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Terms and Conditions

 

DEFINITIONS

  • MCI Consultants (Pty) Ltd, will hereinafter be referred to as “MCI”.
  • “Parties” means the Client and MCI, and Party means any one of them as the context requires.
  • MCI Software is software that has been developed by MCI and refers to the Direct Hire software and its modules.
  • Third Party Software is software that has been developed by any Third Parties.
  • The Software as referred to in this Agreement, includes the Direct Hire software and its modules.
  • The Services means any, and all services which MCI is or may be required to provide under or in connection with this Agreement which will include, but is not limited to the following:
    • Project Management
    • Consulting Services
    • Development
    • Customisation
    • System Integration
    • System Implementation
    • Training
    • Support
  • A Change Request means any additional work requested by the Client as may be agreed upon and signed by the duly authorised representatives of the Parties from time to time, in the form of a Quotation or Proposal, and attached to, or making reference to, this Agreement, and which sets out the Software and/or Services to be provided by MCI to the Client as stipulated therein, (in addition to this Agreement) and such other relevant information.

TERM AND TERMINATION OF AGREEMENT

  • The initial term of this agreement will be a period of 12 (twelve) months from date of acceptance of our proposal and shall then renew automatically for successive 12 (twelve) month terms.
  • Either Party may terminate the agreement as at the end of each term by giving the other party 60 (sixty) days written notice.
  • Should the Client cancel the Agreement prior to the end of any term, the costs incurred by MCI, plus the fees payable by the Client until the date of termination of that term, will be due and payable within 7 days from date of cancellation

TRAVEL AND SUBSISTENCE EXPENSES

  • Local travel will be charged at the standard AA rate based on km’s between MCI’s offices and the Client’s offices.
  • The Client is responsible for all long-distance travel and accommodation costs where required.
  • A per diem subsistence allowance of USD 80 per consultant will be charged to cover food and incidental expenses when traveling outside of South Africa.
  • MCI reserves the right to update these expenses as deemed appropriate.

SERVICES

  • MCI undertakes to carry out the Services as detailed in our Proposal and each Change Request.
  • MCI undertakes to attend to all calls logged within the required Response Times and Service Levels taking into consideration the priority matrix as per the Service Level Agreement attached herewith.
  • For SAAS, MCI undertakes to host the software and the Client data associated with it in a secure third party hosted data centre on behalf of the Client.

CHANGE REQUESTS

  • Should the Client request additional Services and/or Software that exceeds or deviates from the project scope defined in the initial Proposal, or any subsequent Change Request, such an undertaking will be at the sole discretion of MCI and be subject to our hourly rates.
  • The Client may change the Services to be performed by MCI at any time through a Change Request.
  • If the Client requires MCI to update a Change Request, or to investigate a proposed Change, or a Change is necessary to a Change Request, in order to enable Either Party to comply with any law, then MCI will prepare a Change Request in the form of a quotation.
  • The Client will consider in good faith the proposed quotation and revert to MCI by either accepting or rejecting it or requesting further amendments.
  • MCI will not commence work or demand payment for any additional Services to any Change Request unless the Client has agreed to and signed MCI’s quotation or any portion thereof.

TERMS OF PAYMENT

  • Payment for the purchase of any Third-Party software is due on presentation of invoice via EFT prior to installation.
  • Payment for the monthly subscription of the Software (SAAS) is due monthly in advance, via Debit Order or EFT within 30 (thirty) days from date of statement.
  • Payment for the monthly rental of the Software is due monthly in advance, via Debit Order or EFT within 30 (thirty) days from date of statement.
  • Fees for Services and travel will be billed monthly in arrears and payment will be due via EFT within 30 (thirty) days from date of statement.
  • Should payment not be made within 30 (thirty) days from date of statement, then MCI shall be entitled to claim interest at prime overdraft rate plus 2%, from due date thereof to date of payment and reserves the right to suspend all services, without notice, until payment is received.
  • Annual Software License and Maintenance Fees for Third Party Software are due annually in advance prior to the end of each term. MCI will invoice the Client annually in advance and payment for the Annual License Fees is due 7 (seven) days from date of invoice.

