Mint's Terms and Conditions
Mint's Terms and Conditions
1 | Introduction
The Customer requires the specialist expertise and knowledge of Mint to perform the Services.
Mint has the necessary expertise, skill, know-how, qualifications, and ability to perform the Services.
The Customer hereby appoints Mint, and Mint hereby accepts such appointment, to perform the Services, upon the terms and conditions contained herein.
2 | Interpretation
These terms and conditions, the related Agreement to which they are attached, including any annexures thereto, constitute the entire agreement between the Parties.
These terms and conditions may be amended and/or updated on the website from time to time. The Customer agrees that it is responsible for ensuring that is familiar with any such amendments or updates.
These terms and conditions may be supplemented by Work Orders. In the event of any conflict between these documents, the terms and conditions will take precedence.
3 | Definitions
For purposes of the Agreement the following words shall have the provided meanings:
a. “Affiliates” means any legal entity that owns, is owned by or is in common ownership with a Party .
b. “Agreement” means the Proposal/MSA or any other written agreement between the parties together with any schedules, annexes, or appendices thereto.
c. “Applicable Laws” shall mean all national, provincial, local and/or municipal legislation, regulations, statutes, by-laws, ordinances, guidance notes, Consents and/or laws of any relevant Governmental Authority and/or any other instrument having the force of law as may be issued and in force from time to time relating to or connected with the activities or the engagement between the Parties as contemplated under the Agreement.
d. “Business Day” shall mean any day other than a Saturday, Sunday, or public holiday in accordance with the laws of England and Wales.
e. “Business Hours/Hours” shall mean the hours from 08h00 to 17h00 ( UK time) on Business Days accumulating to a total of eighty (80) hours monthly.
f. “Customer” shall mean the Customer described in a Project Work Order.
g. “Confidential Information” shall mean any and all information relating to either Party’s business information (technical, commercial, operational, financial) and business relationships including, but not limited to, research, developments, product plans, products, services, diagrams, formulae, processes, techniques, technology, software, know-how, designs, ideas, discoveries, inventions, improvements, copyrights, trademarks, trade secrets, customers, suppliers, markets, marketing, Intellectual Property and Personal Information, disclosed either directly or indirectly in writing, orally or visually and which the disclosing Party desires to protect against unrestricted disclosure or competitive use, and which is furnished pursuant to the Agreement.
h. “Consent” shall mean any voluntary, specific, and informed expression of will in terms of which permission is given as set out in the Data Protection Act 2018 and GDPR.
i. “Data” shall mean any data, including Personal Information as defined in the Data Protection Act 2018 and GDPR and any other Applicable Laws.
j. “Data Subject” shall mean any natural or juristic person to whom the Personal Information relates as set out in the Data Protection Act 2018 and GDPR.
k. “Effective Date” shall mean the Signature Date of the Agreement, and, in respect of each Project Work Order, the effective date stipulated therein, failing which it shall be the Signature Date of such Project Work Order.
l. “Data Protection Officer” shall have the meaning ascribed to in terms of the Data Protection Act 2018 and GDPR.
m. “Intellectual Property” shall mean all work product generated by each Party including, but not limited to, any and all information, notes, material, drawings, records, diagrams, processes, technology, firmware, software, know-how, designs, ideas, discoveries, inventions, improvements, copyrights, trademarks and trade secrets; and includes the various methodologies, procedures, processes and techniques, models (including, without limitation, function, process, system and data models), templates, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems which each Party has created, acquired or otherwise has rights in.
n. “Parties” shall mean the parties to the Agreement collectively, and “Party” means either one of them individually, as the context requires.
o. “Personal Information” shall mean any personal information as defined in the Data Protection Act 2018 and GDPR relating to an identifiable, natural or juristic person, including information relating to race, gender, sex, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, religion, belief, disability, language, birth, education, identity number, online identifier or other particular assignment to a person, location information, telephone number, email, postal or street address, biometric information and financial, criminal or employment history as well as the personal opinions, views or preferences of the person correspondence sent by a person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence.
