Subscriber Agreement

1. Definitions

In this Agreement, the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:

1.1. “Affiliates” means in relation to either Party, any company which at the relevant time is a subsidiary or holding company of such Party, or is a subsidiary of any such holding company or, with respect to either Party, any person directly Controlling, Controlled by, or under common Control with, such Party at any time during the period for which the determination of affiliation is made;

1.2. “AFSA” means the Arbitration Foundation of South Africa;

1.3. “Agreement” means this Agreement together with all notices and addenda attached hereto, as may be amended by Wakamoso from time to time on written notice to the Tenant;

1.4. “Applicable Laws” refers to all laws, regulations, statutes, ordinances, codes, rules, guidelines, directives, and governmental requirements or provisions applicable within the Republic of South Africa, as well as any international treaties or agreements ratified by South Africa that pertain to the subject matter of this Agreement, which applies to a specific Party or other entity referred to in this Agreement and its business and other activities. This includes, but is not limited to, POPIA and any other relevant legislation or legal frameworks governing the rights and obligations of the Parties in relation to the provision and use of the Services provided under this Agreement within the jurisdiction of the Republic of South Africa;

1.5. “Association” means without limitation any association, body, entity or regulator, if any, that from time to time regulates or oversees the collection, processing and provision of Personal Information, data gathering, information gathering, and/or the provision of services similar to that which the Tenant provides;

1.6. “Audit Committee” means Wakamoso, its representatives, and/or any independent third party authorised to conduct the compliance audit in terms of clause 7 of this Agreement;

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

1.8. “Commencement Date” means the date upon which the Tenant registers for the Services and agrees to be bound by the terms and conditions of this Agreement;

1.9. “Confidential Information” means all information which is confidential in nature, including but not limited to Personal Information which belongs to a Party and which is disclosed (whether in writing, orally or by any other means and whether directly or indirectly) by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) whether before or after the Commencement Date and which is marked as confidential or which by its nature can reasonably be regarded as being confidential and shall include, without limitation, information relating to the Disclosing Party’s customers, operations, processes, policies, plans or intentions, products and services, technical information, know-how, design rights, patents, trade secrets, market opportunities, finances and business affairs;

1.10. “Control” means the ability, by virtue of ownership, rights of appointment, voting rights, management agreement, or other agreement of any kind, to control or direct, whether directly or indirectly, the board or executive body or decision-making process or management of any company, non-profit company, or entity or appointee. The terms “Controlling” and “Controlled” shall have a corresponding meaning;

1.11. “Data Subject(s)” means for the purposes of this Agreement, a unique user to whom Personal Information relates included in the Tenant’s data analysis reflected on the Tenant’s Dashboard;

1.12. “Data Subject Reward” refers to the applicable reward payable by Wakamoso and/or the Tenant as the case may be, to the Data Subject(s) in return for the Data Subject’s participation in the Tenant’s use of and activities on the Platform, such as (but not limited to) answering questionnaires published on the Platform by the Tenant;

1.13. “Ethics Committee” means the committee established by the Centre for Democratising Information, a Non-Profit Company and public benefit organisation registered in the Republic of South Africa. The Ethics Committee is entrusted with overseeing and managing the ethical and lawful utilisation of the Platform by the Tenant in accordance with the terms and conditions set forth in this Agreement. The Ethics Committee may deliberate on matters pertaining to ethical and lawful conduct, compliance with all Applicable Laws, and adherence to the principles of fairness, integrity, and respect for Data Subjects. The decisions and recommendations of the Ethics Committee shall be binding upon the Tenant, subject to the applicable provisions outlined in this Agreement;

1.14. “Fees” means the subscription fees and transactional fees payable by the Tenant to Wakamoso in terms of clause 4;

1.15. “Group” means the Tenant and the Tenant’s Affiliates from time to time;

1.16. “Initial Period” bears the meaning ascribed to the term in clause 3.1 below;

1.17. “Intellectual Property” means in relation to a Party, all intellectual property of whatever nature owned and/or controlled by that Party, including without limiting the generality of the foregoing, all right, title and interest in and to all trademarks, trade or business names, trade secrets, technology, software, applications, web pages, logos, systems, manuals, methods, procedures, processes, domain names, slogans, styles, insignias, compilations, designs, know-how, patents and copyright whether registered or not and whether capable of registration or not, and in the case of Wakamoso, includes the layout “look and feel” and “get up” of the Platform;

1.18. “Non-Profit Organisation” means an organisation established for a public benefit purpose and which is not-for-profit, and which is registered as such in with the Department of Social Development in terms of the Non-Profit Organisations Act, 1997;

1.19. “Non-Profit Company” means a company incorporated under the laws of the Republic of South Africa in accordance with the provisions of the Companies Act, 2008, whose primary objectives are of a public benefit or altruistic nature and which is not established for the purpose of making a profit or financial gain for its members, directors, or officers and which operates in furtherance of its stated objectives subject to compliance with all Applicable Laws;

1.20. “Operational Terms and Conditions” refers to the operational terms and conditions set out in clauses 5, 6, 7, and 8 of this Agreement;

1.21. “Parties” means Wakamoso and the Tenant or any combination of them and “Party” means any one of them as the context may indicate;

