1. INTRODUCTION
1.1. Cash Connect rents out and maintains vaults known as the “Connectr” to its clients. The Connectr is designed to assist with the automation of the retail cash management process.
1.2. The Client is or pursuant to the conclusion of this Agreement intends to be a registered client of Kazang and issued with a Super Wallet. Kazang wishes to increase the product offering supplied to the Client by offering the Client the opportunity to sub-let the Connectr for the safe and efficient daily management of Money held on the Clients’ Premises.
1.3. The Parties hereto record that certain of the obligations as set out in this Agreement are ordinarily performed by Cash Connect. The Parties confirm that Cash Connect and Kazang have entered into a Master Agreement whereby Cash Connect is obligated to perform certain of the obligations recorded in this Agreement on Kazang’s behalf. Notwithstanding this, Kazang confirms that Kazang is liable towards the Client for the performance of all obligations as set out in this Agreement, however the performance of certain obligations have been outsourced to Cash Connect as per the Master Agreement. The Client therefore acknowledges and agrees to certain of the obligations being performed by Cash Connect.
1.4. Kazang does not warrant and shall not be obliged to procure performance of Cash Connect’s obligations in so far as these obligations are not within the direct power or control of Kazang. Where Cash Connect’s obligations under the Agreement are outside the direct power or control of Kazang, and Cash Connect fails to perform the obligations to the Client, Kazang shall, at the written request of the Client (acting reasonably), seek to exercise the appropriate remedies under the Agreement as required in the Master Agreement for the benefit of the Client.
1.5. Any reference to Cash Connect having obligations in terms of the Agreement shall not be construed as Cash Connect being a party to the Agreement, but rather shall be regarded as a recordal of Cash Connect’s obligations towards Kazang as per the Master Agreement, which obligations shall then, mutatis mutandis, apply to the Client as if the Client was Kazang under the Master Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1. In this Agreement, the following words shall have the following meanings:
2.1.1. “Agreement” means this rental, maintenance and cash management agreement, the Signature Schedule, all annexures hereto, and any amendments agreed in writing between the Parties;
2.1.2. “Base Transaction Volume” means the value of Money Deposited in the Connectr in a calendar month;
2.1.3. “Business Day” means any day except a Saturday, Sunday or official public holiday in the Republic of South Africa;
2.1.4. “Cash Connect” means Cash Connect Management Solutions (Proprietary) Limited with registration number 2006/010530/07 and/or Cash Connect Rentals (Proprietary) Limited with registration number 2009/007139/07, as the case may be;
2.1.5. “Cash Management Services” means the cash management services to be provided by Kazang, including the services provided through Cash Connect in terms of this Agreement;
2.1.6. “CIT Keys” means the unique, confidential electronic FOB or iTag and/or physical keys assigned by Cash Connect Rentals to the Client’s CIT Service Provider in Cash Connect’s discretion from time to time, and which is used by the CIT Service Provider to unlock and to re-enable the Connectr after unlocking, in conjunction with the Client;
2.1.7. “CIT Service Provider” means a third-party cash in transit (“CIT“) service provider approved by Cash Connect in writing or as appointed by Cash Connect from time to time;
2.1.8. “Client” means the party whose details appear in the Signature Schedule and who concludes this Agreement with Kazang, together with its permitted assigns and successors in title;
2.1.9. “Client Keys” means the unique, confidential electronic FOB or iTag and/or physical keys assigned by Cash Connect Rentals to the Client, in Cash Connect’s discretion from time to time, and which is used by the Client to access the Connectr;
2.1.10. “Commencement Date” means the Signature Date;
2.1.11. “Connectr” means the vault/cash acceptance device and its related equipment together with the Software and the communications platform duly supplied, installed and working in combination with such device;
2.1.12. “Connectr Bag” means, the “Inner Connectr Bag” inserted into the Connectr and into which Money Deposited is dropped in terms of the Connectr mechanism.