p. “Processing” shall mean any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including- the collection, receipt, recording, organizations, collation, storage, updating or modification, retrieval, alteration, consultation or use; dissemination by means of transmission, distribution or making available in any other form, or merging, linking, as well as restriction, degradation, erasure or destruction of information as set out in the Data Protection Act 2018 and the GDPR.
q. “Project” shall mean a project or other Customer engagement and its associated scope of work, as described in a Project Work Order.
r. “Project Work Order” shall mean the document signed by the Parties describing the details about a specific Project to be undertaken by the Parties including, without limitation, any additional terms, and conditions applicable to that Project.
s. “Project Manager” shall mean the individual appointed from time to time to be responsible for the overall planning, supervision, and control of a Project Work Order.
t. “Services” shall mean the services to be provided by the Parties in terms of the Projects as detailed in the Project Work Orders executed by the Parties from time to time.
u. “Service Provider” shall mean Mint.
v. “Signature Date” shall mean in respect the Agreement or any Project Work Order, the date that the last Party signs.
w. “Subcontractor” shall mean the Party designated as such in a Project Work Order.
x. “Service Manager” means one individual designated by each Party, to whom all communications will be addressed. Either Party may replace such individual appointed by that Party from time to time on reasonable prior notice to the other.
y. “LCIA” means the London Court of International Arbitration.
4 | Commencement and Duration
The Agreement and subsequent operation of the Terms and Conditions shall commence on the Effective Date and shall continue until the date of termination (if provided) by mutual written consent by the Parties or as otherwise provided in terms of the Agreement.
4.2 Specific Work Orders shall endure for the period set out therein. If a Work Order is silent about the duration thereof, it shall be deemed to be for an indefinite duration, subject to the termination provisions of the Agreement.
4.3 Both Parties shall have the right to terminate the Agreement and/or any Work Order on sixty (60) days written notice to the other Party without giving reasons for such termination and without incurring penalties of any nature whatsoever, provided that in the event of such termination, the cancelling Party shall be responsible to pay all fees payable as at the date of such termination.
4.4 The Parties agree that the Agreement and/or Work Orders shall be reviewed as needed and will such review be done in writing.
5 | Confidentiality
5.1 The Parties acknowledge that all material and information which has or will come into its possession in connection with the Agreement or the performance of the obligations hereunder consists of Confidential Information which, if disclosed to third parties, might be damaging.
5.2 The Parties agree and undertake-
a) not to use the Confidential Information for any purpose other than in connection with the Services and then on a need-to-know basis only.
b) not to use the Confidential Information, whether directly or indirectly, for its benefit.
c) To treat and safeguard Confidential Information as strictly private and confidential.
d) that it shall employ security measures necessary to detect and/or prevent unauthorised access to and/or disclosure of the Confidential Information.
e) except as permitted by the Agreement, not to use, disclose or divulge, directly or indirectly, the Confidential Information in any manner to any third Party for any reason or purpose whatsoever without the prior written consent of the other Party which consent may be withheld in the sole and absolute discretion.
f) to take all such steps as may be reasonably necessary to prevent Confidential Information from falling into the hands of unauthorised third Parties.
g) to restrict the dissemination of the Confidential Information to only those of its personnel who are actively involved in the Services, then only on a “need to know” basis and the Parties shall initiate, maintain, and monitor internal security procedures to prevent unauthorised disclosure.
h) to take all practical steps, both before and after disclosure, to impress upon its personnel who are given access to Confidential Information the secret and confidential nature thereof; and
i) whenever the consent or authority of the Party is required to disclose Confidential Information, the said consent or authority shall be in writing; and
j) it shall, on termination of the Agreement or on earlier demand by the Parties, cease the use of all Confidential Information and promptly return to the other Party all of the Party’s Confidential Information which is in physical form (including all copies) and shall destroy (to the extent reasonably practicable and legally permissible) any other records (including, without limitation, those in electronic, machine readable and hard copy form) as far as they contain Confidential Information.
