TERMS AND CONDITIONS OF CONTRACT

1              THESE TERMS AND CONDITIONS TO PREVAIL

These terms and conditions, together with the Agreement and Schedules hereto, (hereinafter collectively referred to as “this Agreement”) shall constitute the whole of the agreement between I-Sixty and Subscriber relating to the subject matter hereof, notwithstanding anything in Subscriber’s inquiry, specification, acceptance, order or other documentation or discussion to the contrary.

2              NO VARIATION OR AMENDMENT

2.1           No amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorised representative from both I-Sixty and Subscriber.

2.2           No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against either parties hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.

2.3           Either party shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract between Subscriber and I-Sixty or not.

3              CHARGES

3.1           Subscriber is responsible for and agrees to pay to I-Sixty all fees and charges set out in the Schedules in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.

3.2           In the event of any dispute arising as to the amount or calculation of any fee or charge which is payable by Subscriber, the dispute shall be referred for determination to independent auditors.  They shall act as experts and their decision shall be final and binding on I-Sixty and Subscriber.

3.3           Any amount falling due for payment by Subscriber to I-Sixty in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at  the prime rate of Standard Bank from time to time, monthly in arrears.

4              WARRANTIES

4.1           Save as expressly set out in this Agreement, I-Sixty does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Equipment, Software or Services and all warranties which are implied or residual at common law are hereby expressly excluded.

4.2           Without limitation to the generality of clause 4.1, I-Sixty does not warrant or guarantee that the information transmitted by or available to Subscribers by way of the Services or the Software.

4.2.1        will be preserved or sustained in their entirety;

4.2.2        will be suitable for any purpose;

4.2.3        will be free of inaccuracies or defects or bugs or viruses of any kind;

4.3           and I-Sixty assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 4.2 and 4.1 above. All references to I-Sixty in this clause 4 and in clause 5 directly below includes I-Sixty Licensor (as defined in Annexure A) and all warranties and liabilities excluded in these clauses apply equally to I-Sixty and its Licensor.

5              EXCLUSION OF LIABILITY

5.1           Except for any deliberate act or gross negligence on the part of I-Sixty, its servants or agents, and except as otherwise expressly provided herein to the contrary, I-Sixty shall not be liable to Subscriber or any third party for any loss to Subscriber or any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against I-Sixty or against Subscriber by any party arising directly or indirectly out of the Equipment, Software or Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be, by or from their use.

5.2           Subject to clause 5.1 above, the entire liability of I-Sixty and Subscriber’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Subscriber under this Agreement for the period of 12 (twelve) months preceding Subscriber's written notice in terms of clause 7.1.

5.3           Subscriber hereby indemnifies I-Sixty against and holds I-Sixty harmless from any claim by any third party arising directly or indirectly out of access to or use of the Equipment, Software or Services or information obtained through the use thereof or in respect of any matter for which liability of I-Sixty is excluded in terms of clause 5.1 above.

5.4           Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time without notice by I-Sixty, and all liability on the part of I-Sixty of any loss or damage (whether directly or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded, and the provisions of clause 5.1 above shall apply mutatis mutandis to such exclusion.  Should the provision of the Services be suspended by I-Sixty for the purpose aforementioned for a period in excess of 48 (forty eight) consecutive hours, I-Sixty shall give Subscriber credit in an amount which represents a pro rata portion of Subscriber’s basic monthly subscription fee for the month during which the said suspension occurred.

6              DOCUMENTATION

Any specifications, descriptive matter, drawings and other documents which may be furnished by I-Sixty to Subscriber from time to time:

6.1           do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement;

6.2           shall remain the property of I-Sixty and shall be deemed to have been imparted by it in trust to Subscriber for the sole use of Subscriber.  All copyright in such documents vests in I-Sixty.  Such documents shall be returned to I-Sixty on demand.

7              BREACH

7.1           Subject to the provisions of clause 7.2 to the contrary, if either party hereto:

7.1.1        breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the other party;

7.1.2        commits any act of insolvency;

7.1.3        endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the other party’s rights hereunder or at all;

7.1.4        allows any judgement against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or

7.1.5        is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered;

the other shall have the right, without prejudice to any other right which it may have against the other, to;

a)             treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the defaulting party until such party has remedied the breach; or

b)             cancel this Agreement; in either event without prejudice to such party’s right to claim damages.

7.2           In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive.

7.3           Subscriber shall be liable for all costs incurred by I-Sixty in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.

8              CESSION

Subscriber shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by I-Sixty, which consent may not be unreasonably withheld.

9              HEADINGS AND INTERPRETATION

The clause headings contained herein are for reference purposes only and shall not be used in the interpretation of this Agreement.  Words importing any one gender include the other genders, the singular includes the plural and vice versa, and natural persons includes created entities (corporate or unincorporate) and vice versa.

10            DOMICILIUM CITANDI ET EXECUTANDI

For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and the serving of any process, I-Sixty and Subscriber respectively choose their domicilium citandi et executandi (“domicilium”) at their respective street addresses appearing on the face hereof.  Either party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within ten days of the said change.  Any notice which either party may give to the other shall be posted by prepaid registered post or hand delivered to the other party’s domicilium and shall be presumed, unless the contrary is proved by the party to whom it is addressed, to have been received by that party on the tenth day after the date of posting or day of delivery as the case may be.

11            GOVERNING LAW AND JURNISDICTION

This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African Court having jurisdiction.

12            FORCE MAJEURE

12.1         I-Sixty shall not be liable for non-performance under this agreement to the extent to which the non-performance is caused by events or conditions beyond the control of I-Sixty, provided that I-Sixty makes all reasonable efforts to perform.

12.2         In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.

13            TEST PERIOD

1.1           This Agreement and all its terms, including the application form and the Service Specification Annexure, is subject to a test period arrangement as follows:

1.1.1        The agreed set-up fee shall only be payable after the successful elapse of the initial test phase.

1.1.2        The first 30 (thirty) days shall serve as a test period wherein Subscriber will test the functionality of the I-Sixty product;

1.1.3        In the event that Subscriber can not ensure such compatibility within the first 30 (thirty) days, then it shall provide I-Sixty one week’s access to its facilities in order for I-Sixty to test the incompatibility and to remedy such incompatibility, failing which this agreement may be cancelled by Subscriber immediately.

1.1.4        In the event of such cancellation, Subscriber will only be liable for 50% of the initial set-up cost of the Backup Solution as a full and final settlement.

1.1.5        No other fees shall be paid during the test period.

ANNEXURE A – ATTIX5 LTD. SOFTWARE LICENSE TERMS

1.     DEFINITIONS

In this Schedule 1, the words detailed hereunder will have the meanings ascribed to them as follows:

1.1           “Software" means the Attix5 Ltd. computer software program and any related documentation including manuals, which includes Java-based client software which resides on the end-user’s personal computer ("client software") and software which will reside in Subscribers' central computer server ("server software") which together control the backup process whereby data is backed up from end-users' personal computers via the local area network to the central storage facility on Subscriber’s premises, and which includes the binary codes and any improvements, upgrades, alterations or changes made by Attix5 Ltd. or the licensor from time to time;

1.2           “Effective Date” means the date when Software is first provided by I-Sixty to Subscriber for use;

1.3           “Contract Period” means a period of 12 (twelve) months;

1.4