2.1.13. “CPI” means the Consumer Price Index being the annual official rate of inflation in the Republic of South Africa for all metropolitan areas as published by Statistics South Africa, or such other index as may replace it;
2.1.14. “Cross Pavement Carrier” means a cash carrying device which is smoke and dye protected in accordance with CIT industry standards;
2.1.15. “Deposit” means the placing of Money into the Connectr and where the Connectr successfully records the deposit; “Deposited” has a similar meaning;
2.1.16. “End-to-End Service” means a service in terms of which Kazang through Cash Connect performs the Cash Management Services in terms of this Agreement and in addition thereto contracts the CIT Service Provider to provide cash in transit services for the Client;
2.1.17. “Intellectual Property Rights” means any rights under patent, design, copyright, trade secret, trademark and/or other laws throughout the world; and “Intellectual Property” shall have a similar meaning;
2.1.18. “Kazang” means Kazang, a division of Main Street 1723 (Pty) Ltd, with registration number 2019/300711/07;
2.1.19. “Master Agreement” means the agreement concluded between Cash Connect and Kazang in terms of which, inter alia, Cash Connect agrees to perform the Cash Management Services on behalf of Kazang to the Client, including all annexures thereto, and any amendments agreed in writing between Cash Connect and Kazang;
2.1.20. “Maintenance Support” means the scheduled monthly and other discretionary maintenance support services to be provided by Kazang through Cash Connect to the Client in terms of this Agreement;
2.1.21. “Merchant Operation Guide” means the Connectr operating manual provided to the Client, as amended by Cash Connect from time to time;
2.1.22. “Money” means cash notes of South African currency which are legal tender in the Republic of South Africa;
2.1.23. “Parties” means Kazang and the Client, and “Party” refers to either one of them;
2.1.24. “Premises” means the business premises of the Client at which Cash Connect will install the Connectr, as detailed in the Signature Schedule;
2.1.25. “Prime Rate” means the publicly quoted prime rate of interest (nominal annual, compounded monthly in arrears) of First National Bank (a division of First Rand Bank Limited) as certified by any manager of that bank whose authority and designation need not be proved;
2.1.26. “POS Device” means the point of sale device rented to the Client by Kazang which enables the Client to sell value added services to consumers and which requires the Client to deposit funds into Kazang’s bank account to credit a prefunded float from which the Client sells value added services until the prefunded float is depleted;
2.1.27. “Rental and Service Fee” means the monthly rental and service fee for the Services provided in respect of the Connectr;
2.1.28. “Services” means the rental service, Maintenance Support applicable to the Connectr and the Cash Management Services;
2.1.29. “Signature Date” means the date upon which the Signature Schedule is signed by the Party signing last in time;
2.1.30. “Signature Schedule” means the signature and information schedule which binds the client to this Agreement;
2.1.31. “Software” means all the software relating to the Connectr;
2.1.32. “Super Wallet” means the account registered in the name of the Client which all Money Deposited in the Connectr will be credited to for the Client’s use and benefit, subject to the relevant agreement entered into by Kazang and the Client governing the rights and obligations associated with the use by the Client thereof.
2.1.33. “Tamper Evident Bag” means a tamper-evident sealed plastic bag approved by a CIT Service Provider, otherwise called the “Outer Bag” into which the (Inner) Connectr Bag is inserted by the Client and sealed before handing over to the CIT Service Provider on collection of the Money;
2.2. In this Agreement (a) headings are included for ease of reference only and shall not affect the interpretation of this Agreement; and (b) the masculine includes the feminine and neutral and the single includes the plural and vice versa.
2.3. In the event of a conflict or inconsistency between any term in the main body of this Agreement or the Signature Schedule, the terms of the main body shall prevail with respect to the subject matter of the relevant clause only.
2.4. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
3. DURATION
This Agreement shall commence on and bind the Parties from the Commencement Date and shall continue indefinitely, unless terminated by either Party for convenience, without reason, by providing the other Party with at least 1 (one) calendar month’s written notice.
4. KAZANG OBLIGATIONS
4.1. Kazang shall ensure that Cash Connect shall:
4.1.1. deliver the Connectr to Client at the Premises referred to in the Signature Schedule;
4.1.2. install and commission the Connectr. Cash Connect and/or Kazang shall not be obliged to undertake any shopfitting for the purposes of installing the Connectr at the Client’s Premises. In circumstances where the Client requires any shopfitting for the purposes of the installation of the Connectr, the Client shall be obliged to contract directly with its own shopfitter at its own cost. Neither Kazang nor Cash Connect shall be responsible for any loss, damage or delays as a result of the shopfitting performed by the Client’s shopfitter;
4.1.3. provide the Maintenance Support and such other reasonable maintenance and technical support to ensure the Connectr is in good working order. Kazang shall be entitled to claim all costs incurred by Kazang from the Client, at Kazang’s sole discretion, which fees may be charged for labour and the replacement of parts and equipment, when found to be damaged through misuse or negligence by the Client;
4.1.4. effect repairs at the Premises or wherever else it deems it practical or expedient;
4.1.5. provide adequate training to those members of the Client’s staff that will be involved in the operation of the Connectr, the system and the use of the Client Keys;
4.1.6. provide such additional training to new members of the Client’s staff from time to time and at the Client’s request;
4.1.7. upon receipt by its contact centre of a request for emergency maintenance support, provide a maintenance engineer within a reasonable time.
