Metal Management Solutions – General Terms and Conditions

 

Introduction and Scope of Services

 

These General Terms and Conditions (“Terms”) apply to all services and product provided by K2014107940 (Pty) Ltd and its subsidiaries, collectively referred to as the MMS Group of Companies under the holding company K2014107940 (Pty) Ltd, trading as Metal Management Solutions (“MMS,” “we,” or “us”) to the client (“Client” or “you”). MMS offers technology, advisory, and operational support services, including but not limited to metallurgical services, software configuration and licensing (including Software-as-a-Service or “SaaS”), data hosting, analytics, training, systems integration, and ongoing support (collectively, the “Services”). These Terms, together with any engagement letter, proposal, Statement of Work (SOW), or similar project-specific agreement (collectively, the “Contract”), constitute the entire agreement between MMS and the Client for the Services. In the event of any conflict between these general Terms and any specific provisions in an engagement letter, SOW or separate master service agreement, the terms of the engagement letter, MSA or SOW shall prevail to the extent of the conflict. No amendment or addition to the Contract shall be binding unless in writing and signed by authorized representatives of both MMS and the Client.

 

1. Responsibilities of the Client

 

To ensure a successful engagement, the Client agrees to the following obligations:

 

1.1 Retention of Decision Authority: The Client retains all responsibility for decisions and actions regarding its business or operations. MMS will not assume management responsibilities nor make operational decisions on the Client’s behalf. All final judgments and business decisions remain with the Client.

 

1.2 Full Cooperation and Information Provision: The Client will timely, fully, and accurately disclose all information and material reasonably required by MMS to perform the Services. The Client will respond promptly to MMS’s requests for information or decisions and will designate appropriate personnel to work with MMS. In particular, the Client should assign a capable project manager or internal “project champion” to act as primary liaison with MMS, coordinate internal stakeholders, and facilitate communication and decision-making.

 

1.3 Stakeholder Alignment: The Client shall ensure that its relevant stakeholders (employees, contractors, and any third parties under its control) cooperate effectively with MMS. This includes timely attendance at scheduled meetings or training sessions, providing constructive feedback, and promptly providing approvals or sign-offs when required. The Client agrees to centralize project communications through the designated project contact to avoid conflicting instructions or duplication of effort.

 

1.4 Adequate Resources: The Client will make available all facilities, system access, personnel time, and other resources as reasonably required for MMS to perform the Services. The Client is responsible for ensuring that any necessary third-party software licenses, hardware, network access, data quality, and system environments under its control are in place and operational so as not to delay the project. Any delays or deficiencies on the Client’s side in meeting these obligations will not excuse the Client’s performance or payment obligations under this Contract and may result in schedule adjustments as described in these Terms.

 

1.5 Timely Actions: The Client acknowledges that any delay in performing its obligations (such as delays in providing information, feedback, or approvals) can impact project timelines, deliverables, or costs. MMS will not be liable for any failure to meet a timeline or milestone to the extent such failure is caused by Client delays or omissions. If the Client’s delay or failure to perform its obligations causes MMS to incur additional costs or to reallocate resources, MMS reserves the right to equitable schedule and fee adjustments (including charging for idle time or additional work necessary to accommodate the delay), provided that MMS notifies the Client of such impacts.

 

1.6 Scheduled Engagements: Once the parties mutually schedule an engagement (such as a workshop, training, or meeting), MMS will reserve personnel for that time. If the Client needs to reschedule, it must provide reasonable advance notice (at least two weeks when possible). Postponement of key engagements by more than one week without MMS’s consent may be treated as a Client-caused delay. If the Client fails to attend or cancels a scheduled session on short notice, MMS will be entitled to record the time and resources allocated for that session as time worked on the project and invoice the Client accordingly, as such missed sessions still incur costs.

 

1.7 Overall Collaboration: MMS and the Client shall engage in a structured, integrated project management approach designed to ensure proactive, transparent, and continuous communication throughout the project lifecycle. MMS will develop and maintain a comprehensive project schedule—based on a robust Work Breakdown Structure (WBS) and critical path analysis—with weekly progress updates, bi-weekly formal reports, and scheduled review meetings to monitor key milestones and manage scope changes. The Client agrees to promptly raise any concerns or deviations from the agreed execution plan so that they can be addressed swiftly through a formal change management process. Both parties commit to operating in good faith and in accordance with the objective professional standards expected, achievement of deliverables to meet the agreed specifications and that project objectives are achieved on schedule.

 

2. Responsibilities of MMS

 

MMS agrees to perform the Services with due professional care and skill, consistent with applicable industry standards and in accordance with the scope and requirements agreed in the engagement documentation. Key commitments and limitations on MMS’s responsibilities are as follows:

 

2.1 Service Quality: MMS will assign competent personnel and use appropriate resources to carry out the Services. We are committed to delivering high-quality work that meets the Client’s needs. If at any time the Client is dissatisfied with any aspect of MMS’s services, the Client should promptly inform the MMS project director or engagement leader. MMS will address any concerns in good faith and make commercially reasonable efforts to remedy issues to the Client’s satisfaction.

 

2.2 Limitations on Scope: MMS will not implement or monitor the Client’s operations or business processes unless such tasks are explicitly included in the scope of Services. Any suggestions or advice we provide are not a substitute for the Client’s own operational management. MMS will only perform tasks and responsibilities that are expressly defined in the agreed scope or as subsequently agreed in writing.

 

2.3 Reliance on Client Information: MMS may, at its discretion, review or test certain information or records provided by the Client for accuracy or completeness; however, MMS is entitled to rely on all information and data provided by the Client as being complete, accurate, and provided in good faith. The Client acknowledges that MMS’s deliverables and advice are dependent on the accuracy and completeness of information, assumptions, and representations made by the Client. MMS does not assume responsibility for any errors or omissions in deliverables that result from inaccurate, misleading, or incomplete information supplied by the Client or by third parties acting on the Client’s behalf.

 

2.4 No Third-Party Use of Advice: MMS’s advice, analysis, reports, software, and other deliverables are provided for the Client’s internal use and for the purposes stated in the applicable SOW or report. Unless otherwise agreed in writing, MMS’s deliverables shall not be disclosed to or relied upon by any third party. (See Section 8 on Intellectual Property and Section 11 on Confidentiality for additional restrictions on disclosure of deliverables.) MMS accepts no duty of care or liability to any third party who obtains access to our deliverables through the Client or otherwise, and the Client agrees to indemnify MMS against any third-party claims arising from the unauthorized disclosure or use of our deliverables (except to the extent finally determined to have resulted from MMS’s own fraudulent or dishonest acts).

 

2.5 Compliance and Ethics: MMS will comply with applicable laws and professional regulations in performing the Services. MMS personnel will also adhere to relevant professional codes of conduct. If any MMS employee or agent must disclose information to a professional or regulatory body as required by membership rules or law (for example, as part of a quality review or ethical obligation), such disclosure is permitted notwithstanding any confidentiality obligations, provided that only the minimum necessary information is disclosed and, where lawful, the Client is informed of such disclosure.

 

3. Fees, Invoicing and Payment Terms

 

MMS’s fees and payment terms are designed to be fair, transparent, and flexible to fit different project arrangements. All fees and charges are exclusive of any taxes (such as, but not limited to, VAT or withholding taxes), which will be added as required by law. The Client shall be responsible for any applicable taxes. Key payment terms are as follows:

 

3.1 Fee Structure: MMS’s fees will be determined according to the scope of work, the level of skill and effort required, and the time spent by MMS personnel. We may use a combination of fee models (e.g., fixed fees, time-and-materials rates, or milestone-based fees) as specified in the engagement letter or SOW. Unless otherwise specified, out-of-pocket expenses (such as travel, accommodation, and third-party costs incurred on behalf of the Client) are additional to the quoted fees and will be charged at cost. MMS will inform the Client of any significant expected expenses in advance. The Client agrees to reimburse all such reasonable expenses. For substantial third-party costs (for example, costly software licenses, hardware purchases, or international travel), MMS may request the Client to pay these costs in advance or directly to the vendor, or to provide a deposit, as a condition of incurring those expenses.

 

3.2 Mobilisation Fee: MMS may require an upfront mobilisation fee at the start of an engagement to cover initial resource allocation and project setup costs. If a mobilisation or upfront fee is applicable, the amount or percentage (e.g. a percentage of the total project fee) will be specified in the SOW or invoice upon commencement. This mobilisation fee is typically invoiced upon contract signature or project kick-off and must be paid as per the agreed payment terms to allow MMS to mobilize the necessary team and resources. MMS reserve the Right to delay project kick-off or mobilisation of teams until such funds have been received,

 

3.3 Invoicing Frequency: MMS will invoice the Client in accordance with the schedule or milestones set out in the SOW or engagement letter. Common practices may include: an initial invoice for the mobilisation fee or project kick-off, periodic invoices (monthly or tied to milestone completion) for work in progress, and a final invoice upon completion of the Services or final deliverable (for example, upon User Acceptance Testing sign-off or project closure). For ongoing or subscription services (such as SaaS subscriptions, support, or hosting), MMS may invoice fees on a recurring periodic basis (e.g. annually in advance), as specified in the SOW. Each invoice will describe the Services or milestone covered by that invoice. MMS will maintain transparent records of work completed corresponding to each billable amount, and will provide reasonable documentation or timesheets if requested to substantiate an invoice.