5.3 The Parties agree that Information shall not be deemed Confidential Information where it:
a) is authorised to be disclosed by the Party to that extent of the authority given.
b) is in the public domain at the time of disclosure or which becomes a part of public domain after disclosure by publication or otherwise through no wrongful act of the Parties.
c) has been lawfully obtained without restriction from a third Party or Parties who are not in breach of any obligation of non-disclosure to the Party and its personnel.
d) is independently developed by the Party unless same forms part of the Services that are being developed in terms of the Agreement and/or a Work Order.
e) is disclosed in accordance with the requirements of any law or legal enactment of any competent governmental authority or in response to the lawful order of any competent Court or other lawful authority or constituted body having the legal power to require or demand such disclosure.
5.4 The Parties shall protect the Confidential Information in the manner, and with the endeavour, of a reasonable person protecting his or her own Confidential Information. In no event shall the Parties use less than reasonable efforts to protect the confidentiality of the Confidential Information.
5.5 The Parties may not utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever.
5.6 This clause shall remain valid and binding on the Parties notwithstanding any termination of the Agreement.
6 | Provision of the Services
6.1 Mint shall provide the service and perform its obligations in accordance with the terms and conditions of the Agreement and the Work Order.
6.2 The Customer shall, from the Effective Date, and on an ongoing and continuous basis throughout the Agreement, allocate and/or procure all necessary, appropriate, or required resources; and perform such other incidental and/or related services, functions, and responsibilities, as may be required for it to fully perform each Work Order in accordance with the Agreement and such Work Order.
6.3 Unless otherwise specified in a Work Order, service review meetings shall be convened and held to discuss performance against agreed Service Levels and to provide statistical information and feedback concerning reasons for non-conformance to the Service Levels.
6.4 In the event that either of the Parties determines that it is reasonably likely that it will not deliver all or any portion of its obligations in terms of the Agreement, at the times designated therein, the Parties will immediately advise the other and make every reasonable effort to obtain acknowledgement of the anticipated delay.
6.5 A Service compensation payment will be paid to Mint by the Customer where the Customer causes an unreasonable delay in proceeding with the Project, or in the event of delays caused with some other contractor employed by the Customer, or by reason of suspension of the Project by the Customer. The Service compensation payment will include all additional costs reasonably incurred by Mint as well as standing time for all personnel allocated by Mint to the Project and will be paid to Mint within 15 (fifteen) days of receipt of notice of such delay. Such costs will be actual and proven.
6.6 The Parties will meet at a mutually convenient time, to jointly develop a new alternative recovery plan or schedule with agreement on new dates for completion of the Services.
6.7 This clause excludes force majeure events.
7 | Performance of the Services
7.1 Mint shall employ suitably qualified, experienced and trained Personnel to provide the Services to the Customer in terms of the Agreement and/or a Work Order. Mint shall be entitled, in its discretion, to allocate Personnel in accordance with the technical or other skills and knowledge required. This discretion by Mint shall not negatively impact upon the provision of the Services.
7.2 Mint may substitute Personnel if necessary and will provide replacement Personnel of equivalent ability.
7.3 The Customer may, by giving no less than 48 (forty-eight) hours written notice thereof to Mint, require Mint to remove any member of its Personnel. This will be if, in the Customer’s reasonable opinion, the member is failing to perform their duties in a satisfactory manner. The Customer shall set out these reasons in writing, and Mint shall take such steps as may be necessary to give effect to such notice.
7.4 Unless specifically agreed otherwise between the Parties, Mint’s Personnel shall be subject to and work under the direction and control of Mint. Mint shall be exclusively responsible for taking disciplinary action against its Personnel in accordance with its own disciplinary code and counselling procedures.
