SECTION B – SALIENT TERMS
- COMMENCEMENT AND DURATION.. 8
- ACKNOWLEDGEMENTS BY THE CONSUMER.. 8
- ACKNOWLEDGEMENTS BY ROBIN BANKS & ASSOCIATES. 9
- PAYMENTS 9
- INSTALMENTS 11
- CANCELLATIONS. 12
- ASSIGNMENT. 13
- CONFIDENTIALITY AND SECRECY.. 13
- WARRANTIES. 14
- LIMITATION OF LIABILITY.. 14
- INDEMNITY.. 15
- INTELLECTUAL PROPERTY. 15
- DETERMINATION OF DISPUTES. 16
- BREACH [RBA to confirm days]. 16
- GOVERNING LAW… 16
- PROTECTION OF PERSONAL INFORMATION.. 17
- SUPERSEDENCE. 19
- ENTIRE AGREEMENT. 19
- VARIATION.. 19
- COSTS. 20
- GOOD FAITH.. 20
- POWER OF ATTORNEY. 20
- JURISDICTION, CHOICE OF LAW, CHOICE OF COURT. 20
- CONVERSION TO COURT ORDER. 21
- CONVERSION TO ARBITRATION AWARD.. 21
- RELAXATION.. 21
- FORCE MAJEURE. 22
- TRANSFERRING TICKETS. 23
- SEVERABILITY.. 23
- GENERAL. 23
- CREDIT CHECK. 24
- DOMICILIUM CITANDI ET EXECUTANDI 24
- COUNTERPARTS. 26
- SIGNATURES. 26
- These Terms and Conditions are intended to make you aware of your legal rights and responsibilities with respect to your access to and use of the Robin Banks and Associates seminar services (the “Services”).
- By accessing and offering to make use of Robin Banks & Associates seminar services, you are agreeing to these Terms and Conditions, and thus concluding a legally binding contract with Robin Banks & Associates and/or its affiliates (hereinafter “RBA”). You may not use the seminar services if you do not accept the Terms and Conditions. By accepting these Terms and Conditions, you acknowledge and agree that you have read and understood all Terms and Conditions contained in this Agreement.
In this Agreement, clause headings are for convenience and shall not be used in its interpretation, and unless the context indicates the contrary intention:
- any expression which denotes (i) the singular shall include the plural and vice versa; (ii) any gender includes the other gender; (iii) a person includes an artificial person or juristic person and vice versa;
- any reference to any legislation is to such legislation or enactment as at the date of signature of the Agreement by the last signing of the parties and as amended or re-enacted from time to time;
- if any provision in a definition is a substantive provision conferring any right or imposing any obligation on either Party, then notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in this Agreement;
- 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;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- the term ” company” and shall bear the meaning assigned to it in the Companies Act, No. 61 of 1973; and Close Corporations as provided for in the Close Corporation Act, No. 69 of 1984
- 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.
In this Agreement, the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
- “Agreement” means this Agreement being the Robin Banks and Associates (RBA) Terms and Conditions of Use.
- “Authority and Mandate” shall mean the Agreement signed by the Consumer and authorising RBA to issue and deliver payment instructions to the bank for release of monies payable as per the Consumer obligation to RBA.
- “Confidential Information” means all confidential information, including but not limited to the Intellectual Property, print-outs, manuals, software, applications, source codes, computer discs, magnetic tapes, samples and any data collected and stored in the RBA data bases from time to time;
- “Consent” means any freely-given, specific and informed expression of will whereby Consumer(s) agree to the processing of personal information relating to them;
- “Consumer Credit Information” shall bear the meaning set out in Section 70 (1) of the National Credit Act No. 34 of 2005;
- “Intellectual Property” means all intellectual property of whatever nature owned and/or controlled by either Party, including without limiting the generality of the aforegoing, that Parties right, title and interest in and to all trade marks, technology, software, applications, web pages (including the “look and feel” thereof), standards, trade secrets, logos, systems, methods (including all delivery mechanisms and scoring processes), procedures, processes, the design, layout, “look and feel” and “get up” of the Reports, trade names, domain names, styles, insignias, compilations, designs, patents, and copyright whether registered or not;
- “Parties” shall mean Robin Banks & Associates and the seminar services Consumer;
- “Regulations” shall mean the National Credit Regulations, published in Government Gazette No. 8477, and Notice 28864; and such further Regulations that may be issued from time to time.