 

3.4 Payment Due Date: All invoices are due and payable within thirty (30) calendar days from the invoice date, unless otherwise expressly agreed in a particular SOW or engagement letter. Payments shall be made in the currency stated on the invoice and via the method specified (typically electronic bank transfer to the account designated by MMS). Timely payment is essential for the continuity of Services. If the Client anticipates any issue with payment timing, it must notify MMS as soon as possible and both parties may discuss and document any approved variation to the payment schedule and agree revised terms in writing.

 

3.5 Late Payments and Interest: Any amount that remains unpaid beyond the 30-day term will be considered overdue. MMS reserves the right to charge interest on overdue amounts at a rate of 2% per month (24% per annum), calculated on a day-to-day basis from the date the payment became due until the date payment is received in full. Interest may be compounded monthly. The right to charge interest is in addition to any other rights and remedies MMS may have under this Contract or at law for late payment.

 

3.6 Suspension of Services for Non-Payment: If an invoice remains unpaid for more than thirty (30) days after its due date (i.e. more than ~60 days from the original invoice date), MMS may suspend further performance of the Services until all overdue invoices are paid in full. In the event of such suspension, MMS will not be liable for any consequences or delays in the project arising from a non-payment related suspension, including losses from the revoking of access to software, hosting services, loss of data or operational impact. Once the Client has fully paid the outstanding amounts (including any accrued interest), MMS will resume the Services as soon as reasonably possible. The schedule for deliverables may be adjusted to account for the period of suspension plus a reasonable remobilization period. MMS will make reasonable efforts to give the Client advance warnings (such as payment reminders and a formal notice before suspension) to avoid any disruption, and the remedy of suspension will be used as a last resort.

 

3.7 Additional Remedies for Late Payment: Continued failure to pay fees when due constitutes a material breach of the Contract. Without prejudice to the suspension right above, MMS shall be entitled to recover from the Client all costs of collection (including reasonable attorneys’ fees) for overdue amounts. If the Client’s payment delay exceeds a significant period (for example, more than 90 days overdue) or indicates unwillingness to pay, MMS may terminate the Contract for breach pursuant to the termination provisions below. Conversely, if the Client in good faith disputes an invoice or portion thereof, the Client must promptly notify MMS in writing before the due date and pay any undisputed portion. The parties will seek to resolve the invoice dispute amicably, and MMS will not suspend services for non-payment of the disputed portion while the dispute is being resolved, provided the Client has paid all undisputed amounts.

 

3.8 Taxes: All fees, rates, and charges by MMS are exclusive of Value-Added Tax (VAT) and any other applicable taxes. Where any tax is chargeable, MMS will add such tax to its invoices at the prevailing rate as required by law. The Client shall furnish any applicable tax exemption documentation if it is entitled to an exemption, otherwise MMS will assume taxes are due.

 

4. SaaS Services and Service Level Agreement (SLA) Integration

 

4.1 For all SaaS services provided by MMS, including but not limited to cloud-hosted or on premise solutions and associated support services, the specific performance, operational, and support parameters—including uptime guarantees, response times, maintenance schedules, data backup, security, and recovery protocols—are usuallly set forth in a separate Service Level Agreement (“SLA”). Where applicable, the SLA is incorporated herein by reference and forms an integral part of this Contract. In the event of any conflict between these General Terms and the SLA, the provisions of the SLA shall prevail solely in relation to the SaaS services covered therein.

 

4.2 If commencing use of MMS’s SaaS services, the Client expressly acknowledges and agrees to be bound by the terms of the SLA in addition to these General Terms and Conditions.

 

4.3 In the absence of a specific duly authorised service level agreement between MMS and the Client, the standard SLA terms apply as outlined in Schedule A.

 

5. Changes in Scope and Project Delays

 

MMS recognizes that project requirements may evolve. The following terms apply to changes and delays:

 

5.1 Change Requests and Additional Work: If the Client requests any change to the scope of Services or deliverables (including any new features, additional tasks, or changes that go beyond the originally agreed scope), MMS will assess the impact of the change on the project timeline, fees, and any other terms. The parties shall document agreed changes through a written change order or amendment to the SOW, including any adjustments to fees or schedule. MMS is not obliged to perform out-of-scope work or significant revisions without such written agreement on scope and compensation. Minor adjustments and clarifications that do not materially affect cost or time may be handled more informally, but significant changes require formal agreement.

 

5.2 Acceptance Testing and Deemed Acceptance: For deliverables that require formal acceptance testing (for example, software implementations or reports), the following process will apply unless otherwise specified in the SOW: MMS will notify the Client in writing when a deliverable or service milestone is ready for review/testing. The Client shall then conduct any agreed acceptance tests or reviews within a reasonable period – by default, within thirty (30) days from the date of notice of readiness (the “Acceptance Testing Period”). The Client shall provide MMS with either (a) written acceptance or sign-off, or (b) a written report of any material deficiencies or non-conformities in the deliverable, by the end of the Acceptance Testing Period. If the Client fails to provide any written feedback within the Acceptance Testing Period, or if the Client begins using the deliverable or software in a live production environment, then the deliverable shall be deemed accepted by the Client as of the date of first productive use or the end of the 30-day period, whichever occurs first. Once a deliverable is accepted (or deemed accepted), any further changes will be treated as a new request or scope change. MMS will then be entitled to issue any pending invoice associated with that deliverable or milestone, and the Client shall promptly pay such invoice per the agreed payment terms.

 

5.3 Service Level Agreement (SLA) Activation (for SaaS/Software Services): If the Services include the provision of software or a technology platform (for example, a SaaS solution) with ongoing service levels or support, the commencement of any ongoing subscription fees or SLA obligations shall begin on the SLA Activation Date. Unless otherwise defined in the SOW, the “SLA Activation Date” is the earlier of: (a) the Commissioning Date, which is the date on which the software/system is installed or made operational for use in the Client’s production environment (regardless of whether formal user acceptance testing is signed off); or (b) the date the Client first uses the software or deliverable in a live operational or production capacity; or (c) the date on which the Acceptance Testing Period for that software deliverable has lapsed without a rejection by the Client (i.e., deemed acceptance). From the SLA Activation Date, any agreed service levels, support services, and corresponding periodic fees will formally commence. The Client’s obligation to pay subscription or service fees is not dependent on the Client’s internal readiness or rollout schedule if the software is ready for use and any delay is on the Client’s side. In other words, if MMS has delivered a functioning software solution ready for production use, the Client cannot unilaterally postpone the start of subscription/SLA fees by delaying deployment or withholding acceptance for reasons not related to a failure to meet acceptance criteria.

 

 

5.4 Client Delays in Commissioning: The Client acknowledges that MMS’s ability to deliver and commission software or other deliverables depends on the Client fulfilling certain prerequisites (such as providing required data, system access, infrastructure, or timely testing feedback). If MMS is prepared to deliver or has delivered the software/services on time but commissioning or go-live is delayed due to the Client’s failure to meet its obligations (for example, the Client’s environment is not ready or the Client delays testing beyond the agreed period), the SLA Activation Date shall nonetheless be deemed to have occurred, and MMS will be entitled to begin invoicing any recurring fees, as if the system were live, from that date. MMS will continue to cooperate with the Client to complete any remaining deployment steps, but such delays will not defer the start of the term of service or payment.

 

5.5 Limited Rounds of Revisions: During any acceptance testing or review period, the Client may identify defects or change requests. MMS will address any bona fide defects or non-conformance with specifications without additional charge. However, the Client is expected to consolidate its feedback and requested changes within a reasonable number of review iterations (for example, up to three rounds of feedback, unless otherwise agreed). Repeated or extensive change requests that exceed the agreed scope or iterations may be subject to additional fees and extended timelines, to be agreed in a change order.

 

5.6 Monthly Progress Reviews: For longer projects, MMS and the Client may conduct regular progress reviews (e.g., monthly) to track completed tasks, upcoming deliverables, and any risks or delays. These reviews, if conducted, will be documented and shared with the Client to ensure transparency. If any delays or issues attributable to the Client are identified, the parties will discuss mitigation, and MMS may adjust the project timeline as needed. Documentation of client-caused delays will be important in evaluating any requests for timeline extensions or fee adjustments.

 

5.7 Impact of Delays on Deadlines: MMS will use its best efforts to meet agreed deadlines and milestones. The Client agrees that if there are delays caused by circumstances outside of MMS’s control (including but not limited to Client’s failure to perform responsibilities, scope changes, or force majeure events as described in Section 15), such deadlines shall be reasonably extended. MMS will inform the Client as soon as it becomes evident that a delay might occur, and will propose a revised schedule. If delays cause MMS resources to be idle or to remobilize at a later time, MMS may charge for such downtime or remobilization costs, provided such charges are reasonable and have been discussed with the Client.

 

6. Intellectual Property Rights

 

This section outlines the ownership and usage rights for intellectual property (IP) that may be used or created in the course of providing the Services:

 

6.1 MMS Pre-existing IP: MMS retains all rights, title, and interest in and to all intellectual property that MMS owned or developed prior to the engagement (“Pre-existing IP”), as well as any general know-how, methodologies, skills, tools, software, or techniques that are developed or improved over the course of the project that are of general applicability to MMS’s business. Nothing in this Contract transfers ownership of MMS’s Pre-existing IP to the Client.

