STANDARD TERMS OF SERVICE

Last updated: 12 September 2024

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INTRODUCTION
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1. ‍These Standard Terms of Service (“Terms”) govern the use of the Services provided by Vallivo (Pty) Ltd t/a Novo42 duly incorporated under the laws of the Republic of South Africa under registration number 2024/167596/07 (“Novo42”) and form part of the Agreement between the Company and Novo42. By entering into the Agreement, you agree to comply with and be bound by these Terms, which are incorporated by reference into the Agreement.
  
  These Terms may, from time to time, be subject to amendment. Novo42 agrees to inform the Company of any changes prior to the changes being effected.

DEFINITIONS AND INTERPRETATION
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1. In the Agreement, unless the context indicates a contrary intention, the following words bear the following meanings and cognate expressions bear corresponding meanings:
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  1. "Affiliate" means, in respect of a Party, any other entity Controlling, Controlled by or under common Control with such Party;
  2. "Applicable Law" means any statute, regulation, policy, by-law, directive, notice or subordinate legislation (including treaties, multinational conventions and the like having the force of law), common law, binding court order, judgement or decree, industry code, standard, direction, or order that is given by a regulatory authority, in each case having the force of law, and which applies to a Party and/or the implementation of the Agreement;
  3. "Causal Event" has the meaning as defined in clause 8.2 of the Terms;
  4. "Chargeback" means a Customer request for the return of an amount to their card following a sale of a Product to that Customer;
  5. "Commencement Date" means the date specified in item 7 of the Schedule;
  6. "Confidential Information" means any information (however recorded or preserved) disclosed by or on behalf of a Party or which otherwise becomes known to the other Party, including technical data, know-how, research, products, business plans, analysis and conversion methodologies, software source code, object code, services, development, inventions, manufacturing processes, production techniques, designs, purchasing, accounting, financial information, assembly drawings, flow charts, engineering, marketing, merchandising, pricing and/or any customer information and any similar information of a Third Party which is in either Party’s possession on a confidential or proprietary basis. Confidential Information also includes information disclosed by a Party’s Affiliates, directors, employees, officers, agents, contractors, representatives, consultants, accountants, or advisors acting on the disclosing Party’s behalf, before or after the Signature Date of the Agreement, to the receiving Party, in any manner whatsoever, including directly or indirectly and "Confidential Information" shall specifically include Materials and information regardless of whether they are in human or machine readable form;
  7. "Control" means, in relation to a Party:
    1. having, directly or indirectly, the power to direct, or cause the direction of, the management and policies of that Party, whether through the ownership of voting securities in that or any other Party, by contract or otherwise; or
    2. holding, directly or indirectly, such securities (or other rights) as confer on the holder thereof the right to exercise, in respect of a Party, more than 50% of all votes exercisable in general meeting of the members of such Party,
  8. "Customers" means customers of the Company in the Territory to whom Products are sold by Novo42;
  9. "Data Protection Laws" means Applicable Law relating to the protection and privacy of Personal Information;
  10. "End User Terms" means the terms and conditions governing the use of the Product by a Customer, as made available by the Company from time to time;
  11. "Force Majeure Event" has the meaning as defined in clause 11.1 of the Terms;
  12. "Intellectual Property" and "Intellectual Property Rights" means all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection wheresoever in the world, including patents, trade marks, present and future rights of copyright, rights in and to designs, rights in and to inventions, topography rights, moral rights, rights in and to the Materials, rights in and to trade secrets, rights in and to trade names, business names, domain names and logos, the right to keep information confidential and private, rights in and to know-how, rights in and to databases (including rights of extraction), and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection as at the Commencement Date or thereafter wheresoever in the world, whether or not any of these is registered and including applications for any such rights or registration thereof and any goodwill related to or arising from such rights;
  13. "Losses" means any losses, damages, costs, claims (including indemnified claims), judgments, penalties (including administrative penalties) or fines;
  14. "Marketing Guidelines" means the written advertising, branding, style, content and related guidelines, restrictions, terms and conditions provided by the Company to Novo42 from time to time in respect of the marketing and promotion of the Products in the Territory;