4.2. Kazang and/or Cash Connect shall be entitled to discharge all or any of Cash Connect’s obligations in terms of this clause 5 directly or by any nominated contractor, sub-contractor or agent of its choice.
5. CLIENT OBLIGATIONS
5.1. The Client shall ensure that it complies in all respects with the laws of the Republic of South Africa, including but not limited to the Financial Intelligence Centre Act 38 of 2001, the Prevention of Organised Crime Act 121 of 1998, the Prevention of Counterfeiting of Currency Act 16 of 1965, and any other law, enactment or statute relevant to the Client’s business.
5.2. The Client shall comply strictly with the following provisions and operational procedures, dealing with CIT services:
5.2.1. a bag closure must be performed strictly in accordance with Cash Connect’s specifications and a Bag Closure Report must be printed from the Connectr in use at the Premises upon the arrival of the CIT Service Provider;
5.2.2. the Client must select a Connectr Bag (Inner Connectr Bag) from the stock as supplied by Cash Connect and complete the routing panel with the destination details as directed by Cash Connect from time to time, in preparation for the insertion of the Connectr Bag into the Connectr device once the full, sealed Connectr Bag has been removed;
5.2.3. the Client shall ensure that before the Money is removed in the ordinary course from the Premises, the person attending to the removal of the Money is a bona fide representative of the CIT Service Provider, by requesting that person to identify himself with reference to his Company’s identity document (the “Authorised Representative”). The Client shall ensure that it is familiar with the design of the relevant identity document;
5.2.4. the Client shall obtain the signature of the Authorised Representative each time Money is removed from the Premises by signing the collection receipt presented to it by the Authorised Representative for that purpose;
5.2.5. in respect of the N3K, L10K and N10K models, the Client shall enable the CIT authorisation process by placing their finger on the biometric reader in order to prepare the Connectr for CIT collection, followed by the Authorised Representative presenting their CIT Key to the i-button reader on the device itself;
5.2.6. the Authorised Representative will carefully remove the Inner Connectr Bag and check that it is sealed;
5.2.7. the Client must insert the Inner Connectr Bag into the carrier approved Tamper Evident bag and seal it, provided that only 1 (one) Inner Connectr bag shall be inserted into a Tamper Evident bag;
5.2.8. the Authorised Representative will record the Tamper Evident Bag number on the collection receipt and the Client shall check that the seal number as entered is correct;
5.2.9. the Authorised Representative shall place the Tamper Evident Bag into a Cross Pavement Carrier and then close and lock the Cross-Pavement Carrier;
5.2.10. the Client will then carefully place the new Inner Connectr Bag into the correct position in the Connectr and set it, before closing the Connectr. The Client will then lock the Connectr. The CIT Key will be returned to the envopak which will then be sealed by the Authorised Representative who will record the envopak seal number on the collection receipt which shall also be signed by the Client;
5.2.11. by signing the CIT Service Provider’s receipt, the Client confirms that the entries recorded thereon are all correct and the Inner Connectr Bag and the Tamper Evident Bag are properly sealed. If for some reason the Inner Connectr Bag is not properly sealed, it shall be stapled closed by the Authorised Representative before inserting it into the Tamper Evident Bag;
5.2.12. the original of the signed collection receipt must be left with the Client as proof of collection;
5.2.13. the Client shall ensure that the routing panel of every new Inner Connectr Bag is properly written up with the cash processing centre/facility as designated by Cash Connect, prior to placing the Inner Connectr Bag in the Connectr and that the Inner Connectr Bag’s unique barcode is read and recognised by the Connectr, and that each Inner Connectr Bag is correctly seated inside the safe prior to the Connectr being closed and locked;
5.2.14. the Client shall ensure that the Client’s obligations and procedures described in this clause 5.2 shall always be executed by a duly appointed supervisor or equivalent and shall never be left to the same cashiers who effect deposits into the Connectr;
5.2.15. any Inner Connectr Bag removed from the Connectr which has not sealed correctly shall be stapled closed and placed inside a carrier approved Tamper Evident Bag by the Authorised Representative and the unique seal number of such bag shall be recorded on the Authorised Representative’s receipt;
5.2.16. immediately upon the Client becoming aware thereof, Client shall report to Cash Connect, via the designated Cash Connect Contact Centre, any defect or malfunction in the Connectr or any part thereof or any factor causing or threatening damage or destruction of the Connectr and allow all maintenance, repairs or adjustments necessary for the proper functioning of the Connectr to be done regularly and timeously.
