1. General Terms

1.1        These Terms and Conditions (“T&Cs”) govern your (“User”) use of (“Berrry”) website located at the domain name (http://berrry.com/) (“Website”).

1.2        By accessing and using the Website, the User agrees to be bound by the Terms set out in this legal notice.

1.3        If the User does not wish to be bound by these Terms, the User may not access, display, use, download, or otherwise copy or distribute Contents obtained from the Website.

1.4        These terms regulate the provision of Berrry’s website creation service (the “Service”). Your use of the Service is subject to these Terms and Conditions (“T&Cs”).

1.5        Berrry reserves the right to update and change the T&Cs from time to time; Berrry will notify the User of the changes via email or by posting a prominent notice on the Website. The User’s continued use of this Website following the posting of changes or updates will be considered notice of the User’s acceptance of these Terms, including any changes or updates.

2. Website creation service (the “Service”)

2.1.       User may create their own website in Berrry:

The Service is web-based and allows users that register for an account on the Service to create and update an online website on Berrry.com. Once the user has registered its account with Berrry a website can be created and deployed in Berrry.

Unless explicitly stated otherwise, any new features that enhance the current Service, including the release of new Berrry tools and resources, shall be subject to the T&Cs.

You acknowledge that Berrry may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time without notice to you.

Berrry reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with notice to the user via email or a posting on the website.

2.2.       Berrry can create a website on behalf of the user on the Users special request.  In this event a once off fee will be negotiated and a separate agreement will be entered into.  For more info Berrry may be contacted.

3. Registration to the Service

To Register for the Service you must provide Berrry with a valid email address and then choose a password. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to

(a) immediately notify Berrry in writing (info@berrry.com) of any unauthorized use of your password or account or any other breach of security.

(b) and ensure that you exit from your account at the end of each session.

In consideration of use of the Service, you agree to:

(a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form,

(b) and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Berrry has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Berrry has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

(c) allow Berrry to contact you on your email address with personal communications related to your account, including but not limited to registration notices, subscription notices and updates, and account introduction materials.

4. Website creation rules

4.1        You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”) are the sole responsibility of the person from which such Content originated. You, and not Berrry are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. Berrry does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.

4.2        You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Berrry be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that Berrry does not pre-screen Content, but that Berrry shall have the right (but not the obligation) in their sole discretion to refuse, move or delete any Content that is available via the Service. Without limiting the foregoing, Berrry shall have the right to remove any Content that violates the T&Cs or is otherwise objectionable in Berrry’s sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

4.3        You acknowledge and agree that Berrry may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:

(a) comply with legal process;

(b) enforce the T&Cs;

(c) respond to claims that any Content violates the rights of third-parties; or

(d) protect the rights, property, or personal safety of Berrry, its users and the public.

4.4        Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Berrry’s sole discretion as to what action should be taken.

4.5        You agree that you will not:

(a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;

(b) harm minors in any way;

(c) impersonate any person or entity, including, but not limited to, a Berrry official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;

(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;

(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

(j) intentionally or unintentionally violate any applicable local, national or international law,

(k) “stalk” or otherwise harass another;

(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;

(m) offer for sale or sell any item, good or service that (a) violates any applicable local, national or international law,, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) Berrry determines, in its sole discretion, is inappropriate for sale through the Service provided by Berrry;

(n) use the Service as a forwarding service to another website;

(o) solicit passwords or personal identifying information for commercial or unlawful purposes from other users;

(p) exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples comments or content;

(q) make any automated use of the system.

4.6        If any user is reported to be in violation with the letter or spirit of these terms, Berrry retains the right to terminate such account at any time without further warning.

5. Subscription fees and Payments

Once the website is created on Berrry and published the user will be prompt to accept the payment of Fees as described in the initial quote.

The Fees are payable to Berrry subject to the following conditions:

5.1        Payment for the Service (Automatic Invoices will be generated from the system after credit card / Instant EFT payment has been processed.)

5.2        Payment may be made by credit card (Visa, Master Card) or debit card..

5.3        Payment may also be made by electronic funds transfer (EFT) via the PayFast instant EFT facility.

5.4.       The prices for the Service are as set out on the website at the time of acceptance of order by the Company.

55.        Credit card transactions will be acquired for the Company via  PayFast and no credit card details are stored on the website.  Users may go to www.payfast.co.za  to view their security certificate and security policy.