 

6.2 Deliverables and Work Product: The specific deliverables produced for the Client (such as reports, designs, software configurations, or other work product described in the SOW) will be provided to the Client for its internal use. Ownership of Intellectual Property in those deliverables will be as agreed in the SOW or engagement letter. If not otherwise explicitly agreed, then by default: (a) any of the Client’s data, content, or proprietary materials that are used in the deliverables remain the property of the Client; (b) the underlying software, code, processes, templates, algorithms, and general intellectual property embodied in the deliverables remain the property of MMS (or its licensors), except to the extent such materials were originally provided by the Client. MMS grants the Client a non-exclusive, non-transferable, perpetual license to use and copy the deliverables and any MMS intellectual property contained therein solely for the Client’s internal business purposes and for the purposes for which they were delivered. The Client may not resell, sublicense, or distribute MMS deliverables to third parties or use them to provide services to third parties, unless this is expressly permitted in the SOW or by separate written agreement with MMS.

 

6.3 Client’s IP and Materials: Similarly, the Client retains ownership of all intellectual property and materials it provides to MMS in connection with the Services (for example, the Client’s data, logos, trademarks, documents, and any of the Client’s proprietary processes). The Client grants MMS a limited license to use such Client materials solely for the purpose of performing the Services. MMS will not use the Client’s IP for any other purpose without the Client’s written consent.

 

6.4 Third-Party Materials: If MMS incorporates any third-party software, libraries, or intellectual property (for example, open source components or licensed tools) into the deliverables, MMS will either have the right to do so and to grant the Client a sublicensed right of use, or MMS will inform the Client of any Client responsibilities to obtain necessary licenses. MMS will indemnify the Client for any third-party IP infringement claims arising from MMS’s provision of the Services or deliverables, provided that MMS’s liability for such indemnification is subject to the limitations in Section 10 and the infringement was not caused by Client’s misuse or modification of the deliverable. Conversely, the Client warrants that any materials, data, or instructions it provides to MMS will not infringe any third-party rights; the Client agrees to indemnify MMS against any third-party claims that result from MMS following the Client’s instructions or using materials provided by the Client.

 

6.5 Rights to Use Experience: Notwithstanding anything to the contrary, MMS shall have the right to use any general knowledge, skills, experience, or know-how (including ideas, concepts, processes, and techniques) that are acquired or developed in the course of performing the Services, for any purpose, provided that in doing so MMS does not disclose the Client’s confidential information or violate any applicable intellectual property rights of the Client. MMS may also reference and describe in its marketing materials the nature of the Services provided to the Client and the fact that the Client is an MMS client, as an indication of MMS’s experience, unless the Client specifically requests in writing that it not be referenced.

 

7. Confidentiality

 

Both parties acknowledge that they may be exposed to the other party’s confidential and proprietary information during the engagement. “Confidential Information” means any non-public information, whether written, electronic, or oral, disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the context of disclosure. This includes, without limitation, business plans, financial data, technical information, client or supplier lists, trade secrets, software (including source code), and any work product or deliverables of the Services. The terms of this Contract and any SOW are also considered Confidential Information.

 

Each party agrees to the following:

 

7.1 Use and Non-Disclosure: The Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purpose of fulfilling its obligations under this Contract and shall not use or exploit such information for its own benefit or the benefit of anyone outside this engagement. The Receiving Party shall not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent. Disclosure within the Receiving Party’s own organization shall be limited to those employees or agents who need to know the information for the purposes of this engagement and who are bound by obligations of confidentiality no less restrictive than these Terms. The Receiving Party will protect Confidential Information using the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than a reasonable standard of care.

 

7.2 Exceptions: The above obligations of use and non-disclosure do not apply to information which: (a) is or becomes publicly available through no breach of the Contract by the Receiving Party; (b) was already lawfully in the Receiving Party’s possession without obligation of confidentiality prior to receiving it from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without restriction and without breach of any duty to the Disclosing Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

 

7.3 Permitted Disclosures: Notwithstanding any other provision, either party may disclose the other’s Confidential Information to the extent required by law, regulation, or court order, provided that (to the extent legally permitted) the Receiving Party gives prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or otherwise contest the disclosure. Also, MMS may disclose relevant Client information to its insurers, external auditors, or professional advisors on a need-to-know basis, under appropriate confidentiality obligations, for purposes of insurance coverage, audit, or professional advice. Additionally, MMS and its personnel may disclose Client information if required by the ethical or professional standards of any legal or accounting body applicable to MMS (for example, as part of an external quality review or investigation by a professional institute).

 

7.4 Return or Destruction: Upon termination of the Contract or upon written request of the Disclosing Party, the Receiving Party will promptly return or destroy (at the Disclosing Party’s option) all materials embodying Confidential Information of the Disclosing Party that are in the Receiving Party’s possession or control, and certify in writing that it has done so, except to the extent that (i) the Receiving Party is required by law or its internal compliance policies to retain copies for a certain period (e.g. archival backups or record retention requirements), or (ii) the Confidential Information is contained in routine backup archives that are not readily separable (in which case the Receiving Party will continue to protect such information until the archives are overwritten or destroyed).

 

7.5 Confidentiality of Contract and Deliverables: The Client agrees that it will not provide MMS’s advice, reports, software, or other deliverables to any third party or include them (or a summary of them) in any public document without MMS’s prior written consent, except as required by law or regulatory authorities. If the Client is permitted by MMS to share any deliverable or report with a third party, the Client must ensure the deliverable is shared in full (not excerpts) and accompanied by any disclaimers or notices of proprietary rights that MMS included with the deliverable.

 

7.6 Publicity and Reference: Subject to the Client’s prior approval (which shall not be unreasonably withheld), MMS may cite the Client’s name and a factual description of the Services in MMS’s marketing materials or client lists. MMS will not disclose any sensitive details or results beyond the general nature of the project. This clause is not intended to be an endorsement, only a reference of experience.

 

7.7 Survival: The obligations of confidentiality in this section shall survive the completion or termination of the Contract for a period of at least five (5) years from the date of disclosure of each piece of Confidential Information, or indefinitely in the case of any trade secrets or personal data, as required by law.

 

8. Data Protection and Privacy

 

Each party agrees to comply with applicable data protection and privacy laws in relation to any personal information processed under this Contract. In particular, the parties acknowledge the applicability of South Africa’s Protection of Personal Information Act, 4 of 2013 (“POPIA”) and, to the extent applicable, the EU General Data Protection Regulation 2016/679 (“GDPR”) to the handling of personal data.

 

8.1 MMS as Responsible Party/Operator: The Client may from time to time disclose to MMS certain personal information (as defined in POPIA) or personal data (as defined in GDPR) relating to the Client’s employees, customers, or other identifiable individuals, for the purpose of MMS performing the Services. In respect of such data, the Client hereby warrants that it has the legal right to collect and provide that data to MMS for the purposes of the Services (for example, necessary consents from data subjects or other legal basis). MMS will act as an “operator” (processor) on behalf of the Client or as a co-responsible party, as appropriate under POPIA/GDPR, and will: (a) use personal data only for purposes of performing its obligations and as instructed by the Client, (b) implement reasonable technical and organizational measures to protect personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, or disclosure, (c) hold any personal data in confidence and ensure its personnel and any approved subcontractors do the same, and (d) notify the Client without undue delay if MMS becomes aware of a data breach involving the Client’s personal data. MMS will also assist the Client (at the Client’s cost, if the assistance is significant) in complying with the Client’s own obligations to data subjects or regulators (such as assisting with responding to data subject access or deletion requests, or regulatory inquiries), to the extent MMS is able given the nature of the processing.

 

8.2 Cross-Border Transfers: The Client understands that MMS may perform some of the Services or store data using systems and personnel located outside of South Africa (for example, cloud hosting or expatriate consultants). MMS will not transfer personal data across borders unless such transfer is permissible under POPIA and GDPR (for instance, by transferring to countries with adequate data protection laws or subject to appropriate safeguards like standard contractual clauses). By engaging MMS, the Client authorizes MMS to transfer and process personal data outside South Africa as needed to provide the Services, in compliance with these requirements.

 

8.3 MMS Privacy Policy: MMS maintains a Privacy Policy (available upon request or on our website) that outlines how we collect, use, disclose, and protect personal information in the course of our business, including through our software products and website. To the extent the Services involve MMS collecting personal data directly from individuals (for example, if individuals interact with an MMS SaaS platform), MMS will do so in accordance with its Privacy Policy and applicable law.

 

8.4 Client’s Obligations: The Client remains responsible for its own compliance with data protection laws as a responsible party (controller). For example, if the Client provides MMS with personal data, the Client should ensure it has provided any required notices to, and obtained any required consents from, the individuals whose data is shared. The Client must not require MMS to process any personal data that is not necessary for the engagement or that would violate any law or these Terms. If the Services involve MMS accessing or interfacing with any of the Client’s IT systems or data repositories that contain personal data, the Client will inform MMS of any special security or data handling requirements that apply to such systems/data.

 

8.5 POPIA and GDPR Alignment: Both parties agree to negotiate in good faith any additional agreements or addenda (such as a detailed data processing agreement) that may be reasonably required under POPIA, GDPR, or other data protection laws for specific Services, especially if sensitive personal data or large volumes of personal data are involved. Unless otherwise agreed, MMS will retain personal data obtained during the project for the duration of the Contract and thereafter only as needed for legal, archival, or backup purposes, or as required by law (see also Section 12 on Retention of Records). After such period, personal data will be securely deleted or anonymized.