  15. "Materials" means all materials, software, systems, platforms, applications, technology, products, functional and technical specifications, documentation, research, reports, know-how, inventions, information, designs, studies, models, formulations, methodologies, protocols, techniques, processes, and/or works of authorship, in any form whatsoever and whether confidential or not;
  16. "Parties" means the Company and Novo42 collectively and "Party" shall mean any one of them as determined by the context;
  17. "Personal Information" has the meaning as defined in Data Protection Laws;
  18. "Process", "Processed" and "Processing" has the meaning as defined in Data Protection Laws;
  19. "Product" means the products described in item 9 of the Schedule;
  20. "Product Sale Charges" means the amounts payable by Novo42 to the Company, as more fully set out in item 9 of the Schedule;
  21. "Product Fee" means the price payable by a Customer for a Product from time to time;
  22. "Services" means the Services provided by Novo42 to the Company, as more fully set out in item 10 of the Schedule;
  23. "Service Fees" means the amounts payable by the Company to Novo42, as more fully set out in item 10 of the Schedule;
  24. "Schedule" means the schedule of information set out on the cover page of the Agreement signed between the Parties;
  25. "Signature Date" means, when the Agreement has been signed by each Party (whether or not in counterpart), the latest of the dates on which the Agreement (or any counterpart) was signed by any Party;
  26. "Tax" means any tax including income tax, capital gains tax, secondary tax on companies, VAT, withholding tax, any duty or levy, including skills development levies, stamp duty, uncertificated securities tax, securities transfer tax, transfer duty and customs excise and/or import duty (including any penalty or interest);
  27. "Third Party" means any person other than a Party to the Agreement;
  28. "Territory" means the country or countries outlined in item 8 of the Schedule;
  29. "VAT" means value added tax or goods and services tax as levied under Applicable Law from time to time; and
  30. "Working Day" means a day other than a Saturday, Sunday or public holiday in the Republic of South Africa.
2. In the Agreement:
  1. references to a statutory provision include any subordinate legislation and any modifications or re-enactments thereof;
  2. words importing one gender include all genders; the singular includes the plural and vice versa;
  3. references to a "Person" includes individuals, companies, corporate entities, charities, trusts, partnerships, joint ventures, syndicates, or any association of persons;
  4. if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable;
  5. where any number of days is prescribed, those days are calculated exclusively of the first and inclusively of the last, unless the last day is not a Working Day, in which case it moves to the next Working Day;
  6. where the day upon or by which any act is required to be performed is not a Working Day, those acts are deemed to occur on the next Working Day;
  7. the use of any expression covering a process available under South African law shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction; and
  8. the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply, and whenever the word "including" is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
3. Each of the provisions of the Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting or preparation of the Agreement (ie the contra proferentem rule), shall not apply.
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INVOICING DISPUTES
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1. Where a Party in good faith disputes the amount reflected on an invoice, such Party shall send the other Party a written notice (the "Disputed Amount Notice") within 14 days of the date of invoice. The Disputed Amount Notice shall contain a reasonably detailed explanation of the disputing Party's calculation of the disputed amount and the basis of the disputed amount, as well as the aggregate amount of any proposed adjustments.
2. The Parties shall use their reasonable efforts for a period of 30 days after the other Party's receipt of the Disputed Amount Notice, or such longer period as the Parties may agree to in writing, to attempt to resolve any disagreements over the disputed amount in good faith. Where the Parties are unable to resolve the matter as such within the 30 day period contemplated in this clause 3.2, either Party may refer the matter in terms of clause 12 of the Terms.
3. During the period contemplated in clause 3.2, the Parties shall continue to settle all other invoices due and payable in accordance with the terms of clause 7 of the Specific Terms and this clause 3. Any undisputed amount on or undisputed portion of an invoice that may be subject to a Disputed Amount Notice shall be paid in accordance with the terms of clause 7 of the Specific Terms and this clause 3.
4. A Party shall not be entitled to withhold all or part of any payment of an invoice unless a Disputed Amount Notice has been delivered to the other Party in accordance with clause 3.1.
SUB-CONTRACTING
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1. The Company agrees that Novo42 may from time to time appoint subcontractors to perform Novo42's obligations in terms of the Agreement, and which may include Novo42's Affiliates as well as Third Parties. As part of such subcontracting, Novo42 shall from time to time share Confidential Information (and which may include Personal Information) with such subcontractors in order to implement the terms of the Agreement.
