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Hatton Locks Master Seervices Agreeemnt


Hatton Locks (Pty) LTD Master Services Agreement (MSA)

 

This MASTER SERVICES AGREEMENT between

 

_______________________  (the Customer)

 

and Hatton Locks (Pty) Limited (Hatton Locks) is intended to facilitate the conclusion of individual contracts in the form of Service Orders (as defined below) between Hatton Locks and the Customer or a Customer Affiliate (as defined below). Together with the Service Order(s) delivered and accepted in accordance with this Agreement, this Master Services Agreement establishes the terms and conditions under which Hatton Locks shall provide the Services to the Customer, each as defined below.

 

Parties

 

Hatton Locks (PTY) LIMITED:

Registered Office Address:

37 Del Prado, 85 Hobart Rd

Bryanston

South Africa

Registered No: 2026/243400/07

 

Address For Notice:

As above, for the attention of the Legal Department

 

Customer:

 

Registered Office Address:

 

 

Registered No:

 

Address For Notice:

 

 

 


Terms and conditions

 

1 DEFINITIONS AND INTERPRETATION

 1.1 In this Agreement the following terms and phrases shall have the following meaning, unless the context

otherwise requires:

 

"Agreement" shall mean, as between Hatton Locks and Customer, this Master Services Agreement, and, as between Hatton Locks and Customer for a Service, the relevant Service Order(s) incorporating the terms of this Master Services Agreement.

"Business Day" shall mean, in respect of a Service, every day excluding Saturdays, Sundays and any

national holidays in the jurisdiction where the Service is provided.

“Charges” means all fees, charges and other amounts payable by the Customer to Hatton Locks in respect of the Services, including any one-time, recurring, usage-based or time-based fees, as set out in or referred to in a Service Order, as may be amended in accordance with this Agreement.

"Confidential Information" shall mean all information (in whatever format) which: (i) relates to the

Agreement; (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks,

customers, products, developments, trade secrets, know-how and personnel of either Party (including, in the

case of the Customer, Customer Data) and which may reasonably be regarded as the confidential

information of the disclosing Party.

"Customer" shall mean, for a Service, jointly and severally, the Customer and the Customer

Affiliate that delivers a signed Service Order to Hatton Locks pursuant to Clause 2.1.

"Customer Affiliate" shall mean: (i) any entity or person wholly owned, whether directly or indirectly, by the

Customer as at the date of this Agreement; or (ii) any other entity or person as agreed by the

Parties from time to time.

"Customer Data" shall mean any data, information, records, and content belonging to or relating to the Customer, including data stored, processed, or transmitted within the Customer Environment.

"Regulated Customer Data" shall mean Customer Data that is subject to applicable data protection laws relating to personal data, and which is processed by or comes into the possession of Hatton Locks or its agents.

"Customer Equipment" shall mean hardware, software, systems, cabling and facilities provided by the

Customer and used in conjunction with the Service Equipment in order to receive the Service.

"Customer Site" shall mean a site or sites specified in a Service Order, or attachments thereto, at which a Service is to be provided.

"Emergency Works" shall mean works that are immediately necessary to prevent or stop imminent harm to persons, or damage to Infrastructure, where such harm or damage will occur if the works are not performed without delay.

"Force Majeure Event" shall mean any cause beyond a Party's reasonable control affecting the

performance of its obligations, including, but not limited to, fire, flood, explosion, accident, war, acts of

terrorism, strike, embargo, governmental requirement, civil or military authority, Act of God, changes to laws

or regulations, inability to secure materials or services, industrial disputes and acts or omissions of other

providers of telecommunications services.

"Installation Charge" or "Start Up Charge" shall mean the one-time charge for installation of a Service (including installation of any Service Equipment) payable in accordance with Clause 4.

"Internet" shall mean the international interconnected network of networks using the TCP/IP protocol to

exchange data communications.

"Party" shall mean, in respect of a Service, each of Hatton Locks and the Customer, and "Parties" shall be construed accordingly.

"Ready for Service Notification" means a notification that may be provided in accordance with Clause 3.1

that, with respect to Hatton Locks obligations hereunder, the Service is ready for use.

"Rental Charge" or "Monthly Fee" shall mean the monthly rental charge for a Service payable in

accordance with Clause 4.