- “Reports” means any data or information or response provided to the Consumer which is generated pursuant to the use by the Consumer of the Services set out in this Agreement, as amended from time to time;
- “Services” shall mean the seminar services selected by the Consumer which are to be rendered by RBA to the Consumer, as amended from time to time;
- “the Act” refers to the following Acts:
- the Copyright Act, No. 98 of 1978;
- the Companies Act, No. 71 of 2008;
- the Close Corporation Act, No. 69 of 1984;
- the National Credit Act, No. 34 of 2005, as amended from time to time.
- These Acts and the term Act will be used in context with regards to the abovementioned Acts in the preceding paragraphs.
- “the Consumer” means the person who is a consumer of the seminar services offered by Robin Banks & Associates.
- “Robin Banks & Associates CC “ means Robin Banks & Associates Close Corporation, with Registration Number: 2000/060685/23, a company incorporated in accordance with the laws of the Republic of South Africa, with its chosen domicilium citandi et executandi at, 19 Geers Avenue, Greenside, Johannesburg, Gauteng, 2183.
SECTION B – SALIENT TERMS
- Access to the Robin Banks & Associates seminar services shall commence upon acceptance of the Robin Banks & Associates Terms and Conditions of Use, and shall remain valid for that seminar session only.
- Notwithstanding any other provision of this Agreement, this Agreement shall terminate and be of no further force and effect should RBA be prevented by any law from continuing to carry out its obligations in terms of this Agreement.
The Consumer acknowledges and agrees:
- The Consumer agrees to purchase from Robin Banks & Associates CC (hereafter referred to as RBA) the seminar services offered as stipulated on this Agreement.
- The Consumer hereby acknowledges and agrees to have read and understood all the Terms and Conditions contained in this Agreement, and agrees to be bound by the provisions of these Terms and Conditions.
- He/she will at all times comply with the requirements of all applicable legislation(to the extent that it is relevant to the Consumer) for the receipt, compilation and reporting of information, requested and received from RBA.
- He/she shall for the duration of this Agreement comply with all applicable legislation and regulationsin as far as it relates to the request and usage of the seminar Services.
- RBA reserves the right to take whatever reasonable action it may deem necessary at any time to preserve the security and reliable operation of its seminar infrastructure and the Consumer undertakes that he/she will not do or permit anything to be done which will compromise RBA security.
- The Consumer specifically acknowledges that they have read and accept the Terms and Conditions of RBA and agree to be bound thereby.
- RBA has taken all reasonable steps to ensure that the information provided by the data aggregators falls outside the scope of the National Credit Act 34 of 2005 and can confirm that the information provided is not considered by the National Credit Regulator to be Consumer Credit Information.
- RBA acknowledges and agrees, that it will, at all times, comply with the requirements of the National Credit Act 34 of 2005 and any other applicable legislation (to the extent that it is relevant to the Service(s) it provides from time to time.
- RBA shall ensure that the Services provided in terms of this Agreement are in compliance with any law or legislation applicable to its industry.
- The cost for access to and use of the seminar services is as follows:
- Single ticket: R7 500.00
- Double ticket R9 997.00 [Client to confirm]
(once off payments)
- Should the Consumer wish to enter into a payment plan with RBA, the arrangement will be structured as follows:
- Double ticket: R10 497.00
- Deposit R3 499.00 [RBA to confirm]
- The above prices include 15% VAT. The FULL PAYMENT/ DEPOSIT PAYMENT is DUE IMMEDIATELY in order to secure this event price. [RBA to confirm]
The provisions in Paragraphs 7.1, 7.2 and 7.3 above will vary from time to time.
- This signed Authority and Mandate refers to the Agreement between RBA and the Consumer as at deemed date of signature hereof.