2. The Company agrees that Novo42 may from time to time appoint subcontractors to perform Novo42's obligations in terms of the Agreement, and which may include Novo42's Affiliates as well as Third Parties. As part of such subcontracting, Novo42 shall from time to time share Confidential Information (and which may include Personal Information) with such subcontractors in order to implement the terms of the Agreement.
INTELLECTUAL PROPERTY RIGHTS
1. All rights, title, ownership, and interest in and to any Materials and Intellectual Property Rights, which belong to any of the Parties and/or their Third Party licensors (as the case may be), shall at all times remain the sole property of such Party and/or such Third Party licensors.
2. A Party shall not, by virtue of the Agreement, obtain or claim any right, title, or interest in or to the other Party's Intellectual Property.
3. Each Party acknowledges that where any improvements, developments, or advancements to a Party's Intellectual Property and/or any related Material are made pursuant to the terms of the Agreement, then the ownership in such improvements, developments or advancements shall vest in such Party.
4. A Party shall not, during the currency of the Agreement or thereafter:
  1. cause to be done or omit to do, any act or thing contesting or in any way impairing or tending to impair any part of the other Party's right, title, and interest in and to that Party's Intellectual Property;
  2. to the extent possible in law, directly or indirectly register (or apply for the registration of) any Intellectual Property Rights relating to the other Party's Intellectual Property;
  3. dispute or assist any Third Party in disputing the validity of any of the other Party's Intellectual Property; and/or
  4. claim or seek to obtain any proprietary right in respect of the other Party's Intellectual Property.
5. A Party may not use, modify, copy, translate or otherwise reproduce the other Party's Intellectual Property or any part thereof, or any other related Material provided by the other Party to it, or make these available to any Third Parties.
6. A Party may not adapt, develop, create any derivative work, reverse engineer, decompile, disassemble, or carry out any act otherwise restricted by copyright or other Applicable Law relating to the other Party's Intellectual Property.
CONFIDENTIALITY AND DISCLOSURE
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1. Each Party shall keep confidential and shall not disclose to any person any Confidential Information.
2. The Party receiving any Confidential Information undertakes and agrees that:
  1. the other Party's Confidential Information that it receives, or which otherwise comes to its knowledge, is proprietary to the other Party;
  2. the terms of the Agreement do not confer any rights of whatsoever nature in such Confidential Information on it; and
  3. it shall not exploit, commercialise or otherwise make use of the other Party's Confidential Information in any manner not provided for in the Agreement.
3. Each of the Parties agrees to keep all Confidential Information confidential and to disclose it only to their respective officers, directors, subcontractors, employees, consultants and professional advisors who have a need to know the Confidential Information, are aware that the Confidential Information should be kept confidential, are aware of the disclosing Party's undertaking in relation to such information in terms of the Agreement, and have been directed by the disclosing Party to keep the Confidential Information confidential.
4. Confidential Information does not include any information which:
  1. is required to be disclosed by the provisions of Applicable Law, or during any court proceedings, or by the rules or regulations of any recognised stock exchange, it being agreed that the Party required to make such disclosure will, as far as reasonably possible and subject to Applicable Law, limit the extent of such disclosure and consult with the other Party prior to making such disclosure;
  2. is in the public domain at the time learned by or communicated to the recipient through no fault of the recipient;
  3. is obtained by the recipient from a Third Party lawfully in possession of such information and not subject to a contractual or fiduciary relationship to the provider of the Confidential Information; and/or
  4. is already known to the recipient or is independently derived by the recipient without reference to the Confidential Information.
5. Neither Party shall issue any public document relating to or connected with or arising out of the Agreement (save for any announcement or document which is required to be given, made or published in terms of Applicable Law or under the rules and regulations of a regulatory body) without obtaining the prior written approval of the other Party as to the contents thereof and the manner of its presentation and publication, save where prohibited by Applicable Law. In the case of a release, announcement or document which is required to be given, made or published in terms of Applicable Law or under the rules of a regulatory body, the Party liable to give, make or publish the same shall give to the other Party as much advance notice thereof as is reasonable and legally permitted in the circumstances together with drafts or a copy thereof as soon as it is at liberty so to do.
DATA PRIVACY AND PROTECTION
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1. Each Party agrees to comply with its obligations under Data Protection Laws in respect of any Personal Information it Processes pursuant to the exercise of its rights and performance of its obligations under the Agreement.