"Service" shall mean the specific service provided by Hatton Locks to the Customer, and as may be further described in the relevant Service Order.

"Service Activation Date" or "Acceptance Date" shall mean, in relation to a Service, the date a Customer

accepts or is deemed to accept a Service in accordance with Clause 3.2.

"Service Equipment" shall mean the hardware, software, systems, cabling, and facilities provided by Hatton Locks at the Customer Site in order to make available the Service to the Customer. Service Equipment shall not include the Network or any hardware or software which is the subject of a separate supply contract between Hatton Locks and the Customer.

 "Service Order" shall mean a request for a specific Service delivered by the Customer to Hatton Locks and accepted by Hatton Locks in accordance with Clauses 2.1 and 2.2.

 "Service Term", in relation to a Service, shall mean the total period for which the Service is provided

pursuant to a Service Order. The "Initial Service Term" shall mean the (initial) service term from the Service Activation Date or Acceptance Date as stated on the Service Order or, if not stated, one year from the Service Activation Date or Acceptance Date.

 

1.2 Unless the context otherwise requires, in this Agreement, a reference to:

1.2.1 a person includes a reference to a body corporate, association or partnership;

1.2.2 a person includes a reference to that person's legal personal representatives, successors and permitted assigns;

1.2.3 any statute or statutory provision includes references to that statute or provision as amended, modified or reenacted; and 

1.2.4 a document is a reference to that document as supplemented or varied from time to time.

 

2 SERVICE

2.1 The Customer may from time-to-time request Services by submitting a Service Order under this Agreement. A Service Order shall be in such form as may be prescribed by Hatton Locks from time to time.

2.2 A Service Order shall be binding only once accepted by Hatton Locks in writing. Each accepted Service Order shall form part of this Agreement and shall define the specific Services to be provided. In the event of any inconsistency between a Service Order and this Agreement, the terms of the Service Order shall prevail in respect of that Service.

2.3 Hatton Locks may use subcontractors or third-party providers in the provision of the Services.

2.4 The Services are provided for the Customer’s own use and may not be resold or made available to third parties without Hatton Locks’s prior written consent.

2.5 Hatton Locks may make changes to the manner in which the Services are delivered, provided that such changes do not materially reduce the agreed Service Scope.

 

3 SERVICE ACTIVATION

3.1 Services shall be provided by Hatton Locks only pursuant to a Service Order accepted in accordance with this Agreement.

3.2 The applicable Service Order shall specify the commencement, activation, or availability of the relevant Service.

3.3 In the absence of a specified commencement or activation date in a Service Order, the Service shall be deemed to commence on the earlier of:

(i) the date Hatton Locks begins delivery of the Service; or

(ii) the date the Customer first makes use of the Service.

 

4 CHARGES AND PAYMENT TERMS

4.1 The Customer shall pay the Charges in accordance with this Clause 4 and the applicable Service Order.

4.2 The Charges and any applicable pricing, billing structure, and timing shall be as set out in the relevant Service Order.

4.3 Unless otherwise specified in a Service Order, Hatton Locks may amend its rates or Charges on not less than thirty (30) Days’ written notice, provided that such amendment shall not affect any prepaid Charges already paid by the Customer.

4.4 Charges shall accrue and be invoiced as specified in the applicable Service Order. Where not specified:

  • time-based services may be invoiced monthly in arrears;
  • prepaid services may be invoiced in advance;
  • third-party or pass-through costs may be invoiced as incurred.

4.5 Invoices are due on issue and payable within thirty (30) days of the invoice date, unless otherwise stated in the Service Order.

4.6 Interest shall accrue monthly on any overdue amount from the due date until payment at a rate of two (2) percent above the base lending rate from time to time of Standard Bank of South Africa.

4.7 All Charges are inclusive of value added tax and any similar taxes, which shall be payable by the Customer at the applicable rate.

4.8 Any minimum commitment, usage requirement, expiry of prepaid services, or early termination charges shall be as set out in the applicable Service Order.

4.9 Early Termination Where a Service Order includes a minimum term or committed spend, and the Customer terminates the Service prior to the expiry of such term, Hatton Locks may charge an early termination fee equal to:

(a) any unpaid Charges for Services performed up to the date of termination;

(b) any committed but unbilled Charges for the unexpired portion of the applicable term, as set out in the Service Order; and

(c) any third-party costs, cancellation fees, or expenses incurred by Hatton Locks as a result of such termination.