- The Consumer hereby authorizes RBA to issue and deliver payment instructions to the bank for collection against his/her bank account at his/her bank (or any other bank or branch to which he/she may transfer his/her account), on condition that the sum of such payment instructions will never exceed Consumer’s obligations as agreed upon in this Agreement, and commencing on the agreed date and continuing until this Authority and Mandate is terminated by mutual agreement between the parties
- The individual payment instructions thus authorized to be issued must be issued and delivered monthly, on or after the dates when the obligation in terms of the Agreement is due and the amount of each individual payment instruction may not be more or less than the obligation due.
- In the event that the payment date falls on a Saturday, Sunday or recognized South African public holiday, the payment day will automatically be the very next ordinary business day. Further, if there are insufficient funds in the nominated account to meet the obligation, the Consumer authorizes RBA to track his/her account and re-present the instruction for payment as soon as sufficient funds are available in the account.
- The Consumer understands that the withdrawals hereby authorized will be processed through a computerized system provided by the South African Banks and that details of each withdrawal will be printed on his/her bank statement. Each transaction will contain a number, which must be included in the said payment instruction and if provided to the Consumer should enable him/her to identify the Agreement. A payment reference is added to this form before the issuing of any payment instruction.
- The Consumer acknowledges that if they pay in installments, an additional fee of R550 (Five Hundred and Fifty) may be incurred in the fees due and/or owing. All payments will be made without set off, deduction or counterclaim unless otherwise agreed upon with the Consumer.
- Should RBA not receive payment of the installment sum by the Installment Payment Date as agreed, then all monies owing to RBA shall become due and payable, and must immediately be paid to RBA without set off or deduction or counterclaim and without need for further The Consumer understands that his/her bank statement will reflect the abbreviated name as registered with the bank: ROBIN BANK.
- The Consumer acknowledges that his/her abovementioned bank shall treat all payment instructions issued by RBA as if the instructions had been issued by the Consumer personally.
- Should the Consumer wish to cancel this Agreement, he/she agrees to notify the RBA in writing, the cancellation shall be treated as set out below, and such notification to be sent via email to email@example.com .
- In the event of a seminar needing to be postponed and or cancelled, the seminar will automatically be converted to an online seminar at no extra cost to the Consumer. At the sole discretion of RBA, a future seminar may be held face to face, live and in person at a reduced and / or special rate to the Consumer [Robin and Yvette please confirm if this is in order]. This face to face, live and in person seminar is at the sole discretion of RBA. This face to face, live and in person seminar is at the sole discretion of RBA. In the event of the seminar being converted, and the Consumer wishes to cancel, a 25% cancellation fee will be levied. In the event of cancellation, the Consumer indemnifies RBA for any losses, damages or liabilities he/she may have incurred or suffered as a result of such a cancellation.
- With reference to Paragraph 9.2 above, in the event of the seminar being converted to an online seminar, due written notification will be given to the Consumer. In the event of the cancellation, RBA will provide written notification for any such cancellation. The Consumer hereby agrees that he/she will not be entitled to claim any other refund, costs, expenses, losses, damages or liabilities he/she may have incurred or suffered as a result of such a cancellation.
- Should the Consumer notify RBA in writing, by delivering a written notice or sending an email to firstname.lastname@example.org, within 5 (Five) business days (“Cooling Off Period”), that they no longer wish to receive the seminar services, then he/she shall be entitled to a refund of 100% of the monies paid under this Agreement. This is subject to the notice of cancellation having been received and acknowledged by RBA within the stipulated period.
- 90 days before seminar commencement = 100%
- 60 days before seminar commencement = 75%
- 30 days before seminar commencement = 50%
- 14 days before seminar commencement = 25%
- 7 days before seminar commencement = No ReFund
- The Consumer will not be entitled to any refunds for late arrival, non-attendance of or withdrawal from the seminar services or for any reasons whatsoever, outside the 5-Day Cooling Off Period.
- The Consumer will be allowed to transfer their attendance to the next seminar service, should it be available.
RBA confirms that, from time to time, it utilizes the services of third-party vendors to assist and facilitate with various functionalities pertaining to its business. These terms and conditions are of application to any service provider acting for and on behalf of RBA.
