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TERMS AND CONDITIONS OF SERVICE
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions ("Agreement"), unless the context indicates otherwise:
1.1 "Cognexa", "we", "us" or "our" means Cognexa (PTY) Ltd, a private company duly incorporated under the laws of the Republic of South Africa, with its principal place of business in Johannesburg.
1.2 "Client", "you" or "your" means the natural or juristic person who engages Cognexa for the provision of Services and accepts these Terms and Conditions.
1.3 "Services" means any information technology, software development, systems integration, IT consulting, managed services, hosting, support, automation, AI/ML implementation, cybersecurity, infrastructure, cloud services, web development, or any related services provided by Cognexa under a Statement of Work, Quotation, Proposal, or Service Order.
1.4 "Deliverables" means any tangible or intangible output produced by Cognexa for the Client under the Services, including but not limited to source code, documentation, designs, configurations, reports, and data.
1.5 "Setup Fee" means any one-time, once-off, onboarding, implementation, configuration, migration, design, or initiation fee charged to the Client at the commencement of the Services, irrespective of how it is labelled in any invoice or Statement of Work.
1.6 "Annual Price" means the total recurring fees payable by the Client for a 12-month service period, exclusive of the Setup Fee, third-party costs, and any chargeable variations.
1.6A "Month-to-Month Term" means a rolling, non-committed engagement billed monthly in advance, terminable on thirty (30) days' written notice by either party.
1.6B "Bi-Annual Term" (also "Semi-Annual Term") means a fixed, committed six (6) month service term, billed in advance for the full six-month period or in equal monthly instalments at Cognexa's discretion.
1.6C "Annual Term" means a fixed, committed twelve (12) month service term, billed in advance for the full twelve-month period or in equal monthly instalments at Cognexa's discretion.
1.6D "Committed Term" means either a Bi-Annual Term or an Annual Term.
1.7 "Statement of Work" or "SOW" means any written quotation, proposal, scope document, or service order signed or accepted by the Client which describes the specific Services to be delivered.
1.8 "Confidential Information" has the meaning set out in clause 12.
1.9 "Effective Date" means the date on which the Client accepts a Statement of Work, makes payment of any deposit or invoice, or otherwise commences receipt of the Services - whichever occurs first.
1.10 Headings are for convenience only and shall not affect interpretation. Words importing the singular include the plural and vice versa.
2. ACCEPTANCE AND APPLICATION
2.1 By signing a Statement of Work, accepting a quotation, paying an invoice (in whole or in part), or otherwise instructing Cognexa to commence Services, the Client unconditionally accepts and is bound by this Agreement.
2.2 This Agreement applies to all Services rendered by Cognexa and supersedes any conflicting terms proposed by the Client (including any terms contained in a Client purchase order), unless expressly accepted in writing and signed by an authorised representative of Cognexa.
2.3 In the event of conflict between this Agreement and a Statement of Work, the Statement of Work shall prevail only to the extent of the specific scope described therein. All other terms of this Agreement remain in full force and effect.
3. SCOPE OF SERVICES
3.1 Cognexa shall provide the Services described in the applicable Statement of Work with reasonable skill, care and diligence in accordance with prevailing industry standards.
3.2 Any work, feature, integration, deliverable, or scope item not expressly listed in the Statement of Work is excluded and shall be subject to a separate written Change Request and additional fees.
3.3 Estimated timelines, milestones, and delivery dates are good-faith estimates only and are not binding unless expressly stated as "fixed" in writing. Cognexa shall not be liable for delays caused by Client inaction, third-party dependencies, or matters outside Cognexa's reasonable control.
3.4 The Client acknowledges that IT and software projects are inherently iterative and that the discovery of additional requirements during execution is normal and may result in Change Requests.