 

The parties agree that such amounts constitute a reasonable pre-estimate of Hatton Locks’s loss.

 

4.9 Dependency of Services. The Customer acknowledges that certain Services may depend on the continued availability of underlying systems, platforms, or third-party services.

Where the Customer terminates or ceases to maintain such underlying services, Hatton Locks shall not be responsible for any inability of the Customer to utilise any remaining prepaid Services or service hours. In such circumstances, no refund shall be due in respect of any unused prepaid Charges.

 

5 SERVICE PERFORMANCE

5.1 In performing its obligations under this Agreement, Hatton Locks shall exercise reasonable skill and care consistent with that expected of a competent provider of similar services.

5.2 Hatton Locks shall use reasonable endeavours to provide the Services in accordance with the applicable Service Order.

5.3 Except as expressly set out in this Agreement or a Service Order, all warranties, representations and conditions, whether express or implied, are excluded to the extent permitted by law.


6 SERVICE SUSPENSION

6.1 Hatton Locks may suspend the provision of a Service, in whole or in part, where:

(i) it is entitled to terminate the Service or this Agreement;

(ii) required to do so by law or by a competent authority;

(iii) necessary to perform Emergency Works;

(iv) the Service is being used unlawfully or in breach of this Agreement; or

(v) the Customer has failed to make any payment when due or Hatton Locks reasonably considers that payment will not be made.

 

6.3 Where suspension arises from the Customer’s breach or non-payment, the Customer shall be liable for all reasonable costs associated with the suspension and restoration of the Service.

6.4 Hatton Locks shall not be liable for any loss arising from a suspension carried out in accordance with this Clause.

 

7 TERM AND TERMINATION

7.1 This Agreement shall commence on the Effective Date and shall continue in force unless and until terminated in accordance with this Clause.

7.2 A Service Order may be terminated in accordance with its terms or, if not specified, on reasonable written notice, without affecting this Agreement or any other Service Order.

7.3 Either Party may terminate a Service Order or this Agreement immediately by written notice if the other Party:

(i) commits a material breach which is incapable of remedy;

(ii) commits a material breach capable of remedy and fails to remedy it within a reasonable period after notice; or

(iii) becomes insolvent or subject to any form of business rescue, liquidation, or similar proceedings.

 

7.4 Either Party may terminate this Agreement where a Force Majeure Event continues for a period of thirty (30) days preventing performance.

7.5 Hatton Locks may terminate a Service Order or this Agreement on written notice if the Customer fails to make payment when due. 

7.6 Termination of this Agreement shall result in the termination of all Service Orders, unless otherwise agreed in writing. 

7.7 Upon termination of this Agreement or a Service Order:

(i) all accrued but unpaid Charges shall become immediately due and payable; and

(ii) each Party shall return or delete the other Party’s Confidential Information upon request.

 

7.8 Termination shall not affect any rights or obligations which by their nature are intended to survive termination.  

 

8 CUSTOMER OBLIGATIONS 

8.1 The Customer shall provide Hatton Locks with such access, information, and cooperation as is reasonably required to enable the provision of the Services. 

8.2 The Customer shall ensure that its systems, infrastructure, and environment are suitable for the receipt of the Services, and that all necessary permissions, licences, and authorisations are in place. 

8.3 The Customer shall comply with all applicable laws in its use of the Services and shall not use the Services for any unlawful purpose. 

8.4 The Customer shall be responsible for:

(i) the security, integrity, and use of its systems, infrastructure, and Customer Data; and

(ii) any acts or omissions of its employees, contractors, or users.

 

8.5 Hatton Locks shall not be liable for any failure of the Services to the extent caused by the Customer’s systems, infrastructure, or actions. 

8.6 The Customer shall indemnify Hatton Locks against any claims, losses, or damages arising from the Customer’s breach of this Agreement or misuse of the Services.

 

9 LIABILITY

9.1 To the extent permitted by law, each Party’s total liability to the other arising out of or in connection with this Agreement shall be limited to the lesser of:

(i) the total Charges paid by the Customer under the relevant Service Order in the twelve (12) months preceding the event giving rise to the claim; or

(ii) R520 000.

9.2 Neither Party shall be liable for any indirect or consequential loss, including loss of profit, revenue, business, or anticipated savings.