 

8.6 Breach and Indemnity: Each party will indemnify the other for any fines, penalties, or third-party claims arising from the indemnifying party’s breach of this Section 7 or violation of data protection laws, subject to the limitations of liability in Section 10. This means, for example, that MMS will bear responsibility (within agreed liability limits) if it mishandles personal data in breach of these Terms, and the Client will be responsible if it failed to obtain proper consent or authority to provide certain data to MMS and that leads to a claim.

 

8.7 Electronic Communications Disclaimer: (See also Section 9 below on Electronic Communications.) The parties acknowledge that standard email or internet communications may involve the transfer of personal data over networks that we do not control. Each party will take reasonable steps to secure personal data in transit (such as using encryption where appropriate), but neither party can guarantee absolute security in electronic communications.

 

9. Indemnities

 

This section addresses the allocation of certain risks to prevent either party from bearing unfair liability for issues not caused by that party. The Client and MMS agree on the following indemnification obligations:

 

9.1 Client’s Indemnity in Favor of MMS: Except to the extent caused by MMS’s own criminal or fraudulent conduct (as addressed below), the Client shall indemnify, defend, and hold harmless MMS and its directors, employees, agents, subcontractors, and affiliated companies (each an “MMS Indemnitee”) from and against any and all claims, demands, lawsuits, damages, losses, and expenses (including reasonable legal fees) asserted by any third party arising out of or in connection with: (a) the Client’s use of any deliverables or Services provided by MMS (for example, claims by a third party that the Client’s use of software provided by MMS caused damage to a third party, or a third party was harmed due to decisions or actions the Client took based on MMS’s advice); (b) any breach by the Client of the Contract or violation of law by the Client in connection with the Services (for example, if the Client provides MMS with data illegally obtained or violates a license of a third-party software that MMS is asked to use); or (c) any negligent or wrongful act or omission of the Client, its employees, or agents that contributes to any injury, damage, or loss. This indemnity means the Client will reimburse MMS for any third-party amounts that MMS is legally obligated to pay and any reasonable costs of defense, provided that MMS (i) promptly notifies the Client of the claim (to the extent legally permitted), (ii) allows the Client to control the defense and settlement of the claim (except that the Client may not settle any claim in a manner that imposes liability or admission of fault on MMS without MMS’s consent), and (iii) cooperates with the Client (at the Client’s expense) in the defense of the claim.

 

9.2 MMS’s Indemnity in Favor of Client: MMS’s services are professional in nature, and aside from IP infringement which is addressed in Section 6, MMS generally does not indemnify the Client for third-party claims because MMS’s liability to the Client is directly capped and limited in Section 10. The Client’s sole remedies for any breach or failure by MMS are those expressly provided in this Contract. However, to the extent (if any) that South African law does not permit the Client to fully indemnify MMS for third-party claims that were predominantly caused by MMS’s acts, MMS shall indemnify the Client for that portion of any third-party claim or loss that a court of competent jurisdiction finally determines resulted directly from MMS’s own criminal acts, gross negligence, dishonest conduct, or fraud in connection with the Services. In no event will MMS indemnify the Client for third-party claims arising from mere negligence, mistake, or contract breach by MMS – any such liability of MMS to the Client is subject to the limitations in Section 10 and not a separate indemnity.

 

9.3 Injuries on Site: If MMS personnel are working at the Client’s premises, MMS shall maintain appropriate workers’ compensation (or equivalent) insurance as required by law for its employees. The Client, to the extent it controls the premises, shall indemnify and hold MMS harmless from any claims arising out of any unsafe conditions at the Client’s premises that are not due to MMS’s own actions. Conversely, MMS shall indemnify the Client for any claims by MMS’s own personnel for injury or illness arising in the course of their work to the extent required by applicable occupational injury laws (thus the parties each handle their own employees’ claims).

 

9.4 Notice and Mitigation: An indemnified party shall take reasonable steps to mitigate any loss or damage that might give rise to an indemnification claim under this Section. The failure to mitigate damages, to the extent it prejudices the indemnifying party, may reduce the amount of the indemnity obligation accordingly.

 

9.5 No Implied Indemnities: Except as expressly provided above or elsewhere in this Contract, neither party indemnifies the other. Each party’s liability for its own breaches or negligence is governed by Section 10 (Limitation of Liability). The indemnities in this Section 8 are subject to the liability cap and exclusions in Section 10, except for damages or liabilities that are expressly excluded from the cap (if any).

 

10. Limitation of Liability

 

10.1 Cap on Liability: Notwithstanding any other provision of this Contract, MMS’s total aggregate liability to the Client for any and all claims, losses, or damages arising out of or relating to this Contract or the Services (whether in contract, delict (tort), breach of statutory duty, or otherwise) shall not exceed the total amount of fees (excluding VAT and expenses) actually paid by the Client to MMS in the twelve (12) months immediately preceding the event giving rise to the claim (or, if the cause of action occurred prior to twelve months of services, then the amount paid for the Services to date of the event). If the claim involves a specific project or SOW, MMS’s liability will be limited to the fees paid under that project or SOW in the last 12 months. For clarity, this liability cap is an aggregate cap for all claims in the aggregate and is not per-incident. The Client agrees that this cap on liability is reasonable given the fees charged by MMS and the risk allocation under the Contract.

 

10.2 Excluded Damages: In no event shall MMS (or its directors, employees, or agents) be liable to the Client for any indirect, incidental, consequential, special, punitive, or exemplary damages, or for any loss of profits, loss of revenue, loss of anticipated savings, loss of business opportunity, loss of goodwill, or loss of data, arising from or in connection with the Services or this Contract, even if MMS was advised of the possibility of such damages or such damages were reasonably foreseeable. This exclusion of certain damages applies regardless of the theory of liability (contract, tort, strict liability, or otherwise). The only damages MMS may be held liable for are the Client’s direct damages, subject to the overall cap above. “Direct damages” means the cost to the Client of actual quantifiable losses or harm caused directly by MMS’s breach of its obligations, as opposed to secondary or speculative losses.

 

10.3 Liability Carve-Out for Gross Misconduct: MMS is not seeking to exclude or limit liability for its own intentional misconduct or fraud. Therefore, nothing in this Contract shall operate to limit or exclude any liability of MMS for losses finally determined by a South African court to have resulted from MMS’s acts or omissions that are proven to be criminal, dishonest, or fraudulent in nature. In such cases, the above exclusions and cap may not apply to the extent they are prohibited by law. However, to the extent permitted by law, even in those circumstances MMS would not be liable for indirect or consequential losses unrelated to the direct harm caused by such wrongful conduct.

 

10.4 Apportionment of Fault: If more than one cause contributes to the loss or damage suffered by the Client, including any fault or negligence on the part of the Client or other parties, MMS’s liability will be limited to only that portion of the loss that a court allocates to MMS’s proportionate degree of fault. In other words, if the Client or any third party contributed to the loss, MMS will only be responsible for its relative share as determined by a court or arbitrator. This allocation principle is intended to have effect to the fullest extent permitted by South African law (including the Apportionment of Damages Act 1956, if applicable).

 

10.5 Third-Party Claims and No Personal Liability: The Client agrees that it will not bring any claim against any individual director, officer, employee, or subcontractor of MMS in their personal capacity with respect to the Services. Any claim the Client wishes to bring for compensable loss must be brought against MMS (the company) alone, and subject to the restrictions and limits of this Contract. Each of MMS’s employees, agents, and subcontractors is an intended beneficiary of this clause and may invoke these protections against personal liability. Furthermore, if any third party (such as the Client’s customer or partner) seeks to claim against MMS for something arising from the Services delivered to the Client, such claim will be subject to the same exclusions and limitations of liability stated in this Contract as if the third party were the Client. The total liability of MMS to all parties (Client and any third parties combined) shall not exceed the cap specified above.

 

10.6 Reliance on Client Information: MMS shall not be liable for any loss or damage caused by reliance on any information, materials, or instructions provided by the Client or on the Client’s behalf that are inaccurate, incomplete, or misleading. Similarly, MMS is not liable for any losses caused by the Client’s failure to perform its obligations or to fulfill assumptions or conditions agreed in the SOW. Any such contributing factors will relieve or proportionately reduce MMS’s liability for impacted deliverables. The Client is responsible for verifying that assumptions and prerequisites listed in the SOW or project plan are met.

 

10.7 No Additional Warranties: MMS will use reasonable skill and care in providing the Services, but MMS does not warrant or guarantee that the Services or deliverables will be completely error-free or will achieve any particular results that are outside the scope expressly committed to in writing. Except as expressly stated in this Contract, all other representations or warranties, whether express or implied, including any implied warranties of merchantability or fitness for a particular purpose, are hereby disclaimed to the maximum extent permitted by law. The Client acknowledges that in entering into this Contract, it has not relied on any statements, warranties, or representations not explicitly recorded in these Terms or the SOW.

 

10.8 Maximum Claims Period: To promote prompt resolution of any issues, the Client agrees that any claim or cause of action against MMS arising out of or related to the Services or this Contract must be formally commenced (by service of legal process) within two (2) years after the Client becomes aware (or ought reasonably to have become aware) of the facts giving rise to the claim, and in any event no later than three (3) years after the completion of the Services or deliverable in question. Any claims not brought within this period shall be conclusively time-barred. This clause may shorten, but does not extend, any otherwise applicable statute of limitations.