4. CLIENT OBLIGATIONS
4.1 The Client shall:
4.1.1 Provide timely, accurate and complete information, access, credentials, approvals and feedback reasonably required for Cognexa to perform the Services;
4.1.2 Designate a single authorised point of contact empowered to make decisions on the Client's behalf;
4.1.3 Respond to requests for input, sign-off or approval within five (5) business days, failing which Cognexa may proceed on reasonable assumptions without liability;
4.1.4 Ensure all data, content, and materials supplied to Cognexa do not infringe any third-party rights and comply with applicable law;
4.1.5 Pay all fees and charges when due in accordance with clause 5; and
4.1.6 Maintain backups of any data hosted, processed, or held by the Client outside of Cognexa's directly managed environments.
4.2 Cognexa shall not be liable for any delay, defect, cost, or damage arising from the Client's failure to comply with clause 4.1.
5. FEES, INVOICING AND PAYMENT
5.1 The Client shall pay all fees set out in the applicable Statement of Work, including the Setup Fee, recurring monthly or annual subscription fees, professional services fees, third-party pass-through costs, and any variations.
5.2 Unless otherwise agreed in writing:
5.2.1 The Setup Fee is payable in full and in advance before any work commences and is non-refundable under any circumstances whatsoever;
5.2.2 Recurring fees are billed monthly or annually in advance;
5.2.3 Project-based fees are payable 50% on commencement and 50% on delivery, unless otherwise specified;
5.2.4 All invoices are payable within seven (7) days of issue.
5.3 All fees are quoted in South African Rand (ZAR) and are exclusive of Value-Added Tax (VAT) unless expressly stated otherwise. VAT will be added at the prevailing rate where applicable.
5.4 Late Payment: Overdue amounts shall attract interest at the prime lending rate of Cognexa's bankers plus 3% per annum, calculated daily and compounded monthly, from the due date until paid in full. Cognexa reserves the right to suspend any or all Services without notice if any invoice is overdue by more than seven (7) days, without prejudice to any other remedy.
5.5 The Client shall not be entitled to withhold, set off, or deduct any amount from sums owing to Cognexa for any reason whatsoever.
5.6 Cognexa may pass through, at cost or with a reasonable handling margin, third-party costs incurred on the Client's behalf (including but not limited to cloud hosting, software licences, domains, SSL certificates, API usage, and SaaS subscriptions).
5.7 Cognexa reserves the right to revise its fees on thirty (30) days' written notice, effective from the next billing cycle.
5.8 Contract Term Options and Term Discounts
5.8.1 The Client must elect one of the following contract term options at the commencement of the Services, as recorded in the Statement of Work:
(a) Month-to-Month Term - the standard rolling term billed monthly in advance at the full list price, with no term discount;
(b) Bi-Annual Term (6-month commitment) - a fixed six (6) month committed term, qualifying for a ten percent (10%) discount off the equivalent Month-to-Month list price for the duration of the committed term;
(c) Annual Term (12-month commitment) - a fixed twelve (12) month committed term, qualifying for a twenty percent (20%) discount off the equivalent Month-to-Month list price for the duration of the committed term.
5.8.2 Where the Client does not expressly elect a Bi-Annual Term or an Annual Term in writing, the engagement shall be deemed a Month-to-Month Term by default and no term discount shall apply.
5.8.3 Term discounts are calculated on recurring service fees only. They do not apply to:
(a) The Setup Fee;
(b) Third-party pass-through costs (hosting, licences, domains, APIs, SaaS subscriptions, etc.);
(c) Out-of-scope work, Change Requests, or professional services billed on a time-and-materials basis;
(d) Any once-off or project-based fees.
5.8.4 Pre-payment requirement for discounted terms: To qualify for the 10% Bi-Annual or 20% Annual discount, the Client must either (i) pay the full discounted term fee in advance, or (ii) commit in writing to the full term and pay equal monthly instalments by debit order or recurring card mandate. Cognexa reserves the right to require advance payment as a condition of granting the discount.