 

• Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Service is terminated during the period to which the payment relates,
• any set up fee will (unless stated to be included within later payments) be payable immediately;
• Extra Fees will become payable if the Client exceeds agreed or stipulated bandwidth use levels.  All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay for any such taxes that might be applicable to your use of the Service and payments made by you herein.

Subscription fees for “Unlimited” services are subject to fair usage. Berrry reserves the right to cease services without notice for any users violating fair usage policies. This includes:

• Using the service purely as a file storage and/or hosting service
• Remotely accessing the service using automated methods
• Serving copyrighted or other content of an illegal nature

Users who are regularly exceeding high usage thresholds will have their account and service fees subject to review. Berrry services will not be unduly witheld, but Berrry reserves the right to increase any individual users’ pricing to cover minimum storage and bandwidth costs associated with any particular site.

For reference, current high usage thresholds are 30GB of storage and 2TB bandwidth.

The final choice of whether an account is in violation of any of these policies is at the sole discretion of Berrry Platform.

6. Termination and Cancelation of the Service

6.1        If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your website and all information contained therein may be deleted by Berrry. Berrry accepts no liability for such deleted information or content.

6.2        If you have purchased or were provided as part of your subscription package one or multiple domain names you will not be able to cancel the Service until a minimum period of sixty days from the last confirmation date of any successful domain registrations associated with your Account.

6.3        Early termination within this 60 day period may be subject to an early termination fee based upon the number of domain names associated with your Account and the length of your subscription.

6.4        You agree Berrry, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service, for any reason, including and without limitation, the lack of use, or if Berrry believes that you have violated or acted inconsistently with the letter or spirit of the T&Cs.. Berrry may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this T&Cs may be effected without prior notice, and acknowledge and agree that Berrry may immediately deactivate or delete your web site, as applicable, and all related information and files. Berrry reserves the right to bar any further access to such files or the Service. You agree that Berrry shall not be liable to you or any third-party for any termination of your access to the Service.

6.5        Berry shall be entitled (but not obliged) by written notice to the User to immediately terminate the contract (together with any other contract which it may have with the User) on the occurrence of any one or more of the following:

 

a)         bankruptcy, winding up or other insolvency proceedings being instituted in relation to the User, and/or

 

b)         bankruptcy, winding up or an administration order being made by a Court of competent jurisdiction in relation to the User, and/or

 

c)         An administrator, receiver or administrative receiver being appointed in relation to the User or in respect of any property of the User, and/or

 

d)         The User making or proposing to make an arrangement with its creditors.

 

In the event of abovementioned the parties shall place each other in the position before signature or conclusion of this agreement.

 

7. Websites created and Content submitted

7.1        By submitting Content to Berrry for the creation of a website in Berrry, you grant Berrry a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content within the Berrry platform. This license exists only for as long as you continue to be a Berrry customer and shall be terminated at the time your website is terminated.

7.2        You acknowledge that Berrry does not pre-screen Content, but that Berrry shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Berrry shall have the right to remove any Content that violates the T&Cs or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

8. Indemnity 

You agree to indemnify and hold Berrry, and its subsidiaries, affiliates, officers, director’s, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Service, your Guests activities, your connection to the Service, your violation of the T&Cs, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.

9. Berrry Intellectual Property Rights

9.1        You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Berrry, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.

9.2        Berrry does not want to receive confidential or proprietary information from you through the Service or by email. Unless otherwise agreed in writing by an authorized Berrry representative, any material, information or idea you transmit to Berrry by any means may be disseminated or used by Berrry or its affiliates without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products.