 

10.9 Insurance and Liability: The Client acknowledges that MMS has made insurance arrangements to cover certain liabilities and risks relating to the Services. Specifically, MMS maintains at the date of this Contract the following insurance policies: Cyber Liability Insurance with a limit of USD $1,000,000; Commercial General Liability Insurance with a limit of USD $2,000,000; and Professional Indemnity (Errors & Omissions) Insurance with a limit of USD $4,000,000. MMS will furnish certificates of insurance as proof of coverage upon request. These coverage amounts are not necessarily reflective of actual liability under this Contract, which remains capped as per the provisions above. Nothing in this Contract shall be construed as granting the Client rights to claim directly under MMS’s insurance policies (which are for MMS’s benefit and protection), nor does MMS’s carrying of insurance increase its assumed liability beyond what is agreed in this Contract. The Client acknowledges that it has had the opportunity to discuss and negotiate the liability limitations and finds them reasonable in light of the fees and alternatives.

 

11. Suspension and Termination

 

This section sets out the circumstances under which Services may be suspended or the Contract may be terminated, and the consequences of termination:

 

11.1 Suspension for Cause: As noted in Section 3, MMS may suspend Services in the event of non-payment by the Client beyond the grace period, after due notice. Additionally, MMS reserves the right to suspend performance if the Client is in material breach of its obligations (such as confidentiality or IP obligations, or if the Client’s actions or inactions are causing a serious security risk or legal compliance issue) and fails to cure that breach within a reasonable time after written notice. Suspension of Services is a temporary measure; MMS will lift the suspension once the issue is resolved to MMS’s reasonable satisfaction (for example, payment made, or breach cured). Suspension for cause shall not be considered a breach of contract by MMS, and the Client shall not be entitled to any refund or compensation for any period of suspension arising from the Client’s fault.

 

11.2 Mutual Termination Right (No-Fault): Unless otherwise stated in an applicable engagement letter or SOW, either party may terminate this Contract (and/or any specific SOW) for convenience by giving thirty (30) days’ prior written notice to the other party. The parties may also mutually agree in writing to terminate the Contract or a specific engagement at any time. Termination of the overall Contract will not automatically terminate any individual SOWs already in progress unless such notice specifically terminates those SOWs as well. Conversely, the termination of a particular SOW will not terminate the entire Contract or other ongoing SOWs unless specified. In all cases, these general Terms will continue to govern any Services performed up to the effective date of termination.

 

11.3 Termination for Breach: Either party may terminate this Contract (or an affected SOW) with immediate effect by written notice if the other party commits a material breach of the Contract and, if the breach is capable of remedy, fails to remedy it within fifteen (15) days after receiving written notice specifying the breach and requiring it to be remedied. In such case of termination for cause, the innocent party reserves all rights to seek damages or other relief in law or equity subject to the limitations of this Contract. Non-payment by the Client (that is not subject to a good faith dispute) or unauthorized use or disclosure of MMS’s intellectual property by the Client shall constitute a material breach by the Client. Similarly, a willful violation of confidentiality or a serious violation of law by either party in connection with the Services may constitute a material breach by that party.

 

11.4 Force Majeure Termination: If a Force Majeure Event (as defined in Section 16 below) substantially prevents the performance of the Services for a continuous period of thirty (30) days or more, either party may terminate the affected SOW or the Contract by giving written notice to the other party, provided that the Force Majeure Event is still ongoing at the time of notice. In such event, neither party shall have liability for the failure to perform due to the force majeure (other than payment obligations accrued before termination). However, the Client shall remain obligated to pay MMS for all work actually performed, and all expenses reasonably incurred, up to the effective date of termination due to Force Majeure.

 

11.5 Consequences of Early Termination (Off-Boarding): Upon expiration or termination of the Contract or any SOW for any reason, the Client agrees to pay MMS for all Services rendered and expenses incurred through the effective date of termination, including any work in progress. In addition, if the Contract or a project is terminated early at the Client’s request or due to the Client’s breach (i.e., for reasons other than MMS’s breach or a Force Majeure Event), the Client shall be liable to reimburse MMS for all costs and expenses that have been incurred by MMS which cannot be otherwise mitigated or recovered (for example, non-cancellable subcontractor commitments or materials purchased for the project). Furthermore, unless otherwise agreed in the SOW, the Client agrees to pay a reasonable early termination fee or cancellation charge to compensate MMS for reserving resources and capacity for the project. Any such charge (if not predefined in the SOW) shall be negotiated in good faith, but the Client acknowledges that MMS’s losses from early termination may include lost opportunity costs for personnel that could have been assigned to other billable work. If the SOW or engagement letter specifies a minimum fee or early termination compensation, the Client shall pay that amount (minus any fees already paid for work completed, so as to avoid double counting).

 

11.6 Transfer of Work and Data: After termination, MMS will deliver to the Client any completed deliverables or work product due up to the termination date (upon full payment of amounts owed). MMS will also provide reasonable cooperation in the transition of Services to the Client or to a third-party provider, at the Client’s request and expense. For instance, if the Services included hosting of the Client’s data or a SaaS platform, MMS will provide the Client’s data back to the Client in a standard format and ensure an orderly wind-down of any hosted services. Any additional assistance beyond what is contractually required will be billed on a time-and-materials basis.

 

11.7 Survival: Termination or expiration of the Contract shall not affect those provisions which by their nature are intended to survive, including but not limited to payment obligations (for fees earned up to termination and any cancellation fees), confidentiality (Section 7), intellectual property rights (Section 6), indemnities (Section 9), limitation of liability (Section 10), governing law and dispute resolution (Section 17), and this survival clause itself. All such clauses shall remain in force according to their terms.

 

12. Use of Subcontractors and Assignment

 

12.1 MMS’s Right to Subcontract: The Client agrees that MMS may engage the services of its affiliated companies, subsidiaries, or subcontractors to perform part of the Services under this Contract. MMS shall be responsible for the work performed by any approved subcontractors as if MMS had performed it directly. MMS will ensure that any subcontractor is qualified to perform the assigned tasks and is bound by confidentiality and data protection obligations substantially similar to those in this Contract. While MMS may disclose Confidential Information to subcontractors on a need-to-know basis for the purpose of the engagement, MMS will remain liable for any unauthorized disclosures by its subcontractors, subject to Section 10. The use of subcontractors will not increase the fees charged unless agreed by the Client as part of a change in scope.

 

12.2 No Additional Liability for Subcontractors: The Client agrees that any claims arising from the actions or omissions of MMS’s subcontractors in the performance of the Services shall be brought only against MMS, not against the individual subcontractor or its personnel. All limitations of liability, exclusions, and indemnifications in this Contract (including those in Sections 9 and 10) apply equally for the benefit of MMS’s subcontractors, agents, and affiliates as they do for MMS itself. Collectively, MMS and its subcontractors/affiliates shall have only one aggregate liability to the Client, as defined in Section 10.

 

12.3 Assignment: Neither party may cede, assign, or transfer any of its rights or obligations under this Contract to any third party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, MMS may, upon written notice to the Client (and without requiring the Client’s consent), assign or novate its rights and obligations under this Contract to: (a) any affiliate or successor entity as part of a corporate reorganization, merger, or acquisition involving MMS’s business; or (b) any purchaser of substantially all of MMS’s assets or business related to this Contract. In such cases, MMS shall ensure that the successor agrees to be bound by these Terms, and MMS shall notify the Client of the effective date of transfer. Subject to the above, this Contract will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.

 

12.4 No Solicitation of Personnel: (If applicable – optional clause not explicitly requested but often included) Each party agrees that during the term of this Contract and for 12 months thereafter, it will not solicit for employment or contract (other than through general advertisements) any personnel of the other party who were involved in the performance of the Services, without the other party’s consent. This restriction shall not apply where the individual in question independently responds to a public job advertisement or inquiry not specifically targeted at that individual.

 

13. Record Retention

 

MMS’s policy regarding retention of project-related records is as follows:

 

13.1 MMS will retain copies of project deliverables, correspondence, working papers, and other documentation related to the Services in accordance with its internal record retention policies. Typically, MMS retains client files for a period of ten (10) years after the completion of the Services. This retention is to meet business, legal, and professional requirements (such as potential need for reference in future projects, legal defense, or compliance with regulatory recordkeeping rules). After ten years, MMS may securely destroy or erase the records, at its discretion, unless otherwise required by law or agreed with the Client.

 

13.2 If the Client requires a different retention period for its project records (for example, longer retention for critical documents or immediate destruction of certain sensitive materials), the Client must notify MMS in writing. MMS will reasonably accommodate such requests if feasible, or return specific materials to the Client for the Client’s own retention.

 

13.3 MMS shall not be liable for any loss or damage arising from the destruction of records after the retention period, provided it was done in accordance with this section. It is the Client’s responsibility to securely keep any final deliverables or critical information provided by MMS once the project is completed, as MMS cannot guarantee retaining them beyond the stated period.

 

13.4 The above does not supersede any confidentiality obligations; MMS will maintain confidentiality of client records throughout the retention period. If a dispute arises or legal proceedings are anticipated, MMS may extend retention of relevant records until the matter is resolved.

 

13.5 The Client likewise agrees to retain any records it is required to maintain under applicable law (for example, financial records, data logs, etc.) and that MMS is not responsible for the Client’s obligation to retain its own business records.