5.8.5 Auto-renewal of Committed Terms: Bi-Annual and Annual Terms shall automatically renew for successive terms of equal length on the same pricing and discount basis, unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term. Upon non-renewal, the engagement shall convert to a Month-to-Month Term at the prevailing list price.
5.8.6 Discount Clawback on Early Cancellation: If the Client cancels or terminates a Bi-Annual Term or Annual Term before the expiry of the committed term for any reason, the Client shall, in addition to any amounts payable under clause 6.1, immediately repay to Cognexa the full Rand value of all term discounts received to date, such that all Services consumed during the committed term shall be deemed to have been provided at the full Month-to-Month list price.
5.8.7 Upgrades and downgrades: The Client may at any time upgrade from Month-to-Month to Bi-Annual or Annual, or from Bi-Annual to Annual, with the new term commencing on the next billing cycle. Downgrades and changes that shorten the committed term are not permitted mid-term and may only take effect at the natural end of the current committed term, on thirty (30) days' written notice in accordance with clause 5.8.5.
6. CANCELLATION AND EARLY TERMINATION
6.1 Early Cancellation of a Committed Term - 50% Repayment Clause
6.1.1 Where the Client has engaged Cognexa on a Committed Term (i.e. a Bi-Annual Term or an Annual Term as defined in clauses 1.6B and 1.6C, whether paid in advance or in equal monthly instalments) and elects to cancel, terminate, or otherwise discontinue the Services for any reason before the expiry of the committed term, the Client shall be liable to pay Cognexa an early-termination fee equal to fifty percent (50%) of the remaining contract value for the unexpired portion of the committed term, calculated on the full Month-to-Month list price (i.e. before application of the term discount).
6.1.2 For the avoidance of doubt, where the Client has elected an Annual Term and cancels within the first twelve (12) months, the early-termination fee shall be fifty percent (50%) of the remaining Annual Price for the unexpired portion of the 12-month term, in addition to the discount clawback under clause 5.8.6.
6.1.3 This early-termination fee is a genuine pre-estimate of the loss and damages Cognexa will suffer as a consequence of premature cancellation, including but not limited to allocated resources, foregone opportunity, ramp-up costs, and forward-committed third-party expenses. The parties expressly agree that this amount is reasonable, fair, and not a penalty.
6.1.4 The 50% early-termination fee:
(a) Is payable within seven (7) days of the cancellation taking effect;
(b) Is in addition to all amounts already accrued and payable up to the cancellation date;
(c) Is in addition to (and does not refund) the Setup Fee, which remains non-refundable;
(d) Is in addition to the discount clawback payable under clause 5.8.6;
(e) Applies whether cancellation is initiated by the Client, or by Cognexa as a result of the Client's material breach pursuant to clause 6.3.
6.1.5 For clarity: where the Client has paid for a Committed Term in advance, Cognexa shall be entitled to retain 50% of the unutilised portion (calculated on the full list price) as the early-termination fee, plus the full Rand value of all term discounts received, and shall refund the balance, less the Setup Fee and any third-party costs already incurred.
6.1.6 Month-to-Month cancellation: Where the Client has elected a Month-to-Month Term, the Client may terminate the Services on thirty (30) days' written notice without incurring the 50% early-termination fee, provided the Client has paid all amounts due up to the effective date of termination. The Setup Fee remains non-refundable.
6.1.7 No refunds: Save where expressly required by applicable law, all fees paid to Cognexa are non-refundable. No refund is available on the Setup Fee, recurring fees already paid, or third-party costs already incurred, regardless of cause of termination.
6.2 Termination by Either Party for Convenience After Expiry of a Committed Term
6.2.1 After expiry of any Committed Term (or where the Client is on a Month-to-Month Term), either party may terminate this Agreement on thirty (30) days' written notice to the other party, save that for an Annual Term that has rolled into a renewed Annual Term, the notice required to prevent further auto-renewal is governed by clause 5.8.5.