2. Where Novo42 is an operator or processor of Personal Information in respect of which the Company is the controller or responsible party, Novo42 shall comply with those Data Protection Laws that apply to it in its capacity as operator or processor and shall procure that its subcontractors (including sub-processors) comply with Data Protection Laws.
3. Each Party shall without delay notify the other Party in the event that there is any non-compliance with or breach of any applicable Data Protection Laws.
4. Without derogating from the generality of the foregoing, each Party must:
  1. have all notices and consents and lawful bases in place as are prescribed by Applicable Law to enable the lawful Processing of Personal Information in terms of the Agreement;
  2. Process any Personal Information that is shared with it or that comes into its possession for the purposes of the implementation of the Agreement only;
  3. treat any Personal Information that is shared with it or that comes into its possession as confidential; and
  4. secure the integrity and confidentiality of any Personal Information that is shared with it or that comes into its possession by taking appropriate reasonable technical and organisational measures to prevent loss of, damage to, or unauthorised destruction of Personal Information and unlawful access to or Processing of such Personal Information.
BREACH AND TERMINATION
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1. If a Party commits:
  1. a material breach of the Agreement and, provided the breach in question is capable of remedy, fails to remedy such breach within 21 days of notice thereof from the aggrieved Party; and/or
  2. a material breach of the Agreement that is not capable of being remedied,
    
    then the aggrieved Party shall be entitled, in addition to any other rights and remedies that it may have in terms of the Agreement or in terms of Applicable Law, to terminate the Agreement and/or any or all obligations hereunder (in whole or in part) upon written notice to the defaulting Party, without prejudice to any claims which the aggrieved Party may have for damages against the defaulting Party or otherwise in terms of Applicable Law.
2. Each Party shall have the right to terminate the Agreement upon written notice to the other Party where the other Party:
  1. is financially distressed;
  2. is provisionally or finally liquidated or wound-up or placed under curatorship;
  3. makes any offer of compromise to its creditors;
  4. gives any notice of a meeting or resolution of its shareholders to adopt a resolution placing it in liquidation, whether provisionally, voluntary or finally; and/or
  5. resolves to commence or commences business rescue proceedings or any analogous proceedings,
    
    (each a "Causal Event").
3. Termination of the Agreement, however and whenever occurring, shall not prejudice or affect any contractual right or entitlement, right of action or remedy accruing to any Party up to the date of such termination.
4. Upon termination of the Agreement:
  1. the Company shall pay to Novo42 all Service Fees properly due and owing up to the effective date of termination;
  2. Novo42 shall (i) pay to the Company all Product Sale Charges properly due and owing up to the effective date of termination, and (ii) cease selling the Products in the Territory; and
  3. each Party shall:
    1. cease all use of the other Party's Confidential Information and/or Intellectual Property; and
    2. upon demand return to the other Party or otherwise dispose of, as such other Party may require, all Confidential Information and/or Intellectual Property of the other Party.
WARRANTIES AND UNDERTAKINGS
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1. Each Party warrants to the other Party on the Signature Date, the Commencement Date and for the duration of the Agreement that:
  1. it is duly incorporated, registered and existing under the laws of the country from which it originates;
  2. it has taken all necessary corporate and/or internal action to authorise the execution and performance of the Agreement;
  3. the Agreement constitutes an agreement that is legal, valid, binding, and enforceable against it in accordance with its terms; and
  4. the provisions of the Agreement are not in conflict with, and shall not constitute a breach of, the provisions of, any other agreement, obligation, restriction or undertaking which is binding on it.
2. Each Party undertakes to the other Party on the Signature Date, the Commencement Date and for the duration of the Agreement that:
  1. it is and shall remain fully cognisant of and compliant with Applicable Law relevant to the terms of the Agreement and/or its obligations in terms of the Agreement; and
  2. it has and shall have all necessary licences, certificates, authorisations, and consents required (whether under Applicable Law or otherwise) in order to implement the terms of the Agreement and perform its obligations in terms of the Agreement.
LIMITATION OF LIABILITY
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1. To the fullest extent permitted in terms of Applicable Law, the Parties agree that in the event of a breach of any of the provisions of the Agreement, the defaulting Party shall only be liable to the other Party for Losses which constitute direct damages and that the defaulting Party's liability for such Losses shall be limited to an amount equal to 100% of the Service Fees paid or payable under the Agreement in the 12 months immediately preceding such breach.