 

14. Electronic Communications

 

During the course of the engagement, the parties will frequently communicate and exchange documents via electronic means, such as email, shared file systems, and other online collaboration tools. This section outlines understandings and precautions regarding electronic communications:

 

14.1 Risks of Electronic Communication: Both parties acknowledge that electronic transmission of information (especially via email) cannot be guaranteed to be secure, virus-free, or error-free. Information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or otherwise be adversely affected or unsafe to use. Each party is responsible for protecting its own systems and data from such risks.

 

14.2 Consent to Electronic Communications: The Client and MMS consent to correspond and share documents by electronic means and agree that the benefits of quick and convenient communication outweigh the risks, provided reasonable measures are taken. Each party will use commercially reasonable efforts to scan all outgoing electronic communications for known viruses or malware and promptly inform the other if a harmful transmission is detected that may have affected the other party.

 

14.3 No Liability for E-Communication Risks: To the extent permitted by law, neither party shall be liable for any loss, damage, or omission arising from the use of electronic communications in connection with the Services, including (but not limited to) any failure of an email to be received in a timely manner, any interception or manipulation of electronic communications by a third party, or any harmful code transmitted, provided that the sending party has taken the precautions mentioned above (virus scanning, etc.). This means that if an email is missed or intercepted, the sending party is not automatically at fault. However, nothing in this clause limits a party’s liability for results of intentional misconduct (e.g., knowingly sending infected files or willfully ignoring obvious security breaches).

 

14.4 Communication Protocols: For important or time-sensitive messages, the sending party should consider follow-up confirmation. For example, if the Client sends an urgent request or critical information via email, a follow-up phone call or message to confirm receipt is prudent. MMS likewise will follow up via alternate means (such as phone) if an urgent email from MMS to the Client does not receive a timely acknowledgment.

 

14.5 Integrity of Documents: Where the Contract or law requires a document to be “in writing,” the parties agree that an email or electronic document (for example, a PDF) is valid and admissible, provided the sender’s identity and intent can be reasonably ascertained. Each party will keep archival copies of important communications (like approvals or instructions) to maintain an audit trail.

 

14.6 Electronic Signatures: The parties may execute SOWs, change orders, or other contractual documents electronically (e.g., via a recognized e-signature service or by exchange of signed PDF copies). Such electronic signatures shall have the same legal effect as original signatures.

 

14.7 E-Communication Confidentiality: The confidentiality obligations in Section 7 extend to information exchanged via electronic means. If either party uses a third-party platform or cloud service to facilitate the project (for example, an online project management or file-sharing tool), that party should ensure the service has appropriate security and confidentiality measures. The Client consents to MMS’s use of industry-standard cloud services for project communications and data storage, provided these are bound by confidentiality and data protection obligations no less strict than those contained herein.

 

15. Non-Exclusivity and Non-Restrictive Clause

 

The Client acknowledges that MMS provides a range of services to numerous other clients. Nothing in this Contract restricts MMS from providing services to other clients, including services that are similar to, or even in competition with, the services provided to the Client:

 

15.1 No Exclusivity: This Contract does not grant the Client any form of exclusive rights to MMS’s services or expertise. MMS is free to render services to other companies or individuals, including the Client’s competitors, provided that such work does not involve the misuse of the Client’s Confidential Information. MMS confirms that it has internal policies in place to protect confidential information and manage potential conflicts of interest when working for multiple clients.

 

15.2 No Restriction on Client: Similarly, this Contract does not oblige the Client to obtain services exclusively from MMS. The Client is free to hire other consultants or service providers for similar services, except that the Client remains responsible to ensure no third party is given access to MMS’s proprietary deliverables or tools without MMS’s consent (as per IP and confidentiality provisions).

 

15.3 Independent Contractor Relationship: The relationship of MMS to the Client is that of an independent contractor. Nothing in this Contract shall be construed to create a partnership, joint venture, agency, or employment relationship between MMS and the Client. Neither party has authority to bind the other to any obligation, or to represent itself as the agent or partner of the other, except as may be expressly agreed in writing. Each party remains responsible for its own employees and subcontractors, including compensation, benefits, and tax obligations, and no personnel of one party shall be deemed to be employees of the other.

 

15.4 No Public Endorsement (unless agreed): The Client agrees not to imply any endorsement or recommendation of MMS to third parties without MMS’s prior written consent, and MMS agrees not to claim the Client endorses its services without the Client’s consent. This ensures that, while we can work with others freely, we do not misuse each other’s name beyond what is permitted in Section 7 (Confidentiality/Publicity).

 

16. Force Majeure

 

16.1 Definition of Force Majeure: A “Force Majeure Event” means any event or circumstance beyond the reasonable control of a party that prevents or delays that party from performing its obligations under this Contract. Such events may include, but are not limited to: acts of God (such as floods, earthquakes, storms, or other natural disasters), war, invasion, acts of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, or interruption or failure of electricity, internet, or telecommunication services. A Force Majeure Event also includes the outbreak of a pandemic or epidemic (such as COVID-19) and any resulting government restrictions, lockdowns, or other measures taken to contain the spread of the disease, to the extent such measures directly prevent or delay performance of the Services.

 

16.2 Effect of Force Majeure: If either party is prevented, hindered, or delayed in the performance of any of its obligations under this Contract by a Force Majeure Event, then the affected party shall be excused from performance of those obligations to the extent it is prevented, hindered, or delayed, for as long as the Force Majeure Event continues and its effects persist. The affected party shall not be liable to the other party for any failure or delay in performance caused by a Force Majeure Event. However, the affected party must take reasonable steps to minimize the delay and resume performance as soon as reasonably practicable after the Force Majeure Event ceases or abates.

 

16.3 Notification: The party affected by a Force Majeure Event shall promptly notify the other party in writing of the nature and extent of the event, and the anticipated duration of the delay. The notice should include reasonable detail of the circumstances and, where possible, evidence of the event. The affected party shall keep the other party reasonably informed of developments and take all reasonable steps to mitigate the impact of the Force Majeure Event.

 

16.4 Payment Obligations: Nothing in this section shall excuse the Client from its obligation to pay any amounts due to MMS for Services properly performed or expenses incurred before the Force Majeure Event occurred. For ongoing subscription or support services, payment obligations shall be suspended for the duration of the Force Majeure Event, provided the Services are not being provided. However, if MMS continues to provide some Services remotely or partially, a reasonable adjustment to the fees may be agreed upon based on the level of service provided.

 

16.5 Resumption of Performance: When the Force Majeure Event ceases or abates, the affected party shall promptly resume performance of its obligations and shall notify the other party accordingly. The parties will then discuss and agree on any necessary adjustments to the project schedule or timelines to account for the delay caused by the Force Majeure Event.

 

16.6 Termination for Prolonged Force Majeure: If a Force Majeure Event continues for a prolonged period (as per Section 11.4 above), either party may have the right to terminate the Contract or affected SOW. Please see Section 11.4 regarding termination for Force Majeure.

 

17. Governing Law and Dispute Resolution

 

17.1 Governing Law:

 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Republic of South Africa.

 

17.2 Informal Dispute Resolution: In the event of any dispute arising between the parties, the parties shall first attempt to resolve the dispute through good faith negotiations. Either party may initiate such negotiations by giving written notice to the other party setting out the nature of the dispute. The parties shall meet (in person or remotely) and attempt to resolve the dispute amicably. If the parties are unable to resolve the dispute through negotiation within a reasonable period (typically 30 days), then they shall proceed to the next step.

 

17.3 Arbitration: If the dispute is not resolved through negotiation, either party may refer the dispute to arbitration in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”). The arbitration shall be held in Cape Town, South Africa, and shall be conducted in English. The arbitration shall be conducted by a single arbitrator appointed in accordance with the AFSA rules. The arbitrator’s decision shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

 

17.4 Court Jurisdiction: Notwithstanding the above, either party may seek injunctive relief or other equitable remedies from a court of competent jurisdiction in South Africa to prevent irreparable harm or to protect its intellectual property rights or confidential information, pending the outcome of arbitration. For all other matters, the parties agree to submit to the exclusive jurisdiction of the courts of South Africa.

 

17.5 Costs: The costs of the arbitration, including the arbitrator’s fees, shall be borne as determined by the arbitrator. Each party shall bear its own legal costs and expenses in connection with the dispute, unless otherwise determined by the arbitrator.

 

17.6 Continued Performance: During the dispute resolution process, the parties shall continue to perform their respective obligations under this Contract to the extent possible and without prejudice to their respective rights.

 

18. General Provisions

 

18.1 Entire Agreement: These Terms, together with any applicable engagement letter, SOW, or other written agreement signed by both parties, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect thereto.

 

18.2 Severability: If any provision of this Contract is held to be invalid, illegal, or unenforceable, the remaining provisions of this Contract shall remain in full force and effect to the extent permitted by law. The invalid, illegal, or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable.

 

18.3 Waiver:

 No waiver of any breach of any provision of this Contract shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

 

18.4 Headings:

 The headings used in this Contract are for convenience of reference only and shall not affect the interpretation of this Contract.

 

18.5 Notices:

 Any notice or other communication required or permitted under this Contract shall be in writing and shall be deemed given when delivered personally, sent by confirmed email, or sent by registered mail, return receipt requested, to the address of the receiving party set forth in the engagement letter or SOW, or to such other address as either party may designate in writing to the other party.

 

18.6 Amendments: No amendment or modification of this Contract shall be effective unless it is in writing and signed by authorized representatives of both parties.

 

18.7 Counterparts: This Contract may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures exchanged electronically (e.g., via scanned copies or electronic signature platforms) shall be considered valid and binding.