6.3 Termination for Cause
6.3.1 Cognexa may immediately suspend or terminate Services, without refund, if the Client:
(a) Fails to pay any invoice within fourteen (14) days of the due date;
(b) Commits a material breach which is not remedied within seven (7) days of written notice;
(c) Becomes insolvent, is placed under business rescue, liquidation, sequestration, or any analogous process;
(d) Engages in unlawful, abusive, or fraudulent conduct, or uses the Services for unlawful purposes;
(e) Threatens, harasses, or behaves abusively toward Cognexa personnel.
6.3.2 Termination by Cognexa under clause 6.3 shall not affect the Client's obligation to pay the 50% early-termination fee pursuant to clause 6.1.
6.4 Effect of Termination
6.4.1 On termination:
(a) All amounts outstanding become immediately due and payable;
(b) Cognexa shall cease providing the Services and may revoke access to systems, environments, and tools;
(c) The Client may request transfer of Deliverables in respect of which all fees have been paid in full, subject to clause 9 (Intellectual Property);
(d) Cognexa shall, on reasonable written request and at the Client's reasonable cost, provide handover assistance for a maximum of fourteen (14) days post-termination.
6.4.2 Cognexa is under no obligation to retain Client data, code, or configurations beyond thirty (30) days post-termination, after which such materials may be permanently deleted without further notice.
7. CHANGE REQUESTS
7.1 Any request by the Client to amend, expand, or otherwise alter the agreed scope must be submitted in writing.
7.2 Cognexa shall provide a written Change Request quotation setting out the additional fees, revised timelines, and any impact on existing Deliverables.
7.3 No change shall be implemented until the Change Request is signed or accepted in writing by the Client.
8. WARRANTIES AND DISCLAIMERS
8.1 Cognexa warrants that the Services will be performed with reasonable skill and care in accordance with industry standards.
8.2 TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND TERMS - WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE - ARE EXCLUDED. Without limiting the foregoing, Cognexa makes no warranty that:
(a) The Services or Deliverables will be uninterrupted, error-free, or free of vulnerabilities;
(b) The Services will achieve any particular commercial, operational or financial outcome;
(c) Any third-party services, APIs, libraries, or platforms will continue to operate or remain available;
(d) AI-generated, AI-assisted, or machine-learning-derived outputs will be accurate, complete, lawful, or fit for any particular purpose. The Client acknowledges that AI/ML systems are probabilistic by nature and require human oversight.
8.3 Cognexa is not an insurer, guarantor, or warrantor of business outcomes. The Client is solely responsible for evaluating the suitability of the Deliverables for its purposes prior to deployment in production.
8.4 Defects must be reported in writing within seven (7) days of discovery. Cognexa's sole obligation in respect of valid defects reported within ninety (90) days of delivery is, at Cognexa's election, to repair, replace, or re-perform the affected portion of the Services.
9. INTELLECTUAL PROPERTY
9.1 Pre-existing IP: All intellectual property rights in any tools, frameworks, libraries, code, methodologies, templates, and know-how owned by Cognexa prior to or independently developed outside of the Services ("Cognexa IP") shall remain the exclusive property of Cognexa.
9.2 Custom Deliverables: Subject to full and final payment of all fees, Cognexa grants the Client a perpetual, non-exclusive, worldwide, royalty-free licence to use the bespoke portions of the Deliverables solely for the Client's internal business purposes.
9.3 Where expressly stated in a Statement of Work, ownership of bespoke Deliverables may be assigned to the Client upon full payment, save that any embedded Cognexa IP shall remain the property of Cognexa and shall be licensed under clause 9.2.
9.4 Until full payment is received, all rights in the Deliverables vest in Cognexa and the Client shall have no right to use, copy, modify, distribute, or deploy the Deliverables.
9.5 Cognexa retains the right to:
(a) Re-use general skills, know-how, experience, and non-Confidential techniques acquired during the Services;
(b) Reference the Client and the project in its portfolio, marketing materials, case studies, and proposals (using only the Client's name, logo and a high-level description) unless the Client notifies Cognexa in writing of an objection.