1.22. “Personal Information” shall bear the meaning ascribed to the term in section 1 of POPI;

1.23. “Platform” means the digital infrastructure, software, and related services provided by Wakamoso to the Tenant, serving as the sole interface through which the Tenant accesses and utilises the Services and the Tenant’s Dashboard. The Platform facilitates interaction between the Tenant and Data Subjects, as defined in this Agreement, enabling the Tenant to engage with, manage, or otherwise interact with Data Subjects within the parameters set out in this Agreement;

1.24. “POPIA” means the Protection of Personal Information Act, 2013;

1.25. “Processing” shall bear the meaning ascribed to the term in section 1 of POPIA;

1.26. “Reports” means reports generated by Wakamoso and/or Wakamoso’s systems and issued to the Tenant, which may include amongst other things Personal Information of the Data Subjects;

1.27. “Questionnaire(s)” refers to a document compiled by the Tenant containing a series of inquiries or prompts designed to collect specific information, including Personal Information, from Data Subjects;

1.28. “Services” means the services provided by Wakamoso to the Tenant through the Tenant’s use of the Platform in terms of this Agreement;

1.29. “Tenant” means the juristic person who entered into this Subscriber Agreement on the Commencement Date by registering as a tenant on the Platform.;

1.30. “Tenant’s Dashboard” refers to the graphical user interface component of the Platform, accessible to the Tenant upon logging into the Platform. The Tenant’s Dashboard provides a consolidated view of information deemed relevant to the Tenant by Wakamoso, including but not limited to the number of Data Subjects associated with the Tenant’s account. The Tenant’s Dashboard serves as a centralised hub for accessing key metrics, data summaries, and other pertinent information essential for managing the Tenant’s interactions with Data Subjects;

1.31. “Wallet” refers to a digital storage facility provided by Wakamoso to the Tenant following the Commencement Date and the activation of the Tenant’s account on the Platform. The Wallet allows the Tenant to securely store and manage monetary funds and awards associated with the Tenant’s account for the purpose of conducting transactions or making payments or giving rewards within the Platform’s ecosystem and in accordance with the terms and conditions set out in this Agreement;

1.32. “Wakamoso” means Wakamoso Africa Proprietary Limited, a private company with limited liability and duly registered in accordance with the laws of the Republic of South Africa with registration number 2022/762282/07; and

1.33. “Wakamoso Mobile Application” refers to the software designed by Wakamoso to run on smartphones, tablets, or other mobile devices, which may be downloaded and installed by users (such as Data Subjects) from relevant digital distribution platforms. The Wakamoso Mobile Application shall offer Data Subjects with a wide range of functionalities, including but not limited to accessing and uploading content, accessing and responding to Questionnaires, facilitating communications between the Data Subject, Wakamoso and the Tenant, and enabling transactions.

2. Interpretation

In this Agreement unless the context indicates the contrary intention:

2.1. any expression which denotes (i) the singular shall include the plural and vice versa; (ii) any gender includes the other genders; (iii) a person includes a natural person or a juristic person and vice versa;

2.2. where a word or phrase is defined, its other grammatical forms have a corresponding meaning. The use of the word "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example;

2.3. if any provision in a definition is a substantive provision conferring any right or imposing any obligation on any Party, then notwithstanding that it is only in the definitions clause, effect shall be given to it as if it were a substantive provision in this Agreement;

2.4. when any number of days is prescribed, such number shall exclude the first and include the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding day which is a Business Day;

2.5. the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provides 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;

2.6. any reference in this Agreement to any law (including common law or customary practice) or legislation is a reference to such legislation or regulation in existence at the Commencement Date and as amended and or re-enacted from time to time and shall include all regulations as may be enacted under such legislation, including as amended or re-enacted from time to time; and

2.7. the clause headings have been inserted for convenience only and shall not be taken into account in the construction or interpretation of any of the provisions to which it relates. The clause headings are for descriptive purposes only and shall not in any way limit or amplify the terms of this Agreement. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause;

2.8. Defined terms appearing in this Agreement in initial upper case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their ordinary meaning and shall, unless the context otherwise indicates, include the term as defined; and

2.9. The rule of construction that an Agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.

3. Commencement, duration, and termination of this Agreement

3.1. This Agreement shall continue for an initial period of 12 (twelve) months (“Initial Period”), commencing on the Commencement Date.

3.2. This Agreement shall, unless otherwise notified by the Tenant in writing to Wakamoso at least 30 (thirty) days prior to the end of the Initial Term or any renewal period, renew automatically at the end of the Initial Period and each renewal period thereafter, for successive periods of 12 (twelve) months each, unless earlier terminated by either Party in terms of clauses 14 and/or 15 below.

3.3. Except as specifically provided in clause 3.2, the Tenant shall not be entitled to terminate this Agreement prior to the end of any Initial Period or any renewal period.

3.4. Notwithstanding the provisions of clause 3.1, Wakamoso shall be entitled to terminate this Agreement at any time for convenience on 30 (thirty) days’ written notice to the Tenant, for any reason whatsoever.

4. Fees payable by the Tenant to Wakamoso

4.1. In return for the Services, the Tenant shall pay to Wakamoso the Fees set out on the Tenant’s profile on the Platform.

4.2. All payments shall be made by the Tenant to Wakamoso on the Platform without deduction or set-off of any nature whatsoever.