8 | General Warranties
8.1 The Parties warrant, represent, and/or undertake that:
a) it has the authority to enter into and perform its obligations under the Agreement and/or Work Order.
b) The Agreement and/or Work Order shall, when executed, constitute valid and binding obligations.
c) The Agreement is executed by a duly authorised signatory.
d) It is not aware of anything that might or shall adversely affect its ability to perform its obligations under the Agreement and/or Work Order.
e) It shall ensure that all information supplied is true, accurate and complete in all respects.
8.2 Both Parties are not aware of any circumstances with may result in it:
a) commencing Business Rescue Proceedings based on it being Financially Distressed.
b) being deregistered or in the process of being deregistered in terms of the UK Companies Act 2006.
c) being placed in provisional or final sequestration or liquidation in terms of the UK Insolvency Act .
d) being subject to a debt review process in terms of the laws of England and Wales.
8.3 In contemplation of 8.1, both parties undertake to notify the other in writing, immediately upon the board either becoming aware of it being Financially Distressed or when the board of the Party contemplates, considers, discusses, or proposes to do any of the above steps or becomes aware of any party proposing to take or taking steps to apply to court for any of the above proceedings.
8.4 The written notice as referred to in 9.3 above, shall set out the full details of the Financial Distress or the actual or proposed activity or event.
8.5 The Parties further undertake that the performance of its obligations under the Agreement and/or a Work Order, shall fully comply with any and all applicable laws.
a) it shall at all times endeavour to reasonably perform its obligations in a manner that does not breach, nor cause a breach to the applicable Party’s policies.
b) it shall not introduce any Viruses into the IT Environment.
8.6 The Parties have entered into the Agreement on the strength of the Warranties, and on the basis that such warranties will be correct as at the Effective Date hereof and for the duration of the Agreement.
8.7 A breach of any warranty as set out in this clause, shall constitute a material breach of the Agreement and either of the Parties will be entitled to terminate the Agreement and/or Work Order forthwith, without prejudice to any rights, and the Parties hereby indemnify the other, without limitation, for any losses which arise as a result thereof.
9 | Warranties for Developed and Licenced Software
9.1 In respect of Developed and Licensed Software, the Customer is deemed to have accepted software on successful deployment of software.
9.2 Where the Customer has a licence to Software, such licence is granted on a non-exclusive and non-transferable basis. This is because the Software is licensed by a third Party and does Mint as a Service Provider offer the Customer software services that display, access, or otherwise interact with the third Party’s software products.
9.3 Mint shall under no circumstances be liable for any damages arising from:
a) the Customer effecting any changes, modifications or enhancements to the Services, Developed Software and/or Software without Mint’s prior written consent;
b) force majeure events.
c) operator error on the part of the Customer, third Party software or software supplied to or obtained by the Customer from any entity other than Mint except at Mint’s election; or
d) the intentional or negligent act or omission of any person who is not a member of the Customer’s staff or is not under the Customer’s control.
9.4 It is understood and acknowledged by the Parties that Mint is not able to warrant the following:
a) That the Developed and Licensed Software will meet the Customer’s requirements for other purposes than what was agreed upon in the initial configuration scope and Proposal.
b) that the Developed and Licensed Software will operate in accordance with other customisations and integrations than what was agreed upon in the initial configuration scope and Proposal.
c) Whilst Mint undertakes to reasonably attend to attend to requests to correct software errors (both during and after the warranty period), it cannot guarantee that the operation of the Developed and Licensed Software will be uninterrupted or error-free or that all the Developed and Licensed Software errors identified after the Warranty Period will be corrected.
d) Any errors that require correction after the Warranty Period, will be handled in accordance with Mint’s SLA (Service Level Agreement) policy and the Customer agrees that it has a duty to inform Mint of any errors that it requires Mint to correct.
9.5 Other than the warranty provided by Mint for the Warranty Period, Mint disclaims all other warranties with respect to the Services, Software, and Developed Software, whether expressed or implied.