TELEPHONE SUPPORT

  • Calls outside of support contracts are billed in 15-minute increments at our current rates with a minimum charge of 15 minutes per call.

OVERTIME

  • Any services provided outside MCI’s standard working hours (Monday to Friday, 08h30 to 17h00) and on Public Holidays will be billed at 1½ times our current rates.

ESCALATIONS

  • Our current hourly rates are subject to increase without notice each year.
  • Increases will not exceed the average CPI% for the prior year.

FAIR USAGE POLICY  FOR SOFTWARE AS A SERVICE

  • MCI’s SAAS Software operates within a multi-tenancy architecture, which means that our Software is utilised concurrently by a number of clients.
  • If a single client places very high demands on the SAAS, then it is possible that this will affect the experience for other clients. To prevent this and as part of our commitment in providing a high-quality, fast and reliable service, MCI utilises as a Fair Use Policy (“FUP”) for our SAAS Software.
  • Our FUP ensures that our SAAS Software is utilised fairly by all clients.
  • Our FUP is defined in terms of the number of transactions occurring per client per the monthly fee.
  • Only clients that consistently generate exceptionally high server processing/bandwidth and/or storage loads and volumes over a sustained period of time will be affected by our FUP.
  • If The Client repeatedly exceeds our FUP, MCI reserves the right to restrict the SAAS, or levy additional charges for excessive usage.

RESTRAINTS

  • The Client may not directly contract the services of any MCI personnel during the contract period and for a period of 48 (forty-eight) months after termination of the contract.
  • MCI may not directly contract the services of any Client personnel during the contract period and for a period of 48 (forty-eight) months after termination of the contract.

CONSENT TO OBTAIN BUSINESS CREDIT PROFILE

  • The Client consents to MCI carrying out whatever credit checking routines it may deem necessary.

CONSENT TO USE CLIENT’S NAME AND LOGO

  • The Client agrees to allow its name and logo to be used as a user of MCI software in promotional materials.

CLIENT RESPONSIBILITIES

  • The Client must appoint a Project Liaison who will be required to liaise with MCI on a regular basis.
  • The Client must assist MCI‘s personnel by allowing MCI‘s personnel access to the Client’s premises, hardware, software, telephones and the like necessary so as to allow MCI to fulfil its obligations in terms hereof.
  • The Client will not for the duration of this agreement, modify, enhance, upgrade, alter, remove or tamper with the Software without MCI‘s prior written consent, which will not be unreasonably withheld.
  • The Client shall not be entitled to cede its rights or to assign its obligations under the agreement to any third party.

MCI RESPONSIBILITIES

  • MCI will appoint a Project Manager to co-ordinate all activities in conjunction with the Client Project Liaison.
  • MCI will use adequate numbers of appropriately skilled, qualified and experienced personnel.
  • MCI will ensure that its personnel have the requisite skills, expertise and knowledge to provide the Services and that the personnel render the Services in a professional manner.
  • MCI undertakes to manage and ensure continuity of system knowledge of its personnel.
  • MCI will provide the Services as specified in our Proposal and each Change Request.
  • MCI undertakes to attend to all calls logged within the required Response Times and Service Levels taking into consideration the priority matrix as per the Service Level Agreement attached herewith.
  • MCI will ensure that the Client is provided with the latest version of the Software and that the Software is regularly updated and modified to ensure the same.
  • MCI undertakes to carry out configuration/development of the Software as detailed in our Proposal and any Change Request.
  • Should the Client request additional configuration and/or development of the Software that exceeds or deviates from the project scope defined in our Proposal or any Change Request, such an undertaking will be at the sole discretion of MCI and be subject to our hourly rates.
  • MCI will provide timesheet records with each monthly invoice.
  • MCI will keep record of the hours utilised during the month and will include the no charge details on the timesheet reports.
  • MCI hereby acknowledges that the data, excluding the Software, is the property of the Client.
  • Should the Client terminate the agreement in accordance with the term and termination clause herein and provided all outstanding amounts due to MCI have been settled in full, MCI undertakes to furnish the Client with an extract of their data, at the Client’s cost.