9.6 The Client warrants that all materials, data, and content supplied to Cognexa do not infringe any third-party intellectual property, privacy, or proprietary rights, and indemnifies Cognexa against any claim arising from such materials.
10. LIMITATION OF LIABILITY
10.1 Cognexa's aggregate liability to the Client under or in connection with this Agreement, whether arising in contract, delict (tort), under statute, or on any other basis, shall be limited to the total fees paid by the Client to Cognexa in the three (3) months immediately preceding the event giving rise to the claim.
10.2 Cognexa shall under no circumstances be liable for any:
(a) Indirect, incidental, consequential, special, exemplary or punitive damages;
(b) Loss of profit, revenue, business, goodwill, anticipated savings, or opportunity;
(c) Loss, corruption, or unauthorised disclosure of data;
(d) Business interruption or downtime;
(e) Damage caused by third-party services, software, or platforms;
(f) Loss arising from the Client's failure to comply with its obligations under this Agreement;
(g) Loss arising from cybersecurity incidents, save where directly caused by Cognexa's gross negligence or wilful misconduct.
10.3 Nothing in this Agreement excludes or limits liability for death, personal injury caused by gross negligence, fraud, or any other liability that may not lawfully be excluded.
10.4 The Client acknowledges that the limitations in this clause are reasonable having regard to the fees charged and the nature of IT services, and that the allocation of risk reflected here is a fundamental element of the commercial bargain between the parties.
11. INDEMNITY
11.1 The Client indemnifies and holds harmless Cognexa, its directors, employees, agents and subcontractors from and against any and all claims, damages, losses, fines, penalties, costs and expenses (including legal costs on the attorney-and-own-client scale) arising from or in connection with:
(a) The Client's breach of this Agreement;
(b) The Client's use or misuse of the Services or Deliverables;
(c) Any content, data, or instructions provided by the Client;
(d) Any third-party claim that the Client's data or materials infringe rights or violate law;
(e) The Client's failure to comply with applicable laws including but not limited to the Protection of Personal Information Act, 2013 ("POPIA"), tax, consumer protection, and electronic communications laws.
12. CONFIDENTIALITY
12.1 Each party ("Receiving Party") shall keep confidential all non-public information disclosed by the other party ("Disclosing Party") and shall use such information solely for the purposes of performing this Agreement.
12.2 Confidentiality obligations survive termination for a period of five (5) years.
12.3 Confidentiality obligations do not apply to information that:
(a) Is or becomes publicly available without breach;
(b) Was lawfully known to the Receiving Party before disclosure;
(c) Is independently developed without reference to the Disclosing Party's information;
(d) Is required to be disclosed by law, court order, or regulatory authority.
13. DATA PROTECTION (POPIA)
13.1 Both parties shall comply with the Protection of Personal Information Act, 2013 (POPIA) and all other applicable data protection laws.
13.2 Where Cognexa processes personal information on behalf of the Client, Cognexa acts as an Operator (as defined in POPIA) and shall:
(a) Process personal information only on the documented instructions of the Client;
(b) Implement reasonable technical and organisational security measures;
(c) Notify the Client without undue delay of any confirmed personal information breach affecting the Client's data.
13.3 The Client is the Responsible Party (as defined in POPIA) in respect of personal information it submits or causes to be processed via the Services and warrants that it has all lawful bases necessary for such processing.
13.4 Where the Services involve cross-border processing, the Client authorises Cognexa to use sub-processors and international cloud infrastructure providers, subject to appropriate safeguards.
14. THIRD-PARTY SERVICES
14.1 The Services may incorporate, depend on, or interoperate with third-party platforms, software, APIs, AI providers, hosting providers, and SaaS tools.
14.2 Cognexa is not responsible for the availability, performance, security, pricing, or terms of any third-party service, and the Client agrees that any third-party terms of service apply directly between the Client and the relevant third party.