5.3. The Client shall ensure that at least one member of the Client’s staff is trained by Cash Connect on an annual basis and that only such staff member/s trains members of the Client’s staff that are involved in the use of the Connectr. Cash Connect will at its own discretion determine if the Client trainer is competent in providing training of the Connectr and if it is not satisfied, Cash Connect will train directly at an agreed market related charge.
5.4. The Client shall ensure that prior to depositing any Money into the Connectr once it has been installed and switched on, the CIT Service Provider has taken possession of both CIT Keys and has issued the Client a receipt for them. The Client shall immediately thereafter provide Cash Connect with written confirmation that the CIT Service Provider has taken possession of both CIT Keys. At no time for the duration of this Agreement shall the owners, directors, members, officers, employees, agents and assigns, or any other person engaged by the Client take possession of one or both of the CIT Keys from the CIT Service Provider.
5.5. Immediately upon the Client becoming aware thereof, Client shall report a damaged, lost or stolen Client Key or CIT Key to Cash Connect.
5.6. Immediately after any loss of Money occurs, Client shall forthwith notify Cash Connect thereof by informing Cash Connect’s Contact Centre by not later than 24 (twenty-four) hours after the occurrence giving rise to the loss.
5.7. Where Cash Connect wishes to investigate any matter or issue pursuant to this Agreement, the Client undertakes to offer every reasonable assistance and to co-operate fully with Cash Connect in its investigation. The Client shall allow Cash Connect access to the Client’s premises, books and records (including but not limited to accounting programmes, bank statements and bank deposits), and to make copies thereof and to interview and take statements from the Client’s directors, members, contractors, servants, employees and agents to enable Cash Connect to investigate any incident, claim, suit or demand which may be threatened, contemplated (whether against Cash Connect or not) in respect of such incident, claim, loss or damage whether suffered by Cash Connect, the Client or any third party.
5.8. All of the CIT collection receipts signed by the CIT Service Provider and / or the Client shall be retained in safekeeping by the Client for the duration of this Agreement and for 12 (twelve) months thereafter for the purposes set out above. The Client shall immediately, upon written request, provide Cash Connect with a certified copy of any such collection receipt and shall allow Cash Connect to view the original thereof.
5.9. In the event that Cash Connect does not provide an End-To-End Service the Client acknowledges, agrees and undertakes that:
5.9.1. it shall not, for the purposes of this Agreement be entitled to enter into a written agreement with a CIT Service Provider for the provision of CIT Services unless the CIT Services Provider is (and for the duration of this Agreement remains) a CIT Service Provider, approved by Cash Connect and/or Kazang (in its discretion) in writing and the Client has provided Cash Connect and/or Kazang with a copy of the CIT Agreement concluded by the Client and the CIT Service Provider together with a valid client code (as advised by the CIT Service Provider to the Client) and Cash Connect shall be entitled to confirm any aspect of the CIT Agreement directly with the CIT Service Provider.
5.10. The Client acknowledges that there are additional risks that are not covered by the Cash Management Services and as such it is incumbent upon the Client to effect or retain sufficient insurance cover for such risks.
5.11. The Client shall comply strictly with the following provisions and operational procedures, dealing with rental and use of the Connectr (including but not limited to):
5.11.1. not use the Connectr other than for purposes of Client’s cash management system and in terms of this Agreement;
5.11.2. not allow any work to be carried out on the Connectr or any part thereof by any person or company other than Kazang and/or Cash Connect, its authorised technicians or any other person approved in writing by Kazang or Cash Connect;
5.11.3. not tamper or attempt, or intentionally allow anyone to tamper, with the Connectr;
5.11.4. not loan, rent, sub-licence or otherwise transfer the Connectr or the Software (in any data storage medium), nor alter, modify or adapt the Connectr or the Software, including but not limited to reverse engineering, translating, de-compiling, disassembling or creating adaptations of the Connectr or the Software;
5.11.5. ensure, that all the Client’s employees, agents and contractors responsible for operating the Connectr attend retraining programmes provided by Cash Connect, and that all new staff are trained on the proper use and operation of the Connectr;
5.11.6. at all reasonable times ensure or procure that Kazang and/or its agents or duly authorised representatives of Cash Connect and/or its agents or duly authorised representatives are given access to the Connectr wherever it is located;
5.12. The Client shall not remove the Connectr from either the Premises or the exact position at which it has been installed at the Premises other than with Kazang’s prior written consent and agreement as to the terms thereof. For the avoidance of any doubt where Kazang provides its prior written consent for the purposes of this clause 5.12, the removal and/or any moving of the Connectr may only be carried out by Kazang, Cash Connect or its approved contractor/s.