4.3. The manner and timing of the payment of the Fees by the Tenant to Wakamoso will be managed on the Platform by Wakamoso in its sole discretion.

4.4. Should the Tenant fail to pay the Fees as prescribed, Wakamoso shall have the right to suspend or terminate the Tenant’s use of the Platform with immediate effect without liability or penalty of whatsoever nature and will pursue all available legal remedies to collect all Fees due and owing by the Tenant to Wakamoso.

4.5. Wakamoso reserves the right to amend the Fees on notice to the Tenant from time to time. Should the Tenant not accept the increase in Fees, the Tenant shall have the right to terminate this Agreement, without penalty, on 7 (seven) days’ written notice to Wakamoso.

5. Wakamoso’s services, including Questionnaires, security and access to the Services

5.1. Wakamoso shall render the Services to the Tenant on the terms and conditions set out in this Agreement. Except to the extent specifically set out in this Agreement, Wakamoso makes no representations and gives no warranties and/or guarantees of whatsoever nature, whether express, implied, implied in law or residual in respect of this Agreement, any Reports, the Platform and/or the Services and/or the correctness or completeness of the information provided.

5.2. Upon paying the relevant Fees as stipulated in clause 4 to Wakamoso, the Tenant will be given access to the Platform by Wakamoso. The Tenant shall ensure that its access and use of the Platform will be by an authorised representative of the Tenant and that such access and use does not contravene any provisions of this Agreement or any Applicable Laws.

5.3. The Tenant agrees and understands that Questionnaire(s):

5.3.1. shall be uploaded to the Platform prior to release of any Questionnaire(s) to any Data Subjects. The Tenant undertakes and warrants to Wakamoso that no Data Subject shall receive a Questionnaire prior to the Questionnaire having been approved by the Ethics Committee in terms of clause 5.3.2 below;

5.3.2. intended to be released to Data Subjects by the Tenant will not be released on the Platform until:

5.3.2.1. the form and content of the relevant Questionnaire(s) has been approved by a nominee of the Ethics Committee. For the Ethics Committee to properly consider the Questionnaire, the Tenant shall, upon submitting the Questionnaire for approval, provide a description of the Questionnaire sufficiently detailed that at a minimum explains: (i) the purpose of the Questionnaire; (ii) how the data collected from the Questionnaire will be used; and (iii) what the data collected from Questionnaire will be used for. Wakamoso undertakes that a nominee of the Ethics Committee review the form and content of the relevant Questionnaire(s) within a reasonable time but by no later than 7 (seven) Business Days after the relevant Questionnaire(s) containing sufficiently detailed descriptions as contemplated in this clause 5.3.2.1 have been uploaded on the Platform for approval;

5.3.2.2. the Tenant has paid all Fees due and payable to Wakamoso; and

5.3.2.3. the Tenant has paid into its Wallet sufficient funds to cover amounts due and payable to the Data Subjects.

5.4. The Tenant agrees and warrants that all responses by Data Subjects to Questionnaires shall be used for legitimate, lawful purposes consistent with the terms of this Agreement only and in compliance with all Applicable Laws, including but not limited to POPIA and any and all other data protection or similar laws. Any actions or decisions made by the Tenant pursuant to information obtained from the Platform and/or the Questionnaires are taken at the sole risk of the Tenant.

5.5. If use of the Platform by the Tenant is compromised (including use of the Tenant’s profile by an unauthorised party or parties or unauthorised access to the Platform caused by or attributable to the Tenant), the Tenant shall immediately notify Wakamoso in writing thereof. The Tenant is and remains liable for all its users’ compliance with the terms of this Agreement. The Tenant shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Personal Information. The Tenant will be liable for all transactions, fees and other costs arising out of the use of the Platform by any person, whether or not such use has been authorised by Wakamoso, unless the Tenant has provided Wakamoso with the written notice of such security breach.

5.6. To the extent that it may apply, the Tenant shall comply with, and shall procure that all of the Tenant’s employees, representatives, contractors, sub-contractors, and agents abide by, Applicable Laws, Wakamoso’s applicable data security policies and processes pertaining to the use of the Platform, the Services, the transmission and processing of Personal Information or any other information between the Tenant, Data Subjects and/or Wakamoso via the Platform. The Tenant shall be liable for all acts and omissions of such Tenant employees, representatives, contractors, sub-contractors, and agents as if such acts and omissions were the Tenant’s acts or omissions. Compliance with any such policies does not relieve the Tenant from its own compliance responsibility in respect of Applicable Laws.

5.7. The Tenant shall implement and maintain adequate security systems, practices and procedures that protect the integrity and confidentiality of the Personal Information that the Tenant obtains from Wakamoso, the Platform and the Data Subjects; and ensure that such Personal Information is protected against unlawful intrusion, wrongful alteration, unauthorised disclosure, use, distribution, dissemination, processing, transfer or access by any unauthorised third parties (including on-line access), as required in terms of all Applicable Laws, including amongst others, condition 7 of POPIA (being provisions dealing with security safeguards). Such security systems, practices and procedures shall align to generally accepted information security practices and procedures applicable to the Tenant or which is required in terms of Applicable Laws, specific industry or professional rules and regulations that may be applicable to the Tenant.