CONFIDENTIALITY AND OWNERSHIP OF THE SOFTWARE

  • The Client hereby acknowledges that any, and all, of the trademarks, trade names, copyrights, patents, and other intellectual property rights used or embodied in or in connection with the Software and other parts thereof, in which MCI or the respective manufacturer, developer or third party has an interest, is and shall remain the sole property of MCI or such manufacturer, developer or third party.
  • All material and proprietary information regarding the Software will be treated as confidential and owned by MCI or the respective manufacturer.
  • The Client is specifically prohibited from disclosing any information regarding the Software to parties that may be considered as competitors to MCI or the respective manufacturer, or who may wish to develop any part of the Software.
  • In particular, the Client shall not permit third parties to have access to the Software without the prior written consent of MCI, who may require that such third parties execute a written confidentiality agreement before being given access to the software.
  • The Client will not be involved in any endeavour or relationship to attempt to replicate any part of the Software functionality, or reengineer, dissemble or decompile the Software.
  • Any modification and/or developments to Software requested by the Client shall be the property of MCI or the respective manufacturer, unless agreed to in writing by both parties.
  • This clause is severable from this Agreement and will remain in effect for 24 (twenty-four) months after termination of this Agreement.

INTELLECTUAL PROPERTY RIGHTS

  • All title, copyright and other intellectual property rights related to Software and its documentation shall remain vested in MCI or the respective manufacturer of Third-Party Software.
  • The intellectual property provided by MCI will not infringe or misappropriate any intellectual property right, confidential information, trade secret, privacy or other proprietary right of any third party or the Client.
  • MCI’s use of the Software does not infringe the Client’s intellectual property rights or any third-party intellectual property rights.
  • The copyright and other Intellectual Property Rights of whatever nature in the Software and the documentation, as well as all modifications, extensions, customizations, scripts or other derivative works of the Software and the Services, are, and shall remain, the sole property of MCI or the respective manufacturer, and the Client acquires no rights in or to the Software or Documentation other than those expressly granted by this Agreement.
  • The Client shall use reasonable endeavours to prevent any violation of MCI’s or the respective manufacturer’s, proprietary rights in the Software and shall promptly report to MCI any such violation that comes to its attention.

RESTRICTIONS

  • Subject to the Client paying the Fees in accordance with this Agreement and the other terms and conditions of this Agreement, MCI hereby grants to the Client a non-exclusive, non-transferable right to permit the Users to use the Software and the Documentation during the Term solely for the Client’s internal business operations.
  • In relation to the Users, the Client undertakes that:

(a)          from time-to-time MCI may audit the Software in order to establish the number of Users.

(b)          if, as a result of an audit or otherwise it is revealed that the Client has underpaid Fees to MCI, then without prejudice to MCI’s other rights, the Client shall pay to MCI an amount equal to such underpayment as calculated in accordance with the Fees within 7 (seven) Business Days of the relevant date.

  • Both MCI and the the Client shall not access, store, distribute or transmit any Viruses, or any material, during the course of its use of the Software and Services that:

(a)          is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive.

(b)          facilitates illegal activity.

(c)          depicts sexually explicit images.

(d)          promotes unlawful violence.

(e)          is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability. or

(f)           in a manner that is otherwise illegal or causes damage or injury to any person or property.

  • MCI reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

THIRD PARTY SOFTWARE AND DATA

  • MCI is not responsible for the continuing availability or operation of any Software, applications or data, licensed, developed or provided by any party other than MCI, nor for the Software when embedded in any system developed by any party other than MCI.
  • MCI cannot warrant the continuing availability or compatibility of any third-party integrations with the Software and disclaims same.