6. CHARGES AND PAYMENT
6.1. Upon each Deposit by the Client, Kazang shall cause the Client’s Super Wallet to be credited with an amount equal to the Money Deposited in the Connectr (less any amounts due to Kazang in terms of the Agreement, if applicable), at which time, the Client shall cease to have any rights, title or interest to the Money Deposited in the Connectr.
6.2. Kazang shall deduct the Rental and Service Fee from the Client’s Super Wallet at the beginning of each month. The applicable Rental and Service Fee deducted will be calculated based on the Base Transaction Volume for the previous month.
6.3. Should any of the costs associated with Kazang and/or Cash Connect rendering the Service have increased significantly for whatever reason, not making it financially viable for Kazang to continue providing the Services, Kazang shall be entitled to charge the Client such amount, or increase or further increase (as the case may be) to the Rental and Service Fee by such reasonable amount as Kazang deems sufficient to meet the additional costs incurred or to be incurred by it pursuant to such increases, which increase shall take effect from the date of written notice to the Client of such increases.
6.4. The Client authorises Kazang to deduct (or procure the deduction and payment of) any amount due to Kazang in terms of this Agreement from each and every sum of Money Deposited into the Connectr (determined at the time of a Connectr Bag closure and evidenced by the Connectr Bag closure report) prior to making payment of such sum to the Client’s Super Wallet, raising an invoice payable by the Client within 10 days of receipt thereof and/or deduct such fees from the Client’s Super Wallet.
6.5. The Rental and Service Fee shall be subject to an annual CPI increase and exclude value-added tax in terms of the Value-added Tax Act 89 of 1991 (as amended) (unless specified otherwise).
7. TRANSFER TO MULTI ACCOUNT PAYMENT SERVICE OR MULTI-TAG
7.1. The Client may wish to amend the service offering (“Multi Account Payment Service” or “Multi-Tag”) available by Kazang and/or Cash Connect in terms of which Cash Connect will, as payment agent for the Client, on instruction of the Client and from the Money Deposited by the Client into the Connectr/s:
7.1.1. pay the Client’s nominated creditor/s on behalf of the Client, for the goods and/or services purchased or to be purchased by the Client from its creditor/s and in respect of which payment is due (“Creditor Payment Service”); and/or
7.1.2. make payment to the Client’s nominated bank accounts, being bank accounts of the Client but used by the Client for its various branches and/or businesses and/or departments and/or divisions or the like (“Client Division/s”); and
7.1.3. instruct Kazang to credit the Client’s Super Wallet, and thus pay Kazang to give effect to the Client’s instruction. In this regard, Kazang shall automatically be one of the nominated creditors to which Cash Connect will perform the Creditor Payment Service.
7.2. In the event that the Client wishes to make use of the Multi Account Payment Service, the Client shall be obliged to enter into a Cash Management Agreement directly between the Client and Cash Connect, in which event the provisions of such agreement shall supersede such provisions contained in this Agreement, mutatis mutandis, where in conflict with this Agreement.
7.3. Kazang shall be entitled to charge the Client a fee for the Creditor Payment Service should the Client elect to transfer Money Deposited in the Connectr to the Client’s Super Wallet (where Kazang is nominated as a creditor). The Client authorises Kazang to deduct (or procure the deduction and payment of) the amount due to Kazang from each and every sum of Money Deposited into the Connectr (determined at the time of a Connectr Bag closure and evidenced by the Connectr Bag closure report), prior to making payment of such sum to the Client’s Super Wallet, raising an invoice payable by the Client within 10 days of receipt thereof and/or deduct such fees from the Client’s Super Wallet.
7.4. The Client shall contact Kazang in writing prior to it entering into any agreement with Cash Connect as provided herein.
