Solution Provider Agreement

INDEX

1.Definitions
2.Introduction
3.Agreement
4.Duration
5.Solution provider’s Rights and Responsibilities
6.Matchi’s Rights and Responsibilities
7.Payment
8.Confidentiality
9.Intellectual Property
10.Warranties
11.Liability and Indemnity
12.Termination
13.Governing Law
14.Domicilium

1.DEFINITIONS AND INTERPRETATION

1.1 The meanings of the following words and phrases are set out below. Where these words are used in capitalised form in the Agreement, they will have the meanings ascribed herein below.

Agreement	means the agreement between the Parties, consisting of these Terms and Conditions and any other annexure, appendix or policy stipulated as being part hereof
Challenge/s	means any challenge managed by KPMG Matchi, from time to time, in accordance with the rules thereof as communicated from time to time , as amended from time to time and as further set out in clause 7 herein below
Confidential Information	means all documents, software, data, records, forms and other information that either Party provides to the other Party in order give effect to this Agreement that: are marked as confidential, or the disclosing Party has advised as being confidential, or due to its character and nature, a reasonable person would treat as confidential, or the Solution and any and all Solution Details
Contract	means an agreement entered into between the Solution provider and a User
Solution provider	means the authorised Solution provider , who has subscribed to the Website, and who has created and developed or has an interest in, a concept or Solution, which it wishes to or has submitted to the Website, for publication on the Website, subject to the terms of this Agreement and who is the counterparty to this Agreement as stipulated during registation
Solution	means a developed inventive or innovative concept or product developed-, constructed or otherwise produced by the Solution provider, which may range in maturity up to a fully developed concept or Solution, which is already a mature or viable prototype, pilot project, proof of concept or product, and includes the Solution Details
Solution Details	means the complete description of the Solution and how it works including all data, details, information, diagrams, videos and supporting documents

Intellectual Property	means and includes patents, inventions, registered designs, copyright, trade marks, know how, trade dress, confidential information and other related intellectual property
KPMG/KPMG Member Firm(s)	means any one- or all member firms of the KPMG network of independent firms affiliated with KPMG International Cooperative (“KPMG International”), KPMG International Limited, a private English company limited by guarantee
KPMG Client(s)	means a client of KPMG which is engaged by KPMG with a view of obtaining a right or license to use or obtain a Solution. Such KPMG Client may by agreement with KPMG Matchi, become a User
KPMG South Africa	means KPMG Services (Pty) Ltd., 2021 KPMG Services Proprietary Limited, a South African company with registration number 1999/012876/07 and a member firm of the KPMG global organisation of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee.
Law	means the law of the Republic of South Africa, which is and will be the law that will govern all aspects of the Agreement and all aspects of the relationship between the Parties
KPMG Matchi	means KPMG Matchi, a division of KPMG South Africa
KPMG Matchi News Content	means all articles, reports and trend briefings, both public and private and as provided by KPMG Matchi on the Website

Member	means and includes users and Solution providers of the Website
Membership	refers to the status of a Member that is in compliance with the terms applicable to Members

Parties	means the parties to this Agreement and “Party” shall refer to either one as the case may be
Personal Information	means personal information as defined in the Protection of Personal Information Act, No. 4 of 2013 or any other law or regulation applicable to the information of a data subject and with which KPMG Matchi is obligated to comply
Problem Statement	means a statement setting out the problem, challenge or difficulty the Solution seeks to address
Services	means the services set out in this Agreement that KPMG Matchi agrees to provide in terms of this Agreement
User	means a person or entity interested in obtaining a right or license to use or obtain a Solution and who will be a Member. Users may include KPMG Member Firms, KPMG Clients or third parties that engages with KPMG Matchi directly
Website	means the KPMG Matchi website which attracts and receives Solutions from various Solution providers and generally deals with facilitating, introducing and matching Solutions and Solution providers with Users

In this Agreement, unless the context otherwise requires:
- if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
- in this Agreement, a Party includes a reference to that Party’s successors in title and assigns allowed in law;
-any reference in this Agreement to:
-"days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
-"law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;
-"person" means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;
-the words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "includes" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it; The eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples, and where general words follow particular and specific words, the general words must not be confined to the particular or specific words used in the context.
-the words "shall" and "will" and "must" used in the context of any obligation or restriction imposed on a party have the same meaning;
-words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
-words and expressions defined in this Agreement shall also apply in the interpretation of the same words and phrases in annexures or schedules to this Agreement;
-a reference to any statutory enactment shall be construed as a reference to that enactment as at the Commencement Date and as amended or substituted from time to time;
-unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
-if the due date for performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day;
-where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
-the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply;
-the singular shall import and include the plural and vice versa;
-words indicating a gender shall import and include other genders
-in this Agreement, the words "clause" or "clauses" and "annexure" or "annexures" and "schedule" or "schedules" refer to clauses and annexures or schedules to this Agreement.

2. INTRODUCTION

1. This Agreement and any terms or conditions, policies and/or documents referred to in or incorporated into the Agreement comprise the entire Agreement between the Parties. This Agreement applies to the relationship between the Parties before and after acceptance of a Solution onto the Website.
2. The primary purpose of the Website and of KPMG Matchi in relation to the Website is to facilitate the submission of Solutions by the Solution provider, to publish Solutions on the Website, and to enable Users to view, assess and by agreement with Solution providers, use or obtain Solutions. This Agreement between KPMG Matchi and the Solution provider specifically excludes the facilitation of transactions between the Solution provider and Users. In the event that KPMG South Africa is requested by a Solution provider or a User to facilitate a transaction as envisaged herein, separate terms shall be agreed to, to govern such facilitation.

3. AGREEMENT

1. This Agreement sets out the whole agreement between the Parties related to the subject matter hereof. No change to the Agreement will be of any effect or consequence unless in writing and signed by an authorised representative of each of the Parties.

4. DURATION

The duration of the Solution provider’s Membership is indefinite, subject to the terms of this Agreement, as may be amended from time to time, as well as either Party’s right to terminate this Agreement as provided herein further below.

5. SOLUTION PROVIDER’S RIGHTS AND RESPONSIBILITIES

1. The Solution provider shall be bound by this Agreement in all transactions relating to the submission of concepts and Solutions and dealings therein to the Website.
2. The Solution provider shall not be required to make payment in order to be registered as a Member on the Website under this Agreement.
3. Acceptance by KPMG Matchi of any Solution provider as a Member, shall be subject to KPMG South Africa’s risk management policies and procedures.
4. The Solution provider is entitled to submit an unlimited number of Solutions which shall be assessed and either declined or approved for publication on the Website by KPMG Matchi in accordance with the terms of this Agreement and within one week of its submission.
5. The Solution provider shall submit its full details onto the Website.
6. The Solution provider shall make all its submissions to the Website including full details, all data, drawings, images and the like of the concept or Solution. In addition to the terms of this Agreement, the submission of the Solution shall be dealt with in accordance with KPMG Matchi’s Privacy Policy, as amended from time to time.
7. On submitting the Solution, the Solution provider shall specify, as far as reasonably possible, the level of maturity or development of the Solution.
8. As a Solution provider, the Solution provider is not entitled to view the Solutions of other Solution providers or to obtain any right in any such Solutions of other Solution providers. The Solution provider may however by special arrangement become a User subject to a separate agreement between the Solution provider and KPMG Matchi.
9. Upon- and by submitting the Solution to the Website, the Solution provider hereby agrees in good faith, but is not obliged, to enter into discussions to