10 | Risk, Ownership and License Rights
10.1 Mint shall retain all pre-existing rights of ownership in and to the Software, for the entire duration of the Agreement.
10.2 The Customer shall own all rights in and to the Developed Software.
10.4 Both Parties shall for the continued duration of the Agreement have and maintain in force sufficient insurance to cover both its obligations and liabilities under the Agreement.
11 | Fees and Payment
11.1 Payment terms are strictly 30 days from date of invoice, unless otherwise agreed upon in writing, and the Customer shall make payment within 30 days from date thereof, unless otherwise agreed upon.
11.2 Unless otherwise specified, all fees and expenses set out are exclusive of Value Added Tax (VAT) and other statutory fees and charges. The Customer shall pay all VAT and any other such fees and charges that may be payable on such fees and expenses.
11.3 If any work is subject to licensing that comprises foreign exchange rates or is based on foreign third-party licenses, Mint has the right to re-negotiate prices with Customers should the exchange rate increase by more than 10% of the agreed amount.
11.4 All amounts which are required to be paid to Mint and which are not paid on the due date shall bear interest at the rate as prescribed in terms by the Bank of England. The said interest shall be calculated monthly in arrears from the due date of payment and shall be compounded.
11.5 Mint may suspend any or all of the Services or supply of Products on seven (7) days written notice to Customer if any payment is overdue by more than seven (7) days and may require payment in advance for future supply of Products or provision of Services.
11.6 Mint shall issue the Customer with the relevant credit and debit notes. The credit and debit notes will contain all the particulars contemplated, as the case may be.
12 | Travel
12.1 Travel charges are calculated based on the return distance from the office of Mint to the agreed locations specified by the Customer as per the expense sheet.
12.2 Any travel, accommodation (minimum three-star equivalent), material and incidental expenses reasonably and necessarily incurred by Mint, are not included in the Agreement price, and shall be paid by the Customer. If requested by the Customer, Mint shall obtain prior approval for travel, material, and incidental expenses.
12.3 An overnight subsistence allowance, per consultant, will be charged for out-of-town assignments within the borders of the United Kingdom. For out-of-town assignments outside the orders of the United Kingdom, an overnight subsistence allowance per night, per consultant, will be charged.
13 | Indemnity
13.1 The Customer indemnifies Mint and its directors, officers, employees, contractors or agents against damage cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the use of Mint services, Information, and/or products that is based on the Customer or its Representatives’ conduct, action or inaction.
13.2 It is hereby agreed that each Party will indemnify, defend, and hold harmless the other and its directors, officers, employees, contractors or agents and sub-contractors, against any and all Data Subject and third-Party claims, including but not limited to any loss, damages, penalties, fines, or other actions (including legal fees) related to a failure by the Processor or Sub-Processor to comply with the Data Protection Act 2018 and the GDPR.
13.3 The Parties undertake to notify the other immediately upon any request from a Data Subject which necessitates that the Party needs to cease processing certain Personal Information, if one of the Parties is obligated to assist the other in enforcing a Data Subject’s rights in terms of the Data Protection Act 2018 or other applicable laws, or any other instance that would result in the Parties no longer being authorised to process certain data.
14 | Limitation of Liability
14.1 The aggregate liability of each Party to the other, whether in contract, delict or otherwise, shall not exceed the total amount payable by the Customer in terms of the Agreement.
14.2 Both Parties shall not be liable, whether in contract, delict or otherwise, for any indirect or consequential damages including, but not limited to, loss of data, loss of profits, loss of custom, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract or otherwise.
14.3 Nothing in the Agreement shall exclude or limit either Party’s liability in relation to:
a) death or personal injury caused by negligence or wilful or reckless misconduct of that Party.
b) any fraud or fraudulent misrepresentation of that Party or any other criminal act which leads to such Party suffering a Loss.
c) any liability which cannot be excluded by law by that Party; and/or clauses that relate to Indemnity, Intellectual Property Rights and Confidentiality.