UNAVAILABILITY OF SOFTWARE SERVICE (SAAS)

  • Access to or use of the Software may be subject to limitations, capacities, buffers, delays, and other problems inherent in the use of the Internet and electronic communications and third-party vendor systems and software.
  • MCI is not responsible for any such delays, delivery failures, or other damage resulting from such interruption of Software service as a result of actions or omissions by the Client, Internet and electronic communications, or the performance, functions and limitations of the Client’s infrastructure.
  • MCI will schedule routine maintenance or upgrade times during which the Software may be inaccessible.

 

USAGE GUIDELINES FOR SOFTWARE AS A SERVICE

  • The Client and each User shall use the Software solely for the Client’s internal business purposes as contemplated by the Agreement and shall not:
    • knowingly send or store infringing, obscene, threatening or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights.
    • knowingly send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs.
    • knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein.
    • use the Software in contravention of any applicable laws or regulations. or
    • attempt to gain unauthorized access to the Software or its related systems or networks.

SUSPENSION OF SOFTWARE AS A SERVICE FOR ONGOING HARM

  • MCI may with reasonably contemporaneous notice to the Client, suspend access to the Software if MCI reasonably concludes that the Software is being used to engage in spamming, or illegal activity, and/or use of the Software is causing immediate, material and ongoing harm to MCI, or the respective manufacturer of the Software or others.In the event MCI suspends access to the Software, MCI will use commercially reasonable efforts to limit the suspension to the offending portion of the Software and work with the Client to resolve the issues causing the suspension of the Software usage.
  • The Client agrees that MCI shall not be liable to the Client nor to any third party for any suspension of the Software usage under such circumstances as described in this section.
  • Any suspension under this section shall not excuse the Client from the Client’s obligation to make payments under this Agreement.

 

CUSTOMER DATA

  • As between MCI and the Client, all Client Data is owned exclusively by the Client.
  • MCI may access the Client’s User counts, including the Client’s Data, solely to respond to service or technical problems, at the Client’s request, or for training purposes.
  • MCI reserves the right to electronically collect aggregated, anonymized data regarding the Client’s and Users’ user of the Software and share same with the respective manufacturer. Such data shall not constitute the Client Data.

WARRANTIES

MCI warrants that:

  • It has all the necessary rights, powers and authority to enter into and perform the Agreement, and the execution, delivery and performance of the Agreement by MCI has been duly authorised by all necessary corporate actions.
  • It will ensure that its personnel at the Client premises at all times comply with the Client’s policies and procedures, copies of which will be made available on request, and that the rendering of the Services is in accordance with such policies and procedures.
  • Its personnel have the requisite level of skills and expertise and qualifications to render the Services in accordance with industry Best Practices and in the appropriate technologies to maintain the systems.
  • Its personnel have the requisite business knowledge of the Software to provide functional analysis for system needs.
  • Sufficient technical knowledge is retained by its personnel with regards to all Software, technologies and frameworks used.
  • It is an expert in providing the Services and is capable of providing the Services as required by this Agreement, and all related Change Requests.

LIABILITY AND INDEMNITY

Notwithstanding anything to the contrary contained in this Agreement:

  • The Client shall not have any claim of any nature whatsoever against MCI for any failure by MCI to carry out any of its obligations in terms of the agreement as a result of Vis Major.
  • For the purposes hereof Vis Major shall include, without being limited to, strikes, lockouts, accidents, shortages or unavailability of supplies or other stock from normal sources, riots, political or other disturbances, the elements, any act of any State or Government or any other authority, or any cause whatsoever (without being limited by the aforegoing) beyond MCI‘s control.
  • The Client shall have no claim of any nature whatsoever whether for damages, special damages, a remission of any amounts due in terms of the agreement, cancellation or otherwise, against MCI, its directors, employees, and agents, in respect of any loss or damage sustained by the Client of any nature whatsoever, arising out of or connected with the Agreement, the implementation of the Agreement, the Software to be installed in terms of the Agreement, the use of the Software or otherwise.
  • In the case of losses arising from fraud, negligence, or wilful misconduct by Either Party, neither MCI nor the Client limits or excludes its liability:
  • in respect of any theft, fraud or fraudulent misrepresentation by it or its employees, and in the case of MCI, by MCI
  • for wilful misconduct and for gross negligence.
  • for breach of Confidentiality, Intellectual Property, Data Protection, or any information security obligations under this Agreement.
  • abandonment of the Agreement either by MCI or the Client; and