2. Where the relevant liability arises before the first anniversary of the Commencement Date, then the defaulting Party's liability for such Losses shall be limited to an amount equal to 100% of the Service Fees which would have been payable during the first 12 month period of the Agreement.
3. Nothing in the Agreement shall exclude or in any way limit a Party's liability to the other Party in respect of (i) fraud, theft, death or personal injury caused by a Party's wilful misconduct or gross negligence, and (ii) any liability to the extent that it may not be excluded or limited as a matter of Applicable Law.
4. For clarity, in the event of a breach of any of the provisions of the Agreement, the defaulting Party shall only be liable to the non-defaulting Party for direct damages. Under no circumstances shall the defaulting Party be liable to the non-defaulting Party for any Losses which constitute indirect, special and/or consequential damages.
FORCE MAJEURE
1. For the purposes of the Agreement, the expression "Force Majeure Event" shall mean any event which is caused, directly or indirectly, without fault by an affected Party, by fire, explosion, flood, storms, earthquake, epidemic, pandemic, elements of nature or acts of God; labour disruptions or strikes of Third Parties; acts of war, network failure (both cellular and internet), sabotage, insurrections, terrorism, riots, civil disorders or disturbances, rebellions or revolutions; quarantines, blockades, embargoes and other similar governmental action; act of governmental body or military authority or any other similar cause which is beyond the reasonable control of an affected Party and which such Party could not reasonably anticipate, prevent or mitigate by means of reasonable precautions, contingency planning or any other prudent business means and which cannot reasonably be circumvented by the affected Party through the use of alternate sources, work-around plans or other means.
2. An event shall only be considered a Force Majeure Event if it is not attributable to the neglect, default, or other failure to take reasonable precautions of the affected Party, its agents, staff or contractors. Industrial dispute or action by a Party's staff shall not give rise to an event of Force Majeure.
3. Neither Party shall be liable to the other Party for any Loss caused to or incurred by that other Party by reason of any failure or delay in the performance of its obligations which is due to a Force Majeure Event.
4. If any Party becomes aware of a Force Majeure Event which shall give rise to or which is likely to give rise to any failure or delay on its part, it shall, as soon as reasonably possible, notify the other Party and shall inform the other Party of the period for which it is estimated that such failure or delay shall continue.
5. If a Party is unable to comply with any of its material obligations under the Agreement for a period of more than 30 days due to a Force Majeure Event which gives rise to relief from liability under this clause 11, then the other Party shall be entitled to terminate the Agreement immediately by giving notice to the other Party.
6. Neither Party shall have liability to the other Party with respect to any termination pursuant to this clause 11.
7. A Force Majeure Event shall not relieve a Party of its duty to implement plans in order to restore the performance of its obligations under the Agreement as soon as possible.
DISPUTE RESOLUTION

‍Any dispute arising from the Agreement shall be subject to the dispute resolution procedures stipulated in this clause 12.
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1. Informal dispute resolution:
  Prior to the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve the dispute informally by way of negotiation between the relevant representatives of the Parties.
2. Arbitration
  If the Parties are unable to resolve a dispute within 10 Working Days in the manner described in clause 12.1, then such dispute shall on written demand by either Party to the dispute be submitted to arbitration in Cape Town, the Republic of South Africa in accordance with the rules of the Arbitration Foundation of South Africa ("AFSA") by an arbitrator/s appointed in accordance with the AFSA Rules of Arbitration (in their latest iteration) ("AFSA Rules"). The following shall apply to the commencement of the arbitration:
  1. the Parties shall request that the arbitrator/s appointed by AFSA commence the arbitration within 21 days;
  2. should the Parties fail to agree on an arbitrator within 10 days after arbitration has been demanded, the arbitrator shall be nominated at the request of any Party to the dispute by the AFSA, in accordance with the AFSA Rules;
  3. the Parties shall request that the arbitrator render their decision within 14 days following the conclusion of the hearing;
  4. the arbitrator's decision shall, in the absence of manifest error, be final and binding on the Parties and shall not be subject to appeal;
  5. the arbitrator's decision may be made an order of court at the instance of any Party to the arbitration; and
  6. the arbitration shall be held in the English language.