7.5. Kazang shall have no liability of whatsoever nature arising from the obligations of Cash Connect pursuant to Cash Connect providing the Creditor Payment Service to the Client.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1. Cash Connect and/or Kazang, and its directors, officers, employees, agents and/or assigns shall have no liability whatsoever under and in terms of this Agreement and pursuant to the provision of the Cash Management Services (including for delict), and the Client hereby indemnifies Cash Connect and Kazang and its directors, officers, employees, agents and/or assigns in respect of any claim, loss or damage (including for delict) including any such claim caused by or which arises from:
8.1.1. a criminal act, fraud or dishonesty or involvement on the part of the Client, its owners, directors, members, officers, employees, agents and assigns, or any other person engaged by the Client;
8.1.2. collusion between the Client and/or its owners, directors, members, employees, agents and assigns or any other person engaged by the Client and any director, member, employees and/or agents and assigns of Cash Connect and/or Kazang and/or the CIT Service Provider;
8.1.3. the handling, loading, stowage or unloading of the Money by the Client or its employees or any person acting on behalf of the Client;
8.1.4. any breach of the provisions of this Agreement by the Client, its employees or agents or any other person engaged by the Client or the breach of an agreement between the Client and its customers;
8.1.5. and for any period and to the extent that Kazang and/or the CIT Service Provider is prevented, hindered or delayed from performing any Cash Management Services or other obligations under this Agreement, in whole or part, as a result of Force Majeure, third party non-performance, strikes, labour disputes, riots, war, acts of God;
8.1.6. services provided by a CIT Service Provider, where:
8.1.6.1. such loss or damage is the direct result of a criminal act, fraud or dishonesty by the CIT Service Provider or its employees and/or they are not acting within the course and scope of their employment;
8.1.6.2. any measures specified by Cash Connect, Kazang or the CIT Service Provider from time to time have not been strictly complied with;
8.1.7. damage or loss of an indirect, consequential punitive, special or incidental nature, loss of profit, revenue, anticipated earnings, business transactions or goodwill suffered by the Client;
8.1.8. any damages suffered by the Client where such damage relates to the death or injury of any person (whether or not employed or engaged by the Client) and any other damage to property suffered by the Client;
8.1.9. where Cash Connect and/or Kazang has advised the Client in writing that any of the security at the Premises is insufficient, is inoperative or has not been maintained or the like, any additional security is to be provided and or repairs and or maintenance is to be effected by the Client at the premises; and the Client has failed to strictly comply with such written advice, within the timeframe detailed in the written notice;
8.1.10. where the Client fails to maintain the minimum physical security requirements, either as per the initial approved site inspection, or as advised by Cash Connect or Kazang;
8.1.11. excessive use, misuse or negligence in the use of the Connectr.
8.2. None of Cash Connect or Kazang, its directors, officers, employees, contractors, agents or any other persons acting on behalf of Cash Connect or Kazang shall be liable (whether in contract or delict or otherwise) in any way whatsoever for any loss or damage (including, without being limited to, consequential or special damages or loss of profits), injury or loss of life, howsoever arising which may be caused to or suffered or sustained by the Client, its officers, employees, agents and visitors and any other person in attendance at the Premises from time to time and/or the operation and use of the Connectr (whether during the currency of this Agreement or after its termination), unless caused, suffered or sustained as a result of the gross negligence or wilful misconduct of Cash Connect and/or Kazang.
8.3. Notwithstanding anything to the contrary contained in this Agreement, the Client shall remain liable to Cash Connect or Kazang for the replacement value of the Connectr in the event that the Connectr is damaged, destroyed, and/or lost and/or stolen due to the Client’s conduct, except if covered by Cash Connect’s insurance providers and the loss is due to theft, armed robbery and/or hijacking.
8.4. Where Kazang is found to be liable to the Client under this Agreement or otherwise (including for delict), for any loss or damage allegedly suffered by the Client the following limits shall apply to such liability:
8.4.1. the Client’s claim shall be limited to its actual proven direct financial loss which shall under no circumstances exceed R500 000.00 (five hundred thousand Rand) per event; and
8.4.2. Kazang’s liability will be further reduced by the extent, if any, to which the Client or any other party contributed to the loss.