10. Disclaimer of warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

10.1      YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BERRRY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10.2      BERRRY WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, BERRRY IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. BERRRY DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

10.3      ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

10.4      NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE T&C’S.

11. Limitations of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT BERRRY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

12.        Costs

12.1      In the event that either party breaches any obligation under this agreement and the aggrieved party deems it necessary to engage the services of a registered debt collector to recover any payments which may be due or payable, the infringing party shall be liable for:

12.1.1   Tracing agent fees (if required);

12.1.2   Fees, disbursements and expenses to which the debt collector is entitled in terms of the Debt Collectors Act;

12.1.3   Collection Commission in the amount of 10% on each instalment paid to the debt collector or paid directly to the aggrieved party following handover of the matter to the debt collector, provided that the collection commission charged shall not exceed the statutorily prescribed maximum amount.

12.2      The aggrieved party’s attorney or debt collector (as the case may be) shall on receiving a payment from the infringing party, have the right to allocate such payment firstly towards disbursements incurred by the attorney or debt collector, secondly towards fees to which the attorney or debt collector is legally entitled, thirdly towards interest due to the aggrieved party and finally towards the capital amount due to the aggrieved party.

13. Domains

Domains that have been registered by Berrry on behalf an Account holder can be transferred to another Registrar subject to the following exclusions determined by the Internet Corporation for Assigned Names and Numbers (ICANN):

1. Evidence of fraud
2. UDRP action
3. Court order by a court of competent jurisdiction
4. Reasonable dispute over the identity of the Registered Name Holder or Administrative Contact
5. No payment for previous registration period (including credit card charge-backs) if the domain name is past its expiration date or for previous or current registration periods if the domain name has not yet expired. In all such cases, however, the domain name must be put into “Registrar Hold” status by the Registrar of Record prior to the denial of transfer.
6. Express written objection to the transfer from the Transfer Contact. (e.g. – email, fax, paper document or other processes by which the Transfer Contact has expressly and voluntarily objected through opt-in means)
7. A domain name was already in “lock status” provided that the Registrar provides a readily accessible and reasonable means for the Registered Name Holder to remove the lock status.
8. The transfer was requested within 60 days of the creation date as shown in the registry Who is record for the domain name.
9. A domain name is within 60 days (or a lesser period to be determined) after being transferred (apart from being transferred back to the original Registrar in cases where both Registrars so agree and/or where a decision in the dispute resolution process so directs). “Transferred” shall only mean that an inter-registrar transfer has occurred in accordance with the procedures of this policy.

Instances when the requested change of Registrar may not be denied include, but are not limited to:

• Nonpayment for a pending or future registration period
• No response from the Registered Name Holder or Administrative Contact.
• Domain name in Registrar Lock Status, unless the Registered Name Holder is provided with the reasonable opportunity and ability to unlock the domain name prior to the Transfer Request.
• Domain name registration period time constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer.
• General payment defaults between Registrar and business partners / affiliates in cases where the Registered Name Holder for the domain in question has paid for the registration.

Domain names cannot be transferred outside of your Account whilst you are within the 60 day minimum term for domain registration regardless of whether your domain names have been purchased or been granted as part of your package.

14  Berrry’s details:

In accordance with the disclosure requirements of the Electronic Communications and Transactions Act (“ECTA”), Act 25 of 2002,:

• Freedom Studios CC ( “Berrry”),
• Close Corporation duly registered and existing under the laws of South Africa registration number: 2005/022455/23,
• with its physical address at 3 Birdie Views, Fleet Road, St Michaels on Sea, Kwazulu-Natal, South Africa,
• Tel 27 39 315 7257
• Berrry’s place of registration is 3 Birdie Views, Fleet Road, St Michaels on Sea, Kwazulu-Natal, South Africa and
• Berrry will accept legal service at 3 Birdie Views, Fleet Road, St Michaels on Sea, Kwazulu-Natal, South Africa.
• Berrry’s directors and office bearers are: Mr Graham Holtshausen & Mrs Ingrid Holtshausen.
• The main business of Berrry is Web design;
• Berrry’s website is http://berrry.com and its email address is info@berrry.co.za;

 

In the event that you need to contact Berrry for purposes related to these Terms and Conditions, please use the following:

Telephone:            27 39 315 7257

Fax:                      27 86 697 4444

Email:                   info@berrry.com

© Freedom Studios  2012

This Website was most recently updated on the 27 March 2012

 

15         Hosting

15.1      The User appoints the Berrry to host the Website for access via the Internet, which appointment Berrry accepts.