15 |Copyright and Intellectual Property Rights
15.1 All Intellectual Property belonging to either of the Parties shall remain the property of such Party and the other Party will not acquire any right, title, or interest in and to such Intellectual Property.
15.2 Where the Customer has a licence to use Products, such license is granted on a non-exclusive and non-transferable basis.
15.3 Neither Party shall in any manner alter, remove, or affect the display of the respective Intellectual Property rights notices (and disclaimers) of the other Party and/or their vendors and licensors without the prior written approval of the other Party, and their vendors or licensors where applicable; and
15.4 Neither Party may use the other Party’s Intellectual Property, trade names, logos or any derivative or component thereof without the prior written approval of the other Party.
16 | Intellectual Property Infringement
16.1 If the Services or any component thereof becomes, or in Mint’s reasonable opinion is likely to become, the subject of an Intellectual Property infringement claim or proceeding, Mint shall use reasonable efforts to secure the right to continue providing the Services and/or for the Customer to continue using the Services. In the event that despite reasonable efforts, this cannot be accomplished by Mint, Mint shall discontinue the affected part of the Services and Mint’s charges shall be equitably reduced to reflect the reduction in the value of the Services to the Customer, provided that the aforementioned remedies shall be the Customer’s sole remedies in respect of any such intellectual property infringement claim.
16.2 Mint shall, in the case where an Intellectual Property infringement claim is brought against the Customer, defend such claim, at its cost, provided that in respect of all such claims, the Customer:
a) gives prompt notice to Mint of such claim and Mint controls the defence thereof.
b) takes all reasonable steps to mitigate any loss or liability in respect of the claim; and
c) does not compromise or settle the claim in any way without Mint’s prior written consent.
17 | Data usage and protection
17.1 Mint and the Customer shall comply with all Data use and Data protection requirements as may be applicable to the engagement between the Parties, as dictated by Mint’s Data protection policies in force from time to time, and any applicable legislative requirements and the Data use and Data protection requirements as specified in the Project Work Orders hereto.
17.2 The Parties warrant that it will Process Personal Information submitted to it by the other strictly within the bounds of the instructions received from the Customer.
17.3 The Parties undertake to notify each other immediately of:
a) any request from a Data Subject which results in a Party’s obligation to cease Processing certain Personal Information.
b) any instance in which one of the Parties is obligated to assist the other with enforcing a Data Subject’s rights as set out in the Data Protection Act 2018 or any other Applicable Laws.
c) any instance that would render either of the Parties unauthorised to continue Processing certain Personal Information of Data Subjects.
17.4 The Customer agrees to indemnify and hold harmless Mint and its directors, officers, employees, contractors or agents and sub-contractors from any and all third-party claims, liabilities, against loss, damages, costs or expenses (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to any unauthorised use and processing of Personal Information by the Customer as defined in any applicable data protection law of any third party.
18 | Appointment of Sub-Contractors
18.1 It is agreed by the Parties that Mint will obtain prior written approval before engaging the services of any third-Party sub-contractor to assist in providing the contracted services. Such consent will not be unreasonably withheld.
18.2 It is understood that such a Sub-Processor may not in turn, use another third-Party to process Personal Information. If it might be necessary for such an appointment, this will be addressed and agreed upon in writing between the Parties prior to such an appointment being made.
18.3 The Parties agree that, due to the confidential nature of the Personal Information, a need exists for back-to-back contracts being concluded between the Customer, Mint, and any operator sub-contractors and that these Processor and Sub-Processor Agreements will mirror the contract between the Parties and thus adequately address Data Protection Act compliance.