to the extent such limitation or exclusion is not permitted by applicable Law, the maximum aggregate liability of Each Party for damages or alleged damages arising out of fraud, negligence or wilful misconduct, breach of contract or otherwise, shall not exceed, for Each Party, the greater of 100% of the fees paid or payable under the Agreement, or, if the Agreement is terminated in its initial term, 100% of the annualised amount of fees for the time the Software and / or Services were actually provided.

BREACH

  • Should a party allege that the other party is in default of performance of any of its obligations in terms of the agreement, the aggrieved party shall notify the defaulting party in writing of such default specifying the nature thereof.
  • Should the other party be in breach after notice as above and remain in breach for 14 days after written notice to rectify the breach has been delivered, the aggrieved party shall be entitled forthwith to cancel this Agreement, and claim subject to the terms of agreement, for any loss or damage the aggrieved party may sustain.
  • Notwithstanding the aforegoing, or any other provision contained herein, a party shall be entitled to terminate this agreement immediately, and without notice, on one or more of the following events:
  • the other party being declared insolvent or suffering a judgement to be granted or entered against him in or by any court of law.
  • the other party being convicted of an offence involving dishonesty.
  • the other party committing a material breach.

ANTI-BRIBERY

  • MCI is committed to maintaining the highest standards of honesty, integrity and ethical conduct.
  • This and other MCI policies uphold our commitment to the fight against bribery and corruption, in both private and public sector transactions, including facilitation payments.
  • The MCI Code of Conduct is communicated to all employees.
  • MCI’s Policy clearly states that: “In dealing with public officials, other corporations and private citizens, we will not seek to influence others, either directly or indirectly, by paying or receiving bribes or kickbacks, including but not limited to payments to local officials by MCI employees or agents for the completion of routine governmental administrative actions (so-called facilitation payments), or by any other measure that is unethical or that will tarnish our reputation for honesty and integrity. Even the appearance of such conduct must be avoided.”
  • The Client shall not, and shall procure that its employees, agents, and sub-contractors, shall not offer, solicit, or accept an inducement/advantage in connection with the service under the contract.
  • The Parties shall not engage in any activity, practice or conduct which would constitute an offence under the Act or policies.
  • Unethical conduct may or may not constitute illegal or corrupt behaviour.
  • Breach of this clause shall be deemed a material breach of this Agreement entitling Either Party to terminate it immediately.

WHOLE AGREEMENT AND NON-WAIVER

  • No indulgence of whatever nature or any relaxation of any of the terms or conditions of this agreement granted by any one party to the other shall in any way constitute a waiver or a novation of the grantor’s rights to strictly enforce the terms hereof, not operate as any estoppel.
  • No warranty, representation or statement made by any one party to the other which is not contained in this agreement shall be of any force or effect or binding upon the parties.
  • This agreement, together with all its schedules, constitutes the sole and exclusive record of the agreement between the parties relating to the subject matters hereof and no variation, modification or waiver of any provision thereof, or consent to any departure there from by any party, shall be of any force or effect unless the same shall be confirmed in writing and signed by or on behalf of that party and any other party affected thereby, and in any event the same shall be effective only in the specific instance and for the purpose, and to the extent for which made or given.

JURISDICTION

  • The parties hereby consent to the jurisdiction of the South African Magistrate’s Court in terms of Section 45 of Act 32 of 1944, as amended, for all purposes in terms of this agreement. Both parties shall nevertheless be entitled, to institute action in any other court having competent jurisdiction.

These Terms and Conditions were last revised on 6 April 2022. Any material changes hereto will be published on our website. Your continued use of our services following any updates means that you accept MCI’s Terms and Conditions.