15.2      The User will not be able to move the website to any other host as same is not transferable.

16  Domicilium (address for legal notices)

The Parties elect the following addresses as their respective domicilium citandi et executandi (address for the delivery of legal documents):

16.1  Berrry at 3 Birdie Views, Fleet Road, St Michaels on Sea, Kwazulu-Natal, South Africa.

16.2  User at the address specified in your application form.

16.3  The Parties may change their domicilium citandi et executandi by notifying the other parties at least seven calendar days before the change will take effect.

17  Notices

The Parties elect the following addresses at which all Notices and other communications must be delivered for the purposes of this Agreement:

17.1 Berrry:

• by hand at 3 Birdie Views, Fleet Road, St Michaels on Sea, Kwazulu-Natal, South Africa marked for the attention of Graham Holtshausen;
• by post at PO Box 40026, Shelly Beach, 4265 marked for the attention of Graham Holtshausen;
• by telefax at 27 86 697 4444 marked for the attention of Graham Holtshausen;
• by email at info@berrry.com marked for the attention of Graham Holtshausen.

17.2  User: (The information submitted in your application form will be used)

17.3  Any Notice or communication required or permitted to be given in terms of this Agreement will only be valid and effective if it is in writing.

17.4  Any notice addressed to either of the Parties and contained in a correctly addressed envelope and sent by registered post to it at its chosen address or delivered by hand, at its chosen address, to a responsible person on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, will be deemed to have been received, unless the contrary is proved, if sent by registered post, on the 14th calendar day after posting and, in the case of hand delivery, on the day of delivery.

17.5  Any notice sent by telefax or email to either of the Parties at its telefax number or email address as, will be deemed, unless the contrary is proved, to have been received:

• if it is transmitted on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, within two hours of transmission;
• if it is transmitted outside of these times, within two hours of the commencement any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, after it has been transmitted.

18  Force majeure

18.1  Neither of the Parties will be liable for a failure to perform any of its obligations if it proves:

• that the failure was due to an impediment beyond its control;
• that it could not reasonably be expected to have taken the impediment and its effects upon the Party’s ability to perform into account at the time of the conclusion of this Agreement; and
• that it could not reasonably have avoided or overcome the impediment or at least its effects.

18.2  An impediment, includes but is not limited to:

• war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
• natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
• explosions, fires, destruction of machines, of factories and of any kind of installations;
• boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and premises and work stoppages;
• acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of this Agreement.

18.3  For the purposes of this clause “impediment” does not include lack of authorisations, of licences, of permits or of approvals necessary for the performance of this Agreement.

18.4  Relief from liability for non-performance under this clause will start on the date which the party seeking relief gives Notice of the impediment and will stop on the date when the impediment ceases to exist; provided that if the impediment continues for a period of more than 60 days either of the Parties will be entitled to terminate this Agreement.

19  Entire agreement and variations

19.1  This Agreement constitutes the whole agreement between the Parties on the subject and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.

19.2  No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.

19.3  Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.

20  Assignment, cession and delegation

Neither of the Parties will be entitled to transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the other, which consent must not be unreasonably withheld or delayed.

21  Relaxation

No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this Agreement, and which either party (“the grantor”) may grant or show to the other party, will in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right.

22  Waiver

No waiver on the part of either party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

23  Severability

In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, those terms will be severable from the remaining terms, which will continue to be valid and enforceable.

24  Governing law  

The Parties agree that the validity and interpretation of this Agreement will be governed by the laws of the Republic of South Africa.

25 Breach

25.1      If a dispute arises between the parties concerning any matter relating to this Agreement, then both parties shall enter into negotiations, in good faith, in order to resolve the matter.

25.2      In the event that the parties are unable to resolve the matter, or if either party is in repeated breach of this agreement, then the party who has been aggrieved shall give written notice to the other party calling on it to remedy any breach of the agreement. If the other party fails to remedy the breach within 7 (seven) days of receipt of the notice, then the aggrieved party may elect to cancel the agreement, or to demand specific performance, without prejudice to its rights to claim damages and without prejudice to any other rights it may have in law.

25.3      The parties consent to the Jurisdiction of the Magistrates Court of Port Shepstone.