5.8. Any decision, directive or ruling made by Wakamoso and/or the Ethics Committee as the case may be, including without limitation in respect of the Questionnaire(s) and/or any Reports, is indicative only, for Wakamoso’s own compliance purposes and does not constitute legal advice or compliance guidance of any nature whatsoever. Wakamoso and/or the Ethics Committee will have no liability of any nature, whether in contract or delict or otherwise, for any loss, damage, claims, costs or expenses whatsoever and howsoever arising from or in any way connected with any such decision, directive or ruling or any reliance placed on it. The Tenant remains responsible for obtaining its own legal advice and compliance guidance at its cost in respect of the use of the Platform, the Services, the Questionnaire(s) and/or the Personal Information.

6. Acknowledgments and consents by the Tenant

The Tenant acknowledges and agrees that:

6.1. the Tenant will actively engage with the Data Subjects and shall respect the Platform’s objectives and principles of inclusivity;

6.2. the Tenant shall as far as is reasonably possible and to the extent required by Applicable Laws involve Data Subjects in decision-making processes when collecting data from Data Subjects;

6.3. the Tenant will act ethically and lawfully at all times when utilising the Platform and/or interacting with Data Subject, including without limitation in accordance with Applicable Laws, and shall ensure the privacy and security of Data Subjects in line with all Applicable Laws;

6.4. all information of whatever nature supplied by Wakamoso and/or any Data Subject is for use by the Tenant only and shall be used for an ethical, lawful purpose and in compliance with Applicable Laws and all directives, decisions and rulings issued by the Ethics Committee;

6.5. any information supplied to the Tenant by Wakamoso and/or any Data Subject of whatever nature, whether printed, electronic, typed, written or oral, is supplied for use by the Tenant only, shall be used only for the purposes as permitted by this Agreement and in terms of this Agreement, is strictly confidential and shall not be divulged to any third party without the prior written consent of the Ethics Committee;

6.6. the Tenant will comply with the applicable requirements for the processing of Personal Information as prescribed by POPIA and any and all other Applicable Laws, including but not limited to the obtaining of the requisite consent of the Data Subject, Ethics Committee, or any other relevant person where required in terms of Applicable Laws; and

6.7. Wakamoso shall not be liable for the correctness or accuracy of information provided by Wakamoso or any Data Subject to the Tenant or any other person.

7. Compliance audit

7.1. The Tenant shall, as and when required by Wakamoso. upon reasonable prior notice by Wakamoso, submit to a compliance audit in order for Wakamoso and the Ethics Committee to verify the Tenant’s compliance with the terms and conditions of this Agreement, or if any Association or entity imposes a legal obligation on Wakamoso to conduct such an audit.

7.2. Should an audit be carried out, the Tenant shall on Wakamoso’s request furnish the Audit Committee with any information including data, records, reports, and any other additional or specific information for the purposes of conducting the audit. If the information furnished to the Audit Committee is insufficient to enable to the Audit Committee to confirm the Tenant’s compliance with this Agreement, the Audit Committee shall be entitled, on reasonable notice to the Tenant, to attend at the Tenant’s offices to conduct such an audit as may be necessary to determine the Tenant’s compliance with this Agreement. Neither Wakamoso nor the Audit Committee, as the case may be, shall be entitled to disclose any information obtained as a result of the audit to any unauthorised third party, and shall protect any of the Tenant’s Confidential Information which may have been disclosed or become known to Wakamoso as a result of the audit in the same manner in which it protects its own Confidential Information of a similar nature.

7.3. The Tenant undertakes and agrees to provide all assistance that may be reasonably required by the Audit Committee, including providing the Audit Committee with unfettered access to the Tenant’s premises and personnel and any books, records, systems, data, and documents (including copies thereof) that may be relevant to the audit.

7.4. Should the Tenant refuse to comply with the terms and conditions set out in this clause 7, Wakamoso shall have the right to cancel this Agreement with immediate effect without penalty or liability, on written notice to the Tenant. The Tenant shall be liable for any consequences in law which may result from such failure to comply with the provisions of this clause 7.

8. Warranties

The Tenant warrants to Wakamoso that:

8.1. the Tenant is lawfully entitled to submit and/or receive Personal Information and/or Confidential Information to or from Wakamoso;

8.2. where the Tenant submits and/or receives Personal Information to or from Wakamoso or processes such Personal Information, the Tenant has complied with each and every applicable condition in terms of POPIA or other Applicable Laws;

8.3. the Tenant has taken reasonable steps to ensure that all information, including but not limited to Personal Information, provided or reported to Wakamoso is accurate, up-to-date, relevant, complete, valid and not duplicated;

8.4. the Tenant shall not use any Personal Information provided to it by Wakamoso and/or any Data Subjects in order to compile databases; marketing lists; or directly or indirectly sell and/or use such Personal Information for any purpose deemed to be unlawful and/or unethical by the Ethics Committee or which is in violation of Applicable Laws. If the Tenant stores the Personal Information, it shall be for audit purposes only and shall not be re-used at any time after the date of enquiry for any other purposes whatsoever;

8.5. all of the Tenant’s staff that use the Platform, the Services and/or Personal Information are suitably qualified, trained and skilled to do so;