3. Urgent relief
  Proceedings in terms of this clause 12 shall not be construed to prevent the Parties from instituting formal proceedings in any court of competent jurisdiction to obtain timely interim or urgent relief and/or for judgement in relation to a liquidated claim.
4. Continued performance
  Each Party agrees to continue performing its obligations under the Agreement while any dispute is being resolved.
NOTICES AND DOMICILIA
1. The Parties choose the following physical addresses at which documents in legal proceedings in connection with the Agreement may be served (ie their domicilia citandi et executandi) and to which any written notice in connection with the Agreement may be addressed:
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  1. Novo42:
    Physical address: The Refinery, LongkloofStudios, Darters Road, Gardens, Cape Town, Western Cape, 8001
    Email address: erica@novo42.com
    Marked for the attention of: Erica Bester
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  2. The Company:
    Physical address: As set out in item 5 of the Schedule;
    Email address: As set out in item 6 of the Schedule;
    Marked for the attention of: As set out in item 4 of the Schedule.
2. The notice shall be deemed to have been duly given:
  1. 5 Working Days after posting (14 Working Days if the address is not in the Republic of South Africa), if posted by registered post (airmail, if available) to the Party's physical address;
  2. on delivery, if delivered to the Party's physical address before 17h00 on a Working Day, or if delivered on a Working Day but after 17h00 on that Working Day or on any day other than a Working Day, it shall be deemed to have been given at 08h30 on the first Working Day after it was delivered;
  3. on despatch, if sent to the Party's then e-mail address before 17h00 on a Working Day or if sent on a Working Day but after 17h00 on that Working Day, or on any day other than a Working Day, it shall be deemed to have been given at 08h30 on the first Working Day after it was sent,
    
    unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
3. A Party may change that Party's address or e-mail address for this purpose by notice in writing to the other Party, such change to be effective only on and with effect from the 7^thWorking Day after the giving of such notice.
4. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to that Party notwithstanding that it was not sent to or delivered at that Party's chosen physical or email address in clause 13.1.
GENERAL
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1. Governing law and jurisdiction:
  The Agreement and performance under it shall be governed by and construed in accordance with the laws of the Republic of South Africa and, subject to clause 12 each of the Parties hereby submits to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape Division, Cape Town in respect of all matters arising out of the Agreement.
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2. Binding nature and assignment:
  Subject to clause 4.1 of the Specific Terms, neither Party may cede, delegate, or assign its rights or obligations, as applicable, under the Agreement without the other Party's prior written consent, which consent shall not be unreasonably withheld.
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3. Benefit of the Agreement:
  The Agreement shall also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.
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4. Non-solicitation:
  During the term of the Agreement, and for a period of 1 year thereafter, neither Party shall directly or indirectly solicit or encourage, or attempt to solicit or encourage, any staff member of the other that was directly or indirectly involved in the implementation or performance of the Agreement to leave the employment of the other. It shall not be a violation of this provision for either Party to advertise its openings in generally available media and to hire the other's staff members who contact it as a consequence of a public bona fide advertisement. For the purposes of this clause, a public advertisement shall not be regarded as being bona fide in circumstances where it is shown that such advertisement could reasonably be regarded as having been designed specifically to target the staff of the other Party.
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5. Severability:
  If any provision of the Agreement is held invalid, illegal, or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Agreement shall continue in full force and effect as if the Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of any such severance, the Parties shall negotiate in good faith with a view to replacing the provisions so severed with legal and enforceable provisions that have similar economic and commercial effect to the provisions so severed.
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6. Variation and waiver:
  No contract varying, adding to, deleting from or cancelling the Agreement, and no waiver of any right under the Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
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7. Entire agreement:
  The Agreement constitutes the entire understanding between the Parties relating to the subject matter of the Agreement and supersedes all prior representations, writings, negotiations, or understandings with respect hereto, except in respect of any fraudulent misrepresentation made by a Party.
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8. Survival:
  Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect. In particular, the provisions of clauses 5, 6 and 7 are severable from the rest of the Agreement and shall survive the expiry or termination of the Agreement for whatever reason.
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9. Costs and expenses:
  Each Party shall bear its own costs and expenses (including legal costs) in respect of the preparation and signature of the Agreement.
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10. Counterparts: The Agreement may be executed in any number of counterparts, each of which when so executed shall be an original and which, together, shall constitute one agreement.

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