8.5. In the event that:
8.5.1. the Money Deposited in the Connectr is or suspected to be counterfeit, dye-stained, stolen, the proceeds of a crime or is otherwise rejected by the cash processing facility for whatever reason;
8.5.2. the Client has or is conducting themselves unusually or suspiciously with regards to the Money Deposited;
8.5.3. there any shortages within a Connectr Bag where such Connectr Bag has been delivered to the cash processing facility and there is no evidence that the seal or Connectr Bag or Tamper Evident Bag has been tampered with;
8.5.4. the Client has not strictly complied with the operational procedures and obligations in relation to the Connectr and Money Deposited;
Kazang reserves the right to withhold settlement into the Client’s Super Wallet of the amounts in question and/or deduct the amounts in question from the Client’s Super Wallet. Should the amounts have already been utilised by the Client post settlement by Kazang of the amounts in question in the Client’s Super Wallet, Kazang shall be entitled to withhold settlement into the Client’s Super Wallet and/or deduct from the Super Wallet the equivalent amount. Kazang shall be entitled to utilise the funds to pay any victim/s (or the victim/s’s banking representative) and/or the relevant authorities as required under the applicable law, as well as retain for itself to cover damages sustained by Kazang, if applicable.
9. OWNERSHIP OF THE CONNECTR AND CONSEQUENCES IN THE EVENT OF DAMAGE, LOSS, THEFT AND DESTRUCTION THEREOF
9.1. The Connectr shall at all times remain the property of Cash Connect. The Client shall not, by virtue of this Agreement or otherwise acquire any rights of ownership in or to the Connectr.
9.2. Should the Connectr or any part thereof, at any time be kept or installed on premises not owned by Client, then Client shall forthwith notify the owner and/or the lessor in writing of such premises that ownership of the Connectr vests in Cash Connect and provide Kazang with a copy of such notice. However, Kazang shall, itself, be entitled to advise the owner/lessor accordingly.
9.3. Client’s obligations to Kazang arising in terms of this Agreement shall not be interrupted or terminated by any loss of or damage to the Connectr (howsoever arising) and, in applicable, it shall at all times be obliged to continue making payment of the Rental and Service Fee for the duration of the Agreement.
9.4. If the Connectr or any part of it is damaged, lost, stolen or destroyed by whatsoever cause, Client shall immediately notify Cash Connect and Kazang thereof by reporting same to Cash Connect’s contact centre.
9.5. Kazang shall have no obligation to replace a Connectr which is damaged, lost, stolen or destroyed regardless of the cause.
9.6. Client shall not in any way encumber or otherwise dispose of the Connectr or any part thereof in any way whatsoever.
10. USE AND CONTROL OF THE CONNECTR
10.1. The Client shall ensure the Connectr is at all times kept at the Premises and remains in the possession of the Client.
10.2. The Connectr shall be operated and controlled only by properly trained and qualified persons.
10.3. Client shall comply with the specifications, instructions and recommendations of Cash Connect for the operation of the Connectr and shall procure that its staff and representatives similarly comply with such obligations.
10.4. The Connectr provided in terms of this Agreement is provided “as is” and Kazang and/or Cash Connect specifically disclaims any warranty of fitness for a particular purpose, functionality, merchantability or infringement, whether express or implied for any other purpose other than the warranties provided in this Agreement.
11. CONFIDENTIALITY
11.1. The Client acknowledges the confidential nature of Cash Connect’s Intellectual Property Rights associated with the Connectr, including but not limited to documentation, forms, trademarks, instructions, operating manuals and other information.
11.2. The Client shall not without Cash Connect’s prior written consent copy or cause to be copied or disclosed any details of any such technology, design or items to a third party.
12. TERMINATION EVENTS AND BREACH
12.1. If the Client:
12.1.1. defaults or fails to comply with any of the terms and/or conditions of, or any of its obligations under this Agreement, including, if applicable, a default in the punctual payment of any sum (for which no notice to remedy such default shall be required) and fails to remedy any such payment or failure within a period of 2 (two) Business Days of receipt of written notice from Kazang calling upon it to do so;
12.1.2. commits any act of insolvency, is placed in business rescue or allows any judgment to be granted against it to remain outstanding for a period of more than 21 (twenty one) Business Days from the date on which Client first becomes aware of the judgment, provided that, if within such 21 (twenty one) Business Day period, Client takes steps to have the judgment set aside or appeals against the judgment (and thereafter pursues such steps with due vigilance), then the 21 (twenty one) Business Day period shall commence on the date on which the judgment becomes final;
12.1.3. does or allows to be done anything that might prejudice Kazang’s rights under this Agreement; or
12.1.4. commits a breach of the Agreement and fails to remedy such breach within the period specified in the Agreement,
Kazang shall be entitled, without prejudice to any of its rights in law:
a) on written notice to the Client, [a] to claim specific performance of this Agreement by the Client, or [b] to immediately cancel this Agreement with respect to the Client; and
b) to claim immediate payment of all amounts payable in terms of this Agreement, if applicable; and
c) without prejudice to any of its other rights in law, and in any event to claim damages from the Client.