8.6. the Tenant shall not sell, transfer, sub-license, distribute, commercially exploit, lease, transfer, assign, distribute or otherwise make available to or use for the benefit of any third party, any Personal Information;

8.7. the Tenant shall not copy, adapt, alter, modify, reverse engineer, decompile or otherwise interfere with Personal Information or combine it with other materials without Wakamoso’s prior written consent or as permitted by law;

8.8. the Tenant shall only use the Personal Information and/or information obtained from the Platform on equipment owned, operated, or controlled by the Tenant or on such other site as agreed by the Parties from time to time in writing;

8.9. the Tenant shall not allow any third party to amend, modify or otherwise alter the Personal Information without Wakamoso’s prior written consent; and

8.10. each warranty contained in this Agreement shall be deemed to be a material warranty inducing Wakamoso to enter into this Agreement.

9. Wakamoso’s rights and obligations

9.1. Whilst Wakamoso undertakes to use its reasonable endeavours to ensure that the Tenant has access to the Platform when use of the Platform is permitted, Wakamoso in no way guarantees availability of or access to the Platform.

9.2. Wakamoso shall be entitled to automatically collect the Tenant’s browser type and browser software version to tailor the presentation of the Platform and to maintain a record of the Tenant’s use of the Platform and/or the Services.

9.3. Wakamoso’s web server software may record a log file of IP addresses that access the Platform.

9.4. Wakamoso may collect the Tenant’s IP address information, and may use the IP addresses to identify a user when, in Wakamoso’s sole discretion, Wakamoso determines that it is necessary to:

9.4.1. enforce compliance with this Agreement and any other agreement concluded between Wakamoso and the Tenant, including all terms of use and terms of service published by Wakamoso on the Platform; and/or

9.4.2. protect, amongst other things, its data, services, customers, and Data Subjects.

9.5. When the Tenant uses the Platform, Wakamoso may collect information about the Tenant’s account transactions and information about the Tenant’s computer equipment and infrastructure for lawfully permitted purposes.

9.6. Wakamoso shall be entitled to collect additional information from or about the Tenant through other lawful means when Wakamoso deems it appropriate to do so.

10. The Tenant’s rights and obligations

The Tenant acknowledges and agrees that:

10.1. the information supplied by it upon registration is accurate, complete, and valid, where such information changes during the terms of this Agreement the Tenant will provide Wakamoso with updated, complete and valid information, and that it has read and understood the terms and conditions of this Agreement.

10.2. Wakamoso may:

10.2.1. fully investigate and verify any information regarding the Tenant and this Agreement and it consents to the provision of any Confidential Information and/or Personal Information required by Wakamoso from any person, for the purposes of conducting such investigation; and

10.2.2. contact the Tenant via email, telephone and other means from time to time in order to market any of our product offerings to you;

10.3. the information and data gathered by the Tenant through its use of the Platform shall be utilised solely and exclusively for a lawful and ethical purpose. As between the Parties, the Ethics Committee shall have the sole and exclusive right to deem the Tenant’s use of the Platform, the Services, and any information and/or data as unlawful and/or unethical, in which case Wakamoso shall be entitled to immediately terminate this Agreement on written notice to the Tenant;

10.4. save for retaining the Personal Information provided to it by Wakamoso for audit purposes, the Tenant may not store and re-use Personal Information. The Tenant undertakes to, at all times, comply with any and all Applicable Laws, industry rules, directives, rules and policies issued by an Association and/or applicable codes of conduct in respect of the processing, use and storage of such Personal Information by the Tenant;

10.5. to allow Wakamoso to audit the purpose for which the information and data gathered by the Tenant through its use of the Platform are used including without limitation compliance with all Applicable Laws;

10.6. access to the Services may only be done through the Platform. The Tenant is explicitly prohibited from accessing the Services by accessing data via the back-end through interfaces other than the Platform. Circumvention of this clause 10.6 will result in the immediate termination of this Agreement by Wakamoso;

10.7. Wakamoso retains the right to institute legal action against the Tenant in respect of any unlawful, criminal or fraudulent activity committed by the Tenant in respect of:

10.7.1. the Tenant’s use of the Platform and/or the Personal Information; and/or

10.7.2. the Tenant’s use of information and/or data obtained through its use of the Platform and/or any of the Services in terms of this Agreement;

10.8. the Tenant is familiar with the provisions of Applicable Laws which govern its activities as contemplated under this Agreement, including without limitation POPIA and undertakes to abide by all Applicable Laws; The Tenant is also aware that a breach of the Applicable Laws may constitute an offence under such Applicable Laws;

10.9. the Tenant shall comply with all directives, rules and policies issued by Wakamoso, the Ethics Committee and/or any Association from time to time, in so far as it relates to the Tenant’s use, processing and storage of Personal Information, the Platform, and/or the Services;

10.10. the Tenant shall not cede or assign its rights or obligations in terms of this Agreement to any third party without obtaining the prior written consent of Wakamoso, which consent will not be unreasonably withheld;

10.11. if one company or more companies in the Tenant’s Group use the Platform and/or the Services, the Tenant shall procure that such Group company and/or companies each agree to be bound by the terms and conditions of this Agreement. The Tenant shall remain liable for any such Group company’s use of the Platform and/or the Personal Information and any breach by a Group company and/or companies of this Agreement; and

10.12. the Tenant shall be responsible at its own cost for establishing all requisite infrastructure, including without limitation network and/or telecommunications links, to connect with the Platform and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Tenants infrastructure or links or any internet failures.