The Parties agree and acknowledge that:
- The Parties shall keep and maintain as strictly confidential all the Intellectual Property and Confidential Information furnished to it pursuant to this Agreement;
- The Parties shall use their utmost efforts and diligence to guard and protect each other’s Intellectual Property and Confidential Information and shall exercise reasonable care in restricting access to the Confidential Information of each.
- The Parties warrant that:
- each possesses full power and authority to enter into this Agreement;
- this Agreement shall be binding upon them in accordance with its Terms and Conditions; and
- by entering into of this Agreement they agree to be bound by its Terms and Conditions.
- Save as specifically set out herein, RBA make no representations and give no warranties and/or guarantees of whatever nature, whether express, implied in law, or residual, in respect of this Agreement, the Services and/or seminar material, as the case may be, or any part thereof.
- RBA shall not be liable for any actual or contingent loss, liability, expense, costs (including legal costs on the scale as between attorney and own client and any additional legal costs), or damage of whatsoever nature (whether direct, indirect, consequential or otherwise) suffered by the Consumer as a result of, or which may be attributable to or caused by –
- the breach by the Consumer of any of his/her obligations as set out in the Agreement;
- any mistake, error or omission in the Information, including mistakes, errors and omissions originating from information submitted to RBA, provided that the error and/or mistake is not as a result of RBA’s gross negligence or wilful misconduct;
- any delay or failure in delivering or in any manner communicating or making available the information to the Consumer , where such failure is not reasonably foreseeable by RBA.
- an event of force majeure as contemplated in Clause 30 and/or
- the downtime of any telecommunications line and/or infrastructure and/or facilities.
Without prejudice to any of the rights of the Consumer at law or in terms of this Agreement, the Consumer agrees to indemnify RBA against all actual or contingent losses, liabilities, damages, costs (including legal costs on the scale as between attorney and own client and any additional legal costs) and expenses of any nature whatsoever which they may suffer or incur as a result of any act or omission (including the announcement made by government, from time to time, on adjustments in Covid 19 Lockdown Regulations), in carrying out its obligations under this Agreement; or any other relevant statutory provision applicable.
- All rights on seminar material and recordings are reserved. No part of the seminar material or recordings may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of RBA.
- In the event of there being a dispute with regards to the intellectual property, the Alternate Dispute Resolution (ADR) mechanism will be duly utilised.
- The parties to this Agreement agree that any dispute arising from this Agreement will be resolved in accordance with the terms set out in Annexure A
- The said ADR clause shall survive the termination of this Agreement.
- This clause is severable from the rest of this Agreement and shall, notwithstanding the termination of this Agreement, remain in full force and effect.
- The above clause shall not preclude any Party from approaching the Courts of South Africa for appropriate urgent interim relief.
- Should either party breach any provision of this Agreement:
- The “Defaulting party” shall remedy the failure within 7 (seven) days after receiving notice to do so, failing which the matter may be referred to Arbitration.
This Agreement (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the parties in terms of and arising out of the conclusion, breach and termination of the provisions of this Agreement) shall be interpreted and governed in all respects by the laws of the Republic of South Africa.
- It is recorded that, pursuant to its obligations under this Agreement, RBA will process Personal Information of consumers (i) in connection with and for the purposes of the provision of the seminar services and (ii) strictly in accordance with the processing limitations set out herein.
- RBA shall treat the Personal Information that comes to its knowledge or into its possession as confidential and shall not disclose it without the prior written consent of the Consumer, unless required to do so by law.
- RBA acknowledges and agrees that the Consumer retains all rights, title and interest in and to the Personal Information and that the Personal Information shall constitute the Consumer’s Confidential Information.
- Unless required by law, RBA shall process the Personal Information only:
- In compliance with this Agreement and;
- For the purposes connected with the provisions of the seminar services or as specifically authorised by the Consumer.
- RBA shall secure the integrity and confidentiality of Personal Information provided by the Consumer by taking appropriate, reasonable technical and organisational measures to prevent:
- loss of, damage to or unauthorised destruction of Personal Information;
- unlawful access to or processing of Personal Information and;
- RBA acknowledges the Consumer’s technical and organisational measures to comply with POPIA, and RBA agrees to process Personal Information in accordance with these measures at all times.