 

18.8 Language: This Contract is written in English and shall be interpreted in English. If this Contract is translated into any other language, the English version shall prevail in the event of any inconsistency.

 

18.9 Relationship of Parties: The parties are independent contractors, and nothing in this Contract shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.

 

18.10 No Third-Party Beneficiaries: Except as expressly provided herein (for example, Section 10 regarding limitations of liability benefiting subcontractors), this Contract is intended solely for the benefit of the parties hereto and their respective successors and permitted assigns, and no other person shall have any right or remedy hereunder.

 

18.11 Force and Effect: This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and permitted assigns.

 

18.12 Interpretation:

 In this Contract, words importing the singular shall include the plural and vice versa, and words importing a gender shall include every gender.

 

 

Schedule A: Standard SaaS Service Level Agreement (SLA) Terms

 

1. Scope and Applicability

This Section sets forth the default service level commitments and support terms for all SaaS offerings provided by Metal Management Solutions (MMS) related to its WIRE software platform. These terms apply to both cloud-hosted and on-premise deployments of the WIRE software, as applicable, and shall govern in any SaaS engagement unless a separate project-specific Service Level Agreement (SLA) is negotiated. In case of any conflict between this Section and a project-specific SLA, the project-specific SLA will prevail to the extent of the conflict.​

1. Deployment Models and Responsibilities

MMS offers WIRE in two deployment models: a cloud-hosted service managed by MMS, or an on-premise (Client-hosted) solution. The responsibilities of each Party under each model are delineated below for clarity:

2.1 Cloud-Hosted Deployments: MMS will host the WIRE software in a cloud environment managed by MMS. Accordingly, MMS is responsible for all server infrastructure, networking, and application management duties, including:

• Infrastructure Uptime: Ensuring the WIRE application and underlying infrastructure are operational and available at or above the agreed uptime level (see Service Levels below)​. This includes maintaining servers, network availability, and sufficient resources (CPU, storage, memory) to meet performance requirements​.

• Security and Access Control: Implementing appropriate security measures (firewalls, access controls, intrusion prevention) to protect the cloud environment and prevent unauthorized access​. Access to the SaaS infrastructure is restricted to authorized MMS personnel, revoked when no longer needed​.

• Backup and Recovery: Performing regular data and system backups of the cloud-hosted WIRE environment, according to a backup policy agreed with the. MMS will store backups and manage restoration procedures to ensure the application and database can be restored and functional in case of data loss or disaster.

• Software Maintenance: Managing all application updates, patches, and upgrades to the WIRE software. MMS will monitor application performance and promptly apply updates or fixes to keep the software secure and up-to-date​.

• Support Availability: Providing technical support for the WIRE application as detailed in the Service Levels section, including incident response and resolution within agreed times.
   

The Client’s responsibilities in a cloud deployment include maintaining its own internet connectivity and network environment to access the cloud services. The Client is responsible for the performance and security of its internal networks and devices when connecting to the WIRE cloud service. The Client must also cooperate with any reasonable security or access protocols set by MMS for using the cloud service. (For example, the Client should keep user credentials secure and notify MMS of any suspected unauthorized access.)
 

2.2 On-Premise Deployments: In an on-premise deployment, the WIRE software is installed at the Client’s facilities or data center (or in a cloud environment provided by the Client). MMS is responsible for the WIRE application’s functionality and support, while the Client is responsible for providing and managing the hosting environment. The division of responsibilities typically includes:

• Client Responsibilities (On-Premise Infrastructure): The Client shall provide suitable hardware and network infrastructure for hosting the WIRE software (e.g. virtual or physical servers, operating system, network connectivity). The Client is responsible for all system administration of the underlying environment, including maintaining the operating system and database platform (for example, applying OS security patches and keeping required third-party software like databases up to date)​. The Client must also manage network availability and performance within its facilities – ensuring stable internal network connections, internet access, and (if applicable) VPN access for MMS to perform remote support​. The Client is further responsible for implementing regular system-level backups of the environment (e.g. VM or server backups, and off-site backup storage for disaster recovery), and for performing restoration of those backups in a disaster scenario (recovering the servers/VMs to a running state)​. All necessary IT security measures on site (firewalls, internal network security, user access controls, SSL certificates, etc.) are the Client’s responsibility to procure, maintain, and keep current. It is assumed the Client has the requisite IT capabilities to support the infrastructure such that the WIRE application can run reliably​.

• MMS Responsibilities (On-Premise Application): MMS will install and configure the WIRE software on the Client’s provided infrastructure and will be responsible for the availability and proper functioning of the WIRE application itself. In practice, MMS will monitor the WIRE application and ensure it is operational for end-users, provided the underlying infrastructure (as managed by Client) is available​. MMS will perform application-level backups (e.g. database backups) if feasible or otherwise work with the Client to ensure the application data is captured in the Client’s backups​. MMS will also handle recovery of the WIRE application after the Client restores the underlying system from a backup – for example, once the Client has recovered the server or VM, MMS will ensure that all WIRE services are started and the application is accessible​. Additionally, MMS will apply WIRE software updates and patches as needed, and provide technical support per the SLA commitments (diagnosing and fixing software issues)​.
   

In summary, for on-premise deployments the Client manages the hosting environment (power, hardware, OS, network, and backups of the system), and MMS manages the WIRE application on that environment. Both parties must cooperate to achieve the desired uptime and performance. (Notably, because the on-premise uptime depends on the Client’s infrastructure, the uptime targets for on-premise deployments may be adjusted or subject to the Client meeting its obligations – see Service Levels below.)​

1. Service Level Commitments

Unless otherwise agreed in a project-specific SLA, the following default service levels and metrics apply to all MMS SaaS services:

3.1 Application Support: Support for WIRE or other MMS deployed systems is managed through our ticketing system and issues can be logged both within the product or to our service desk via email. For example : servicedesk@metalmanagementsolutions.com

3.2 Availability (Uptime) For Cloud-Hosted deployments: MMS commits to a minimum monthly uptime of 98.5% for the WIRE application service. Uptime is measured as the percentage of total minutes in a calendar month that the core WIRE application is available to the Client, excluding scheduled maintenance windows or agreed downtime. This default uptime commitment ensures that the service will be operational for the vast majority of the time (for reference, a 97% uptime equates to a small allowance of downtime per month​). MMS will endeavor to schedule any necessary maintenance during off-peak hours and with advance notice to minimize impact. In the event the cloud service uptime falls below the committed level in a given month (excluding excused downtime), MMS will, upon the Client’s request, review the causes and discuss appropriate service credits or remedial measures as may be defined in a specific SLA or contract.

3.3 Availability For On-Premise deployments: the overall system availability is a shared responsibility. MMS will use commercially reasonable efforts to keep the WIRE software available and operational in line with a target uptime to be mutually agreed with the Client (often aligned with the Client’s internal infrastructure availability policies)​. However, because the infrastructure is maintained by the Client, the parties acknowledge that the achievable uptime may depend on the Client’s fulfillment of its responsibilities (such as maintaining power, network, and hardware reliability). If no specific uptime percentage is defined for an on-premise deployment, MMS will support the WIRE application to maintain high availability of 98.5% for MMS managed services, but cannot unilaterally guarantee a precise uptime level. In practice, MMS will coordinate with the Client’s IT team to meet the highest reasonable uptime and promptly address application issues within the constraints of the Client-managed environment.
 

3.4 Support Response Times: MMS provides technical support for the WIRE software with response time targets based on the severity of the issue. Issues are classified by severity level, and each level has an associated response time and resolution time for MMS to acknowledge the issue and remediate. The default severity definitions and response SLAs are:
 

1. Severity 1 – Critical/Urgent: A critical production issue causing complete loss of service or a major failure with no workaround (e.g. the WIRE system is down or a key function is unusable, impacting operations). Response Time: MMS will respond within 1 hour of the Client’s report of a Severity 1 incident​. MMS will treat such issues with the highest priority, mobilizing appropriate resources to diagnose and resolve the problem as quickly as possible. Mean Time to Resolution (MTTR) will be maintained under 8 hours.
    

2. Severity 2 – High: A high-impact issue where the system is still functioning but in a significantly reduced or degraded capacity. Important features are impaired and there is risk of workflow interruption or data loss (though operations can continue in a limited fashion, or a workaround exists). Response Time: MMS will respond within 1 hour for a Severity 2 issue​. Mean Time to Resolution (MTTR) will be maintained under 1 business day.
    

3. Severity 3 – Medium: A moderate impact issue that causes partial loss of non-critical functionality or inconvenience. The system generally remains usable and business operations continue, albeit with some issues (minor functionality not working as expected or an easy workaround is available). Response Time: MMS will respond within 4 hours for a Severity 3 incident​. Mean Time to Resolution (MTTR) will be maintained under 3 business days.
    

4. Severity 4 – Low: A low-priority issue, general question, or request that has minimal impact on operations. This may include cosmetic issues, documentation questions, or enhancement suggestions that do not affect current service performance. Response Time: MMS will respond within 1 business days for Severity 4 requests​.  Resolution times are typically within 1 week, but timelines will be tied to backlog prioritisation, or alignment with scheduled maintenance windows.
    

• MMS anticipate that these response times may be adjusted to suit software deployments in certain international time zones, and extended support hours offered by MMS. In this case the project specific SLA terms duly signed by authorized personnel will take precedence for all conflicting terms herein.