12.2. In the event that the Master Agreement is terminated, this Agreement shall automatically terminate upon date of termination of the Master Agreement. Kazang shall afford the Client timeous notice in the event of termination of the Master Agreement, if possible.
13. CONSEQUENCES OF TERMINATION
13.1. Upon termination of this Agreement for any reason, the Client shall:
13.1.1. Immediately cease to use the Connectr; and Kazang and/shall be entitled (but not obliged) to immediately and by prior arrangement with the Client (which shall not unreasonably withhold or delay providing such consent) remove the Connectr from the Premises and Client shall be obliged to provide reasonable access and assistance for such removal.
13.2. Should Client fail to facilitate the return of the Connectr or any part thereof to Cash Connect or Kazang in accordance with the provision set out in clause 13.1.1, then Kazang ’s auditor shall, acting as expert and not arbitrator, forthwith determine (the “Determination”) the fair replacement value, including all such associated fees and costs (as advised by Kazang) of such non-returned Connectr and the Determination shall, in the absence of bad faith or manifest error or fraud, be final and binding on Client.
13.3. Kazang shall deliver to the Client the Determination, and the Client shall be obliged within 14 (fourteen) Business Days of receipt of the determination and written demand therefore from Kazang, to make payment to Kazang of the amount of such replacement value so determined.
14. JURISDICTION OF MAGISTRATE’S COURT
The Client hereby consents to the non-exclusive jurisdiction of the Magistrates’ Court having jurisdiction over its person, in respect of any legal proceedings instituted against it by Kazang arising out of or in connection with this Agreement.
15.1. The Parties choose as their domicilium citandi et executandi (“domicilium”) for the purpose of the giving of any notice, the serving of any process and for any other purpose arising from this Agreement, the following: –
15.1.1. Kazang at 5 on Century Drive, Century City, 7441; marked for the attention of Legal; and
15.1.2. the Client at the physical address, facsimile number and email address set out in the Signature Schedule
15.2. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given:
15.2.1. on delivery, if delivered by hand to the Party’s domicilium;
15.2.2. on dispatch, if sent to that Party’s telefax number or email address; and
15.2.3. on the 10th (tenth) day following posting thereof by registered mail to the Party’s chosen domicilium.
15.3. Either Party may designate a different address in the Republic of South Africa as its domicilium and/or a different facsimile number at which it will receive notices hereunder, by written notice given to the other Party in accordance herewith.
16. FORCE MAJEURY
If Cash Connect and/or Kazang is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by any cause beyond the reasonable control of Kazang and/or Cash Connect, including by illustration but without limitations, acts of God, civil commotion, riots, insurrection, acts of government, fire, explosion, the elements, epidemics, pandemic, governmental embargoes, acts or omissions of the Client, third party non-performance, failure or malfunction of computer or telecommunications hardware, equipment or software, strikes, labour disputes, war, fire or government regulations or like causes (“force majeure”), Cash Connect and/or Kazang shall, to the extent so prevented, be relieved of its obligations hereunder during the period of such events and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage either general, special or consequential which the Client may suffer due to or resulting from such delay or failure.
17. GENERAL
17.1. This Agreement constitutes the sole record of the agreement between the Parties with regard to the subject matter thereof. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
17.2. No addition to, variation of or agreed cancellation of this Agreement including this clause shall be of any force or effect unless in writing and signed by on behalf of the Parties.
17.3. No relaxation or indulgence, which any Party may grant to the other including in respect of this clause, shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which may arise in the future.
17.4. A certificate under the hand of any director or manager of Kazang, whose appointment it shall not be necessary to prove, in respect of any indebtedness of Client under this Agreement or in respect of any other fact shall be prima facie evidence of Client’s indebtedness to Kazang and/or such other facts.
17.5. Client shall not be entitled to delegate, outsource, transfer, cede or assign all or any of its rights and/or obligations under this Agreement without Kazang’s prior written consent.
17.6. Kazang shall be entitled to delegate, outsource, transfer, cede and/or assign all or any of its rights and/or obligations under this Agreement and Cash Connect shall be entitled to transfer ownership of the Connectr to any one or more persons, despie any resultant splitting of claims against the Client, and upon transfer of ownership of the Connectr to any third party, the Client undertakes to hold the Connectr for and on behalf of that third party.