- RBA shall notify the Consumer in writing immediately if there has been a suspected security compromise.
- RBA shall, as and when required by the Consumer on written request, destroy all such Personal Information and furnish the Consumer with confirmation to the effect that the same has been destroyed, and will not process the Personal Information any further.
- RBA shall ensure confidentiality of information provided to it and agrees to hold it in strict confidence.
- RBA undertakes to comply with the requirements of the Protection of Personal Information Act 4 of 2013 with regards to any personal information provided to RBA or obtained by RBA through the relationship with the Consumer.
- This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
- Further to this, in the event there being a situation created of a potential conflict of laws which may result in a legal absurdity, the matter will be resolved by the Arbitration Paragraph at Annexure A
- ENTIRE AGREEMENT
- If any provision of this Agreement, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- This Agreement constitutes the entire Agreement between the Parties as to the subject matter hereof and no undertakings, agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any rights arising from this Agreement, or its breach or termination shall be of any force and effect unless recorded into writing and signed by both Parties or on behalf of both Parties.
Each Party shall bear its own costs incurred in the negotiation, preparation, and finalisation of this Agreement and its annexures.
- GOOD FAITH
- Both Parties undertake to perform their obligations under this Agreement in the utmost of good faith.
- In the implementation of this Agreement and in all further dealings with each other, the Parties and their Related Parties undertake to observe the utmost good faith as set out at 1 above, and to ensure that all Parties give effect to the intent and purpose of the Agreement, in line with the utmost of good faith.
- The Parties shall notify one another as soon as they become aware of any inconsistencies and / or ambiguities in or between the documents making up the Agreement.
The Parties hereby formally nominate Rurik McKaiser Attorneys Incorporated with the power of attorney to complete all of the necessary legal documents, and administrative processes to ensure that all of the terms and conditions of this agreement are appropriately executed upon, in line with the mandate of Rurik McKaiser Attorneys Incorporated or its nominee.
- Subject to Clause 16 above, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court and Magistrate’s Court of the Republic of South Africa for the purpose of all or any legal proceedings arising from or concerning this Agreement.
- Paragraph 26.1 above has specific reference to urgent remedies being sought as set out in Paragraph 16
- All disputes will be resolved as per the Alternative Dispute Resolution set out at Annexure A attached hereto and further confirmed as per Paragraph 16 above.
Should either Party commit a material breach of any provision of this Agreement within 7 (seven) days of receiving written notice from the aggrieved Party requiring it to remedy such breach, then such aggrieved Party shall be entitled, without prejudice of its rights in law, to approach the High Court of the Republic of South Africa to have this Agreement or relevant Paragraph converted to an Order of Court.
- Should either Party commit a material breach of any provision of this Agreement within 7 (seven) days of receiving written notice from the aggrieved Party requiring it to remedy such breach, then such aggrieved Party shall be entitled, without prejudice of its rights in law, to convert this Agreement or relevant paragraph to an Arbitration Award as per Paragraph 4 of the ADR attached as Annexure A to this Agreement.
No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Party/ies in respect of the performance of any obligation hereunder or the enforcement of any right arising from this Agreement and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or stop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
- If RBA is prevented from carrying out any of its obligations as a result of an act of God, strikes, fire, riot, war (whether declared or not) embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, any court order, any requirements of any authority, or other competent local authority, the downtime of any communication lines, or any other circumstances whatsoever which are not within the reasonable control of RBA, then RBA shall be deemed to have been released from its obligations to perform under this Agreement to the extent that, and for so long as it is so prevented from performing, this Agreement will be deemed to have been suspended to such extent and for the period concerned.
- At the sole discretion of RBA, the force majeure event will be mitigated in the manner in which the trainings will automatically become online trainings. This online training will be an automatic provision of this Agreement and the force majeure mechanism. This online training will be at no additional cost to the Consumer.
- Should the Consumer choose to cancel the training by virtue of the operation of paragraph 30, specifically paragraph 30.2 above, the cancellation provisions at paragraph 9 will be of application mutatis mutandis. At the sole discretion of RBA, a future face to face training may be offered to the Consumer at a reduced and / or special rate for Consumers that have been impacted by the provisions of this force majeure paragraph.