 

• The response time is defined as the maximum elapsed time from the Client reporting the issue through the designated support channel to the time when MMS provides an initial acknowledgment and begins active troubleshooting. MMS’s goal is to not only respond within these times but to resolve issues as soon as practicable. Resolution times will vary depending on the complexity of the issue; however, MMS will use all reasonable efforts to resolve critical issues on an urgent basis and to provide workarounds or temporary fixes when a full resolution may take longer. If an issue cannot be fully resolved within a reasonable time after initial response, MMS will escalate the issue internally and communicate an action plan to the Client, including an estimate of the effort and time required to finalize the solution​. For example, MMS’s support may dedicate up to a certain number of hours (e.g. 4 hours) of engineering effort immediately to troubleshoot and fix an urgent issue; if the issue requires more extensive work beyond that initial effort, MMS will inform the Client and either continue under the Client’s allotted support hours or propose a separate arrangement for the additional work​.
   

3. 5 Backup and Recovery: MMS recognizes the importance of data protection and disaster recovery for all deployments of WIRE. For cloud-hosted services, MMS will perform regular backups of the WIRE application and its database (such as daily or more frequent backups, as appropriate) and retain these backups for a defined retention period (e.g. a rolling 30 days, or as specified in the SLA) to enable restoration of service and data in case of failure​. MMS will also maintain a disaster recovery capability for the cloud deployment, such as off-site backup storage and the ability to restore the service in a different environment if a major incident occurs. Recovery procedures are tested or verified periodically, and MMS will be responsible for executing the restoration of the service from backups in the event of data loss, corruption, or disaster, striving to minimize downtime and data loss. For on-premise deployments, the Client is responsible for performing and managing full system backups of the servers or virtual machines on which WIRE is installed (including off-site backups for disaster recovery). MMS will ensure that any application-level data (such as the WIRE database) is included in those backups (or will assist the Client in configuring database backups). In the event of a failure requiring restoration, the Client must restore the underlying server or environment from its backups (in line with the Client’s disaster recovery plan), and MMS will then assist in restoring the WIRE application to operational status on that restored environment. Both parties shall agree on a reasonable backup schedule and retention policy at the start of the engagement (especially for on-premise deployments) to ensure clarity on recovery expectations. Unless otherwise specified, MMS’s default practice is to backup cloud data daily and the Client’s default responsibility is to backup on-premise systems daily. Neither Party shall delete or purge backups related to the WIRE system earlier than the agreed retention period without consent of the other.
 

4. Technical Support Structure and Exclusions

MMS provides technical support and maintenance services for WIRE as a drawdown support hours facility. This means that each SaaS contract includes a pre-agreed allotment of support/consulting hours that the Client can draw from for technical assistance and minor enhancements, exclusive of new feature development work. The key elements of this support structure are:

• Support Hours Pool: The Client will have a set number of support hours allocated (e.g., per month or per year) as part of the service agreement. These hours (the “drawdown hours”) are intended to cover routine support and small-scale service requests. For example, MMS might include a baseline of N hours per month of support/consulting time in the SLA (the exact number to be defined in the Order or contract for each Client) to accommodate ongoing needs​. During these hours, MMS can assist the Client with various tasks such as minor configuration changes, adjustments to data integration mappings, report layout modifications, training of user personnel in use of WIRE, and other advisory support to help the Client get the most out of the software. This built-in pool of hours is designed to provide flexibility and prompt assistance without the need for a new Work Order for every small request. MMS will track the time spent on support activities and deduct it from the available pool as it is used. Support activities under this pool are typically initiated through the MMS service desk or account manager and scheduled/prioritized in coordination with the Client.
   

• Exclusions – No Custom Development or Major Enhancements: The included support hours are not intended for major software customizations, new feature development, new module implementations, or substantial enhancements that fall outside the scope of standard use and maintenance of WIRE. Any feature expansions, custom development, or new integration projects are explicitly excluded from the standard SLA support and must be handled via a separate Statement of Work (SOW) or change order with its own scope, timeline, and fees​. In other words, if the Client requests new functionality, significant changes to the software, or integration with additional third-party systems not originally included, MMS is not obligated to perform such work within the drawdown support hours. Instead, MMS will scope the requested changes and provide a proposal or SOW for the Client’s approval, and only proceed once separate contractual terms are in place for that work. Minor tweaks and configuration changes to existing features are generally covered by the support hours, but anything constituting a material addition to or alteration of the software’s baseline capabilities is out of scope.
   

• Exceeding Support Hours: If the Client’s support needs exceed the allotted support hours (for instance, if the included hours are used up due to a particularly busy period or an especially complex issue), MMS will inform the Client as the limit is approached. The Parties may then mutually agree to either (a) purchase additional support hours or an expanded support package, or (b) defer certain non-urgent tasks to the next period, or (c) handle the additional support as billable work at an agreed upon rate. Likewise, if an individual support ticket or issue is estimated to require an unusually large effort (e.g., a request that would consume more than a few hours for a single issue), MMS will notify the Client. In such cases, MMS may, with Client’s approval, charge the work in excess of the included hours at the agreed ad-hoc hourly rates or under a separate SOW​. MMS’s prevailing rate schedule for out-of-scope work will be provided (or is set forth in the agreement), and MMS will only bill extra hours with prior notice and consent from the Client. This structure ensures the Client gets predictable support coverage, while MMS retains the ability to be compensated for significant extra work beyond the contract’s included support.
   

• Support Hours Not for Feature Development: To reiterate, the drawdown support hours are meant for support and maintenance of the existing WIRE solution. Tasks like troubleshooting issues, guiding users, minor adjustments, and routine optimizations are included. But design and development of new features or custom reports beyond the standard product, or undertaking software customization, must be scoped separately. If the Client is interested in additional functionality, MMS will gladly discuss a separate project for that purpose. By keeping this clear separation, MMS ensures that the support hours are utilized effectively for keeping the system running smoothly and adapting it within its configured capabilities, whereas any major changes go through proper project planning. This protects both MMS and the Client from misunderstandings regarding what is covered under the regular support fees.
   

• Support Hours Coverage Window: MMS’s standard support hours (coverage window) are 08:00 to 17:00 South African Standard Time (GMT+2), Monday through Friday, excluding public holidays​. Support requests can be made during these hours and will be handled in accordance with the SLA response times stated above. Requests made outside of normal hours (such as at night, on weekends, or on holidays) will be addressed on a best-effort basis​. Certain software deployments in international time zones may have extended support hours negotiated to suit our client’s operating hours, and these will be documented in a project specific SLA that will supercede conflicting terms herein. MMS may provide an emergency contact or after-hours contact method for critical issues, but non-critical requests will typically be handled on the next business day. If 24/7 or extended hour support is required by the Client, this should be discussed and agreed as a special arrangement (potentially with additional fees) or documented in a project-specific SLA.

5. Suspension of Service for Non-Payment or Breach

MMS reserves the right to suspend the provision of SaaS services (including both cloud-hosted service access and on-premise support obligations) in the event of the Client’s material breach of the agreement, such as failure to pay licensing fees when due or other serious violations of the contract terms. If the Client fails to pay any undisputed invoice beyond the agreed payment period, MMS will provide written notice to the Client requesting payment. Should the Client remain in default after a reasonable cure period (for example, 14 days past due after notice), MMS may suspend its services under this SLA until payment is received or the breach is otherwise cured​. Suspension of services may include, for a cloud deployment, temporarily disabling the Client’s access to the WIRE cloud application (effectively taking the service offline for the Client) and, for on-premise, suspension of MMS’s support activities and/or disabling of software license keys if contractually permitted. MMS will not exercise this right without prior notice – MMS will give the Client at least fourteen (14) days’ advance warning of suspension in writing, specifying the breach (e.g. overdue payment) and providing an opportunity for the Client to remedy it to avoid suspension.

Failing remedy of overdue license payments, MMS reserves the right to suspend all associated services by disabling the corresponding software license keys.

During any period of suspension, the Client remains obligated to pay outstanding and on-going subscription or support fees as they come due. MMS shall promptly reinstate the services after the Client has cured the breach and paid any applicable re-activation fee if such is specified in the contract. Suspension is a remedial measure and not a waiver of MMS’s right to terminate the agreement for cause if the breach is severe or remains uncured. Any suspension will be implemented in good faith and in accordance with applicable law, with the primary aim to prompt cure of the breach while mitigating risks or continued harm.

6. Project-Specific SLAs and Prevailing Terms

While the above provisions establish MMS’s default service levels and support terms, the Parties may choose to execute a project-specific SLA or include bespoke service level terms in a Statement of Work or Order Form for a particular implementation of WIRE. Any such project-specific SLA or written variation approved by both Parties will take precedence over the general terms in this Section for that project. For example, the Client and MMS might agree on a different uptime guarantee, different support hour arrangements, or additional metrics in a tailored SLA document. In those cases, that project-specific SLA’s terms will override the conflicting provisions here, but only for the defined scope of that project or service. All non-conflicting terms from this general Section will still apply as a baseline. If no separate SLA is negotiated for a SaaS engagement, then this Section serves as the comprehensive SLA and support agreement by default, ensuring that the Client still benefits from clear service commitments and MMS is protected by well-defined boundaries of service.

Clients who require any special service level arrangements are encouraged to negotiate an addendum or project SLA, in which case MMS is open to tailor these provisions within reason to meet those requirements. Otherwise, the above default terms shall apply to all SaaS subscriptions and support provided by MMS.