitation, the economic terms, would be substantially different.
20.1. To the extent that Odin gives any indemnification to Technology Warehouse in terms of the Master License Agreement, Technology Warehouse shall give the same indemnification, to the Partner mutatis mutandis which shall be subject mutatis mutandis to all of the same restrictions, limitations and conditions imposed by Odin.
20.2. The Party seeking indemnification agrees to give the indemnifying Party (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as the indemnifying Party may reasonably request, at indemnifying Party’s expense, in connection with such defense and/or settlement.
23.1. The Parties chose the address set out in the Partner Agreement as the domicilium address for the purposes of this Addendum.
24.1. The Parties agree that the General provisions contained in the Partner Agreement shall be deemed to be specifically incorporated herein.
24.2. The expiration or termination of this Addendum shall not affect such of the provisions of this Addendum 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.
24.3. This Addendum sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof.
24.4. Save where expressly or otherwise provided for in this Addendum, all other terms and conditions in the Partner Agreement shall apply and shall be read together with this Addendum.