- The Parties shall not cede any of its rights or delegate any of its obligations under this Agreement or otherwise assign this Agreement to any third party without the prior written approval of either Party, which will not be unreasonably withheld.
- In the event that the Consumer is unable to attend the seminar already booked and paid for, they may transfer their ticket to a nominated new attendee, provided that RBA has been notified in writing. In such notification full details, including contact details, of the new attendee must be provided to RBA.
- In the event of a written arrangement between the Consumer and RBA to pay in instalments, the Consumer shall still be liable for the remaining instalments due to RBA.
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 annexure 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.
- This Agreement constitutes the sole record of the Agreement between the Parties. This Agreement supersedes and overrides any other terms and conditions (whether written or oral) which may have been concluded between RBA and the Consumer. No party shall be bound by any representation, warranty, promise or the like not recorded herein.
- In the event of a conflict between the provisions of the Agreement and the National Credit Act, as read with the Regulations, the provisions of the National Credit Act as read with the Regulations will prevail.
- No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
- In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any of the annexures hereto, as they may be revised from time to time, the provisions of this Agreement shall prevail.
The Consumer hereby consents to RBA transmitting his/her details to credit bureaus for how he/she and his/her company have performed in meeting the obligations in terms of this Agreement, and in the event that the Consumer fails to meet his/her obligations, RBA may record the Consumer’s non-performance with the applicable credit bureau.
- Deemed Place of Signature
The Parties agree that this agreement, notwithstanding the Parties’ location at the time of signature, is deemed to have been signed by the Parties at 19 Geers Avenue, Greenside, Johannesburg, Gauteng, 2193.
- Any notice in terms of this Agreement may be hand delivered to the physical addresses of the Parties, in which event proof of acknowledgment shall be endorsed upon a copy of the notice together with the name of the recipient and date of receipt or may be sent by registered post to the nominated postal addresses of the Parties, in which event proof of postage issued by the relevant postal authority will serve as proof.
- ROBIN BANKS
Physical Address: Rhine Road,
Cape Town, 8005
E-mail Address: Robin@robinbanks.co.za
Phone Number: 083 412 8050
And 19 Geers Avenue
E-mail Address: email@example.com
And the future address of Rurik McKaiser Attorneys Inc.
- [Consumer name and Surname]
E-mail Address: [Consumer email address]
Phone Number: [Consumer mobile number]
And / or the future address of Rurik McKaiser Attorneys Inc.
- This Agreement may be signed in separate counterparts, each of which shall be deemed to be an original and all or which taken together shall constitute one and the same instrument. A counterpart of this Agreement in fax form or scanned and transmitted electronically shall be conclusive evidence of the original signature and shall be effective in law as the counterparts in original form showing the original signatures.
The Parties agree that this Agreement, notwithstanding the Parties’ location at the time of signature, is deemed to have been signed by the Parties at 19 Geers Avenue, Greenside, Johannesburg, Gauteng, 2193.
Thus, done and signed on this the ____ day of _________ 2021.
Thus, done and signed on this the ____ day of _________ 2021.
SECTION D – ANNEXURES
- DISPUTE RESOLUTION
- Each Party shall be entitled to require the other Party to give reasonable security for the payment of such costs prior to taking any steps to contest any of the terms of this agreement. If the Parties are unable to agree upon the nature or amount of such security, the amount shall be determined by Rurik McKaiser Attorneys Incorporated, in consultation with the Parties, in an attempt to reach sufficient consensus. In the event of consensus not being reached, Rurik McKaiser Attorneys Incorporated shall have the final decision on the amount and nature of the security. This decision shall be final and binding on the disputing Parties.
- The Parties to this Alternative Dispute Resolution agreement shall avail themselves to a conciliation meeting, facilitated by Rurik McKaiser Attorneys Incorporated or its duly appointed nominee, to explore the possibility of resolving the issues in dispute prior to going into formal mediation and/or arbitration. This conciliation will be coordinated and conducted in the utmost of good faith by all the Parties present.