9.3 Hatton Locks shall not be liable for:

(i) any loss arising from Customer systems, infrastructure, or third-party services; or

(ii) the content, accuracy, or use of any data within the Customer Environment.

 

9.4 Nothing in this Agreement shall limit or exclude liability for death or personal injury caused by negligence, or any liability which cannot be excluded by law.


10 FORCE MAJEURE

Neither Party shall be liable for any delay or failure in performance of its obligations under this Agreement (other than payment obligations) to the extent caused by a Force Majeure Event.

Any affected obligations shall be suspended for the duration of the Force Majeure Event.

 

11 INTELLECTUAL PROPERTY

11.1 All intellectual property rights owned by a Party prior to or independently of this Agreement shall remain the property of that Party.

11.2 All intellectual property rights in any materials, tools, methodologies, or know-how used or developed by Hatton Locks in the provision of the Services shall remain the property of Hatton Locks.

11.3 To the extent that any deliverables are provided to the Customer as part of the Services, Hatton Locks grants the Customer a non-exclusive, non-transferable licence to use such deliverables for its internal business purposes.

11.4 The Customer shall not use Hatton Locks’s name, trademarks, or branding without prior written consent.

 

12 CONFIDENTIALITY

 

12.1 Each Party shall:

(i) use Confidential Information only for the purposes of this Agreement;

(ii) not disclose Confidential Information to any third party without the prior written consent of the other Party, except to its employees, affiliates, contractors, or professional advisors who require such information for the purposes of this Agreement and who are bound by confidentiality obligations; and

(iii) take reasonable steps to protect the confidentiality of such information.

 

12.2 The obligations in this Clause shall not apply to information which:


(i) is or becomes publicly available other than through a breach of this Agreement;

(ii) was lawfully known to the receiving Party prior to disclosure;

(iii) is independently developed without use of the Confidential Information; or

(iv) is required to be disclosed by law or by a competent authority.

  

13 ASSIGNMENT

 Neither Party may assign, transfer, or otherwise dispose of this Agreement or any Service Order, in whole or in part, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.

 Notwithstanding the above, Hatton Locks may assign this Agreement or any Service Order:

(i) to any of its affiliates; or

(ii) as part of a sale, merger, reorganisation, or transfer of all or a substantial part of its business.

 

14 GENERAL

14.1 If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

14.2 A failure or delay by either Party to exercise any right shall not constitute a waiver of that right.

14.3 Nothing in this Agreement creates any partnership, agency, or joint venture between the Parties.

14.4 This Agreement does not confer any rights on any third party.

14.5 This Agreement may only be amended in writing signed by both Parties.

 

15 NOTICES

Any notice under this Agreement shall be in writing and delivered by hand or sent by email to the relevant contact details notified by each Party.

Notices shall be deemed received on the date of delivery, or if sent by email, on the date of transmission.

Operational or service-related communications may be sent to the Customer’s designated contact by email or other agreed electronic means.

 

16 ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the Parties and supersedes all prior discussions, agreements, or understandings relating to its subject matter.

Each Party acknowledges that it has not relied on any representation not expressly set out in this Agreement, and shall have no remedy in respect of any such representation, except in the case of fraud.

 

17 DISPUTE RESOLUTION

17.1 In the event of a dispute, the Parties shall use reasonable endeavours to resolve the matter through their respective management representatives.

17.2 If the Customer disputes any invoice, it shall notify Hatton Locks in writing before the due date, providing reasonable details of the dispute. Any undisputed portion shall be paid in accordance with this Agreement.

17.3 The Parties shall continue to perform their obligations under this Agreement while any dispute is being resolved, to the extent reasonably practicable.

 

18 CUSTOMER DATA AND PRIVACY

18.1 The Customer acknowledges that Hatton Locks may process Customer Data in connection with the provision of the Services.

18.2 Hatton Locks shall comply with applicable data protection laws in relation to any Regulated Customer Data processed by it in the provision of the Services.

18.3 Hatton Locks shall implement reasonable technical and organisational measures to protect Customer Data against unauthorised access, loss, or disclosure.

18.4 The Customer shall be responsible for ensuring that it has obtained all necessary consents and permissions for the use and processing of Customer Data in connection with the Services.


19 GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of South Africa. The Parties submit to the exclusive jurisdiction of the South African courts.