14.3 Changes to third-party pricing or terms may be passed through to the Client.
15. SECURITY AND ACCEPTABLE USE
15.1 The Client shall not, and shall not permit any third party to:
(a) Use the Services in violation of any law or regulation;
(b) Reverse-engineer, decompile, or disassemble Cognexa IP;
(c) Use the Services to transmit malware, spam, or unlawful content;
(d) Probe, scan, or test the vulnerability of any system without prior written consent;
(e) Resell, sublicence, or commercially exploit the Services without written consent.
15.2 Cognexa may immediately suspend Services for breach of this clause without liability.
16. NON-SOLICITATION
16.1 The Client shall not, during the term of this Agreement and for a period of twelve (12) months after termination, directly or indirectly solicit, employ, engage, or contract with any employee, contractor, or subcontractor of Cognexa with whom the Client had material contact through the Services, without Cognexa's prior written consent.
16.2 In the event of breach, the Client shall pay Cognexa a placement fee equal to fifty percent (50%) of the relevant individual's gross annual remuneration as liquidated damages.
17. FORCE MAJEURE
17.1 Neither party shall be liable for failure or delay in performance caused by events beyond its reasonable control, including but not limited to acts of God, war, terrorism, civil unrest, pandemic, load-shedding, internet outages, cloud-provider outages, cyberattacks, government action, strikes, or natural disasters.
17.2 The affected party shall notify the other in writing as soon as reasonably practicable. If the force majeure event continues for more than sixty (60) days, either party may terminate this Agreement on written notice without liability, save for the obligations accrued up to the date of termination.
18. DISPUTE RESOLUTION
18.1 The parties shall first attempt in good faith to resolve any dispute arising from or in connection with this Agreement through senior-level negotiation within thirty (30) days.
18.2 Failing resolution, the dispute shall be referred to arbitration administered by the Arbitration Foundation of Southern Africa (AFSA) in Johannesburg, in accordance with AFSA's commercial rules. The arbitration shall be conducted in English by a single arbitrator agreed between the parties or, failing agreement, appointed by AFSA.
18.3 The arbitration award shall be final and binding. Either party may approach a court of competent jurisdiction for urgent interim relief or to enforce an arbitration award.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement is governed by and construed in accordance with the laws of the Republic of South Africa.
19.2 Subject to clause 18, the parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, Johannesburg.
20. GENERAL
20.1 Entire Agreement: This Agreement, together with the applicable Statement of Work, constitutes the entire agreement between the parties and supersedes all prior representations, negotiations, and agreements.
20.2 Variation: No variation shall be effective unless in writing and signed by an authorised representative of each party.
20.3 No Waiver: A failure or delay in exercising any right shall not constitute a waiver of that right.
20.4 Severability: If any provision is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
20.5 Assignment: The Client may not assign or cede its rights or obligations without Cognexa's prior written consent. Cognexa may assign or subcontract its obligations to any affiliate or competent third party.
20.6 Independent Contractor: Cognexa provides the Services as an independent contractor. Nothing in this Agreement creates a partnership, joint venture, employment or agency relationship.
20.7 Notices: All notices must be in writing and sent by email to the addresses notified by the parties from time to time. Notices shall be deemed received on the next business day after transmission, provided no delivery failure is received.
20.8 Survival: Clauses relating to fees, intellectual property, confidentiality, limitation of liability, indemnity, non-solicitation, dispute resolution, and any other clause which by its nature should survive, shall survive termination.
20.9 Counterparts and Electronic Signature: This Agreement may be executed electronically and in counterparts, each of which shall be deemed an original.
21. ACCEPTANCE
By signing a Statement of Work, paying an invoice, or commencing use of the Services, the Client confirms that it has read, understood, and accepted these Terms and Conditions in full.
Cognexa (PTY) Ltd Johannesburg, South Africa Email: info@cognexa.co.za
Website: www.cognexa.co.za
© Cognexa (PTY) Ltd. All rights reserved.