- Should either or any of the Parties not be available for conciliation, the Party initiating the proceedings may elect to go directly to Mediation as out at Paragraph 3 below. This election will be formally communicated in writing by the specific Party.
- The Parties may, by mutual consent, choose to agree as to who the Mediator may be. In the event of there not being mutual agreement, Rurik McKaiser Attorneys Incorporated will present the Parties with a list of 3 Mediators to choose from. Should the Parties not be able to agree on the Mediator, Rurik McKaiser Attorneys Incorporated will nominate the Mediator, either from the list of three Mediators or any other Mediator. This nomination will be final and binding on the Parties.
- Any person agreed upon or nominated as aforesaid (“the Mediator”) shall in all respects act as a Mediator, and not as an Arbitrator. The Mediator shall, in consultation with the Parties, be vested with entire discretion as to the procedure and manner to be followed.
- The Parties to the Dispute shall use their best endeavours to procure that the decision of the Mediator shall be given within 10 (ten) business days or as soon thereafter as reasonably possible after it has been demanded, but never later than 15 (fifteen) business days.
- The Mediation outcome shall be final and binding on the Parties to the Dispute and shall be carried into effect and may be made an Order of any competent court at the instance of any of the Parties to the Dispute.
- The provisions constitute an irrevocable consent by the Parties to this Agreement, to any proceedings in terms thereof and none of the Parties to a Dispute shall be entitled to withdraw therefrom or claim at any such proceedings that he is not bound by the provisions.
- In the event of Mediation not being successful, the provisions of Paragraph 4 below comes into effect.
- The Parties have 5 (five) business days to indicate their intention to the Mediator, as to whether they wish to continue with the mediation process, or alternatively proceed with the Arbitration process.
- The Mediator will be given within 15 (fifteen) business days to present the Parties with certified copies of the signed settlement agreement.
- The settlement agreement shall be deemed a unanimous resolution of the Parties.
- With the consent of the disputing Parties, the mediation session can go directly to arbitration, with the Mediator acting as the Arbitrator.
- A dispute between the Parties relating to any matter arising out of this Agreement or the interpretation thereof shall be referred to arbitration, by either of the Parties, by way of a Notice to the other Party, in which Notice particulars of the dispute are set out.
- Such arbitration proceedings shall be held in Johannesburg, at a neutral venue, as chosen by the Arbitrator, and shall be held in a summary manner, which shall mean that it shall NOT be necessary to observe or carry out:
- the usual formalities of procedure (e.g. there shall not be any pleadings or discovery);
- the strict rules of evidence;
- Paragraph 4.2 above is designed to ensure that the process takes place immediately and with a view to it being completed within 14 (fourteen) calendar days after it is demanded.
- Rurik McKaiser Attorneys Incorporated, will establish contact with a reputable Arbitration Forum listed in Paragraph 5 below, and / or reputable arbitrators directly. The purpose for establishing contact with an Arbitration Forum or reputable arbitrators is to ensure that Rurik McKaiser Attorneys Incorporated presents the disputing Parties with a list of three possible arbitrators that may be utilised for the specific arbitration. This list to be presented to the disputing Parties to agree on the Arbitrator. In the event that the disputing Parties are unable to agree on the Arbitrator, the service provider nominated by Rurik McKaiser Attorneys Incorporated will appoint the Arbitrator in its sole discretion. This appointment will be final and binding on the Parties.
- The decision of the arbitrator shall be final and binding on the Parties, who shall summarily carry out that decision and either of the Parties shall be entitled to have the decision made an Order of any Court with competent jurisdiction.
- The decision of the arbitrator shall be deemed to be a unanimous resolution of the Parties.
- No paragraph in this Agreement which refers to arbitration shall mean or be deemed to mean or interpreted to mean that either of the Parties shall be precluded from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator.
- The Arbitration Act 42 of 1965, as amended, shall apply to any arbitration process set out in this ADR.
- SERVICE PROVIDERS
- Should the Parties’ dispute be escalated to Arbitration, the Parties agree to utilise the professional services of The Arbitration Foundation of Southern Africa (AFSA) or any other reputable Arbitrator, and/or Arbitration service provider as referred to in the appointment process as set out above.