19 | Breach
19.1 If a Party (“Defaulting Party”) commits any breach of the Agreement and fails to remedy such breach within 30 (thirty) business days (“Notice Period”) of written notice requiring the breach to be remedied, then the Party giving the notice (“Aggrieved Party”) will be entitled, at its option:
a) to claim immediate specific performance of any of the Defaulting Party’s obligations under the Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party’s obligations; or
b) to cancel the Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. A breach will be deemed to be a material breach if:
i) it is capable of being remedied, but is not so remedied within the Notice Period; or
ii) it is incapable of being remedied or is not remedied within the Notice Period.
c) If any of the Parties to the Agreement become aware of a possible condition or event which could cause a material breach, prompt written notice will be given to the other Party no more than 7 (seven) business days after becoming aware of this condition and/or event and will both Parties use their reasonable best efforts to prevent such a potential breach or remedy the condition or event.
d) The Aggrieved Party’s remedies in terms of this clause are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law.
20 | Force Majure
20.1 Neither Mint nor the Customer will be liable to the other for any delay or failure to fulfil their obligations under the Agreement to the extent that any such delay or failure arises from causes beyond their reasonable control, including but not limited to an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war (declared or undeclared), civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature.
20.2 Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (thirty) days the Parties will consult with each other regarding the future implementation of the Agreement. If no mutually acceptable arrangement is arrived at within a period of 7 (seven) days thereafter, either Party will be entitled to terminate the Agreement forthwith on written notice.
21 | Non-Solicitation
Neither Party shall during the currency of the Agreement, or for a period of 12 (twelve) calendar months following termination, directly or indirectly solicit, offer employment to, employ or contract in any manner with any personnel of the other Party who were involved in the implementation or execution of the Agreement. In the event of a breach of this clause, the breaching Party shall pay to the other Party, as liquidated damages, a sum equal to the gross salary to be paid to the Personnel for the first 12 (twelve) months. This remedy is in addition to any other remedies available to the other Party.
22 | Dispute Resolution
22.1 In the event of there being any dispute or difference between the Parties arising out of the Agreement which cannot be resolved amicably by the Parties, the said dispute or difference shall, on written demand by either Party be submitted to arbitration in Johannesburg in accordance with rules of LCIA, which arbitration shall be administered by LCIA.
22.2 Should LCIA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the LCIA rules for commercial arbitration (as last applied by LCIA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration. In this instance, any Party to the dispute shall be entitled to forthwith call upon the chairperson of the United Kingdom Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
22.3 Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the LCIA rules for commercial arbitration.
22.4 Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
23 | Applicable Law and Jurisdiction
23.1 The Agreement will in all respects be governed by and construed under the laws of England and Wales.
23.2 The Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of England and Wales in any dispute arising from or in connection with the Agreement.
24 | General
24.1 The Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term, or condition relating to the subject matter of the Agreement not incorporated herein, shall be binding upon either of the Parties.
24.2 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of the Agreement will be of any force or effect unless in writing and signed by both the Parties.
24.3 No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless in writing and signed by the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. Failure or delay on the part of either Party in exercising any right, power or privilege hereunder 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.
24.4 All provisions and the various clauses of the Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.
24.5 Any provision or clause of the 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 the Agreement shall remain of full force and effect.
24.6 Neither the Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated, or assigned by either Party without the prior written consent of the other Party, save as otherwise provided herein.
24.7 Any consent or approval required to be given by either Party in terms of the Agreement will, unless specifically otherwise stated, not be unreasonably withheld.
25 | Cost
Each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation, and implementation of the Agreement
26 | Notices
The Parties select as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under the Agreement, the said physical addresses as well as the following telefax numbers: –
In the case of Mint to:
Postal and Physical Address:
38-42 Newport Street,
Swindon, Wiltshire, SN1 3DR
And shall be marked for the attention of the CEO, currently Carel Du Toit
Provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or telefax number by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
All notices to be given in terms of the Agreement will be given in writing, in English, and will:
If delivered after business hours or on a day which is not a business day, be presumed to have been received on the following business day.
The Parties record that whilst they may correspond via email during the currency of the Agreement for operational reasons, no formal notice required in terms of the Agreement, nor any amendment of or variation to the Agreement may be given or concluded via email, unless otherwise agreed in writing.