11. Intellectual property rights

11.1. Each Party retains all rights and ownership in and to its Intellectual Property, including any enhancements, modifications, customisations, developments or derivatives thereof. Nothing in this Agreement transfers ownership in and to either Party’s Intellectual Property to the other Party.

11.2. All Intellectual Property rights in the Services, the Platform, and/or Personal Information remains vested in Wakamoso or its third-party licensors and nothing in this Agreement shall be deemed to transfer or amend such rights.

11.3. Wakamoso hereby grants the Tenant a non-exclusive, non-transferable, non-sublicensable license to use the Personal Information gathered by the Tenant’s use of the Platform in accordance with the provisions of this Agreement and for the purposes permitted under POPIA and solely for the Tenant’s own business purposes.

12. Confidentiality

12.1. The Parties acknowledge that the Confidential Information is proprietary, and is a valuable, special and/or unique asset belonging to the Disclosing Party. The Disclosing Party and/or its Affiliates may suffer irreparable harm or substantial economic and other loss in the event of such Confidential Information being disclosed to a third party or used otherwise than in accordance with this Agreement and/or where applicable in compliance with Applicable Laws.

12.2. The Receiving Party irrevocably undertakes and unconditionally agrees and undertakes:

12.2.1. to treat and safeguard the Confidential Information as strictly private, secret, and confidential;

12.2.2. not to use or permit the use of the Confidential Information for any purpose other than for the purpose of implementing or enforcing this Agreement;

12.2.3. that it shall not during the existence of this Agreement or at any time after the termination of this Agreement use, divulge, disclose, exploit, permit the use of or in any other manner whatsoever use the Disclosing Party's Confidential Information or disclose the existence or contents of this Agreement without the prior written consent of the Disclosing Party, which consent may be granted or withheld in the sole and absolute discretion of the Disclosing Party. Where such consent is given, the Receiving Party shall enter into a confidentiality and non-disclosure agreement with the third party to whom the Confidential Information is disclosed on terms at least as extensive and binding upon them as those set out in this clause 12, and shall provide the Disclosing Party with a signed copy of such agreement within 7 (seven) days from the Receiving Party disclosing the Confidential Information or part thereof to such third party;

12.2.4. not to decompile, disassemble or reverse engineer or otherwise modify, adapt, alter or vary the whole or part of the Confidential Information;

12.2.5. not to copy or reproduce the Confidential Information by any means without the prior written consent of the Disclosing Party, it being recorded that any copies shall be and remain the property of the Disclosing Party.

12.3. It is hereby specifically provided that the Receiving Party may disclose the Disclosing Party’s Confidential Information and the existence and contents of this Agreement:

12.3.1. to the extent required by law (other than in terms of a contractual obligation of the Receiving Party);

12.3.2. to, and permit the use thereof by, its employees, representatives, and professional advisors to the extent strictly necessary for the purpose of implementing or enforcing this Agreement or obtaining professional advice or conducting its business and only on a need-to-know basis. The Parties agree to take the necessary steps to ensure that all their employees’ representatives and professional advisors who have access to the Confidential Information of the Disclosing Party are made aware of the provisions of this clause 12 and that they are bound to confidentiality undertakings in terms at least as restrictive as those set out herein. It is hereby specifically agreed that any disclosure or use by any such employee, representative or advisor of such Confidential Information or other information for any other purpose shall constitute a breach of this clause 12 by the Receiving Party.

12.4. The provisions of this clause 12 shall cease to apply to any Confidential Information of a Party which is or becomes generally available to the public other than as a result of a breach by the Receiving Party of its obligations in terms of this clause 12 or in respect of any Confidential Information which was received by the Receiving Party from a third party who did not acquire such Confidential Information subject to any duty of confidentiality in favour of the Disclosing Party; or in respect of any Confidential Information which was known by the Receiving Party prior to receiving such information from the Disclosing Party.

13. Liability and indemnities

13.1. Notwithstanding any other provision of this Agreement:

13.1.1. Wakamoso shall not be liable for any loss, liability, expense, or damage of whatsoever nature suffered by the Tenant (whether or not such loss, liability, expense and/or damage is caused as a result of any act or omission on the part of Wakamoso, its directors, employees, sub-contractors or agents) as a result of or which may be attributable to –

13.1.1.1. the Tenant’s use and reliance on information, including Personal Information, and/or data obtained as a result of its use of the Services and/or the Platform by Tenant, on the use of information, including Personal Information obtained via Questionnaire;

13.1.1.2. any mistake, error or omission in the Platform, including Personal Information obtained as a result of the use of the Services and/or the Platform, or any unavailability of the Platform;

13.1.1.3. any delay or failure in delivering or communicating any information or data for any reason whatsoever, which is beyond Wakamoso’s reasonable control, including an event of Force Majeure;

13.1.1.4. the downtime of or unavailability of the Platform, any communication lines, telecommunications service or infrastructure or Eskom lines; and/or

13.1.1.5. a breach by the Tenant of any of the provisions of this Agreement,

13.1.2. each Party’s total aggregate liability to the other Party under this Agreement and howsoever arising will be limited to an amount equal to the fees and charges actually paid by the Tenant in the 12 (twelve) month period immediately preceding the date on which the cause of action arose.

13.1.3. Wakamoso shall not, under any circumstances, be liable for indirect, special, consequential or punitive damages, howsoever arising and whether from contract or delict, save and except where such damages arise as a result of such a proven breach of its obligations relating to Intellectual Property Rights of third parties and/or Confidentiality arising out of or in terms of this Agreement.

13.2. Without prejudice to any of Wakamoso’s rights in law or in terms of this Agreement, the Tenant indemnifies Wakamoso against all loss, liability, damage and expenses of any nature whatsoever which Wakamoso may suffer or incur as a result of or in connection with the negligent acts or omissions of the Tenant, its employees, agents, representatives and/or sub-contractors or a breach by the Tenant or its employees, agents, representatives and/or sub-contractors of this Agreement or Applicable Laws.

14. Breach

Unless this Agreement provides otherwise, if any Party (“Defaulting Party”) commits a breach of any material provision of this Agreement and should such breach be –

14.1. capable of being remedied but the Defaulting Party fails to remedy such breach within 14 (fourteen) days after receiving written notice from the other Party (“Aggrieved Party”) requesting it to do so; or

14.2. incapable of being remedied;

then the Aggrieved Party shall be entitled, without prejudice to any other rights which it may have, to claim specific performance of the Defaulting Party’s obligations whether or not due for performance or to cancel this Agreement, in either event without prejudice to the Aggrieved Party’s right to claim damages.

15. Summary termination

If either Party:

15.1 being a partnership, is dissolved; or

15.2 being an individual, makes application for or is sequestrated, or is placed under or applies for debt counselling or an administration order; or

15.3 being a Non-Profit Company or Non-Profit Organisation is barred or otherwise prevented from carrying on its function for which it exists by any regulatory body, governmental authority (including but not limited to the Department of Social Development) or any other applicable entity with governing powers over that Non-Profit Company or Non-Profit Organisation, as the case may be;

15.4 being a company, ceases to trade, applies for or is wound-up (save for a voluntary winding-up for the purposes of a voluntary, bona fide reconstruction or amalgamation), or is placed under a provisional or final order of liquidation or judicial management; or compromises or attempts to compromise generally with its creditors, or is the subject of a notice to strike off the register of Companies & Intellectual Property Commissioner’s Office, or passes a resolution to begin business rescue proceedings in terms of the Companies Act 71 of 2008, or is placed under business review in any other manner, or is deregistered from any organisation or Association that regulates the activities of that Party, then in any of those events, the other Party shall be entitled, without prejudice to its other rights in law including, without limitation, the right to claim damages, to cancel this Agreement or to claim immediate specific performance of all of the first mentioned Party’s obligations, whether or not otherwise then due for performance.

16. Consequences on termination

On termination of this Agreement the Tenant shall –

16.1. pay all amounts then due and owing to Wakamoso;

16.2. immediately cease all use of the Platform, Personal Information and/or the Services, including Confidential Information and return to Wakamoso: (i) all items bearing Wakamoso’s trademark, service mark, trade name or logo; and (ii) all records, files, information, documentation and other materials, irrespective of the medium upon which same is stored, belonging to Wakamoso;

16.3. delete all copies and précis of the aforementioned items from its systems and purge all Personal Information from its computer system(s), storage media and other files and at Wakamoso’s option either destroy or deliver to Wakamoso any Reports provided to it;

16.4. within 30 (thirty) days of the termination date furnish us with a certificate confirming the return and deletion of the aforesaid items, and that it has and/or will have complied with the remaining termination obligations of this clause 16.

17. Governing law and jurisdiction

17.1. This Agreement (including its validity, existence and implementation, the interpretation and application of its provisions, of this Agreement) shall be interpreted and governed in all respects by the laws of the Republic of South Africa.

17.2. The Parties consent to the Magistrates Court having jurisdiction for the determination of any action or proceeding relating to monies owing by the Tenant to Wakamoso which otherwise may be beyond the jurisdictional monetary limit of the said court. In the event of such legal action being instituted by Wakamoso against the Tenant for monies owing to it, the Tenant will be held responsible for all costs on an attorney client scale.

18. Dispute resolution

18.1. Subject to clause 17.2 above, any other dispute arising out of and in connection with this Agreement, including any questions regarding its existence, validity, implementation, rectification, or termination shall, in the first instance, be determined by the senior executives of the Parties. If the Parties are unable to resolve the dispute within 14 (fourteen) days after the dispute arises, then they shall, unless otherwise agreed upon in writing, appoint a third party to act as a mediator (and not an arbitrator) to mediate in the resolution of the dispute. Such mediator shall be selected by the Parties or, failing this, by AFSA. A dispute within the meaning of this clause exists once one Party notifies the other in writing of the nature of the dispute and requires the resolution of the dispute in terms of this clause 18.1.

18.2. Any dispute, which is not resolved by the parties in terms of clause 18.1, shall, after being referred by any Party, be finally determined in accordance with the rules of the AFSA by an arbitrator appointed by agreement between the Parties, failing which an arbitrator appointed by the Chairman of AFSA or its successor-in-title. The arbitration will be held as an expedited arbitration in Centurion in accordance with the then current rules of AFSA by 1 (one) arbitrator, including any appeal against the arbitrator’s decision. The provisions of this clause 18.2 shall not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process for which purpose the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa. The references to AFSA shall include its successor or body nominated in writing by it in its stead.

18.3. This clause 18 shall remain in effect even if this Agreement terminates or expires, is nullified, or cancelled for whatsoever reason or cause.

19. Force majeure

19.1. If any Party (“Affected Party”) is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of an event of Force Majeure, then the Affected Party shall be relieved of its obligations hereunder during the period that such event continues (and for so long as the Affected Party is so prevented from fulfilling its obligations, then the corresponding obligations of the other Party shall be suspended to the corresponding extent), and the Affected Party shall not be liable for any delay and/or failure in the performance of its obligations under this Agreement during such period, provided that if the Force Majeure event continues for a period longer than 21 (twenty one) days, either Party may cancel this Agreement with immediate effect and without penalty.

19.2. An event of force majeure (“Force Majeure”) shall mean any event or circumstance whatsoever which is not within a Party’s reasonable control including vis major, casus fortuitous, any act of God or nature, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, the downtime of any communications line, the availability of any telecommunications service or infrastructure or Eskom lines, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities.

20. Domicilium citandi et executandi, notices

20.1. The Parties choose as their address for purpose of legal proceedings and legal notices:

20.1.1. as regards the Tenant: The Tenant’s Physical Address provided upon registration to Wakamoso on the Commencement Date;

20.1.2. as regards Wakamoso: 14 King Street, Irene, Centurion, Gauteng, 0062

at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties or at such other physical address, not being a post office box or poste restante, of which the Party concerned may notify the other in writing.

20.2. Any written notices required in terms of clause 20.1 above shall only be satisfied if such notice is given in a written, paper-based form. The provisions of the Electronic Communications and Transactions Act 25 of 2002 are expressly excluded from the provisions of clause 20.1 above.

20.3. Any other written notices in connection with this Agreement shall be addressed:

20.3.1. as regards the Tenant, to the email address(es) provided by the Tenant in the tenant information upon registration;

20.3.2. as regards Wakamoso, to the following email address: tenant@wakamoso.africa,

or at such other address of which the Party concerned may notify the other in writing.

20.4. Any notice given in terms of this Agreement shall be in writing and shall –

20.4.1. if delivered by hand between the hours of 09:00 and 16:30 on any Business Day to the addressee’s physical address for the time being, be deemed to have been received by the addressee at the time of delivery;

20.4.2. if sent electronically, be deemed to have been received on the first Business Day following the successful transmission thereof as evidenced by the electronic confirmation of receipt (unless the contrary is proven). It is recorded for the avoidance of doubt that a legal notice sent by a Party shall not be regarded as valid legal notice, if sent electronically in terms of this clause 20.4.2.

20.5. Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by a Party, at its chosen address set out above, shall be an adequate written notice of communication to such Party.

21. Non-solicitation

21.1. Neither Party will, for a period of 12 (twelve) months after the Commencement Date, without the prior written consent of the other Party, which consent shall not be reasonably refused, make any offer of employment to, or employ or engage, any of the other Party's consultants, officers or employees involved in the execution of this Agreement. The provisions of this clause 21.1 shall not apply to personnel of a Party who independently responded to indirect, non-targeted solicitations (such as general job postings/advertisements or agency referrals) or a Party’s employees contacting the other Party on their own behalf and in an unsolicited manner.

22. General

22.1. This Agreement constitutes the sole record of the Agreement between the Parties and supersedes and overrides any prior commitments, undertakings or representations (whether written or oral) between Wakamoso and the Tenant in respect of the subject matter hereof. No Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. Subject to clause 22.2, no addition to, variation, or agreed cancellation of any provision of this Agreement shall be of any force or effect unless reduced to writing and signed in a written, paper-based form by both Parties.

22.2. Notwithstanding clause 22.1, Wakamoso shall be entitled to vary the Operational Terms and Conditions of this Agreement from time to time on written notice to the Tenant.

22.3. In the event of a conflict between the provisions of the Agreement and any Applicable Laws, the provisions of the Applicable Laws will prevail. If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this Agreement which shall continue to be of full force and effect. All provisions of this Agreement and any schedule or appendix hereto shall be independent of each other and deletion from or the invalidity of any such provision or schedule shall not affect the remainder of this Agreement.

22.4. No indulgence or extension of time which either Party (the “Grantor”) may grant to the other (the “Grantee”) shall constitute a waiver of, whether by estoppel or otherwise, limit any of the existing or future rights of the Grantor in terms hereof, save in the event and to the extent that the Grantor has signed a written document expressly waiving or limiting such right.

22.5. Notwithstanding anything to the contrary contained herein, this Agreement shall endure for the benefit of and be binding on the successors-in-title and permitted assigns of the Parties. The rights and obligations of each Party arising out of or pursuant to this Agreement or its termination or cancellation shall devolve upon and bind its legal representatives, successors-in-title and permitted assigns.

22.6. Each Party shall bear and pay its own fees and costs of and incidental to the negotiation, drafting, preparation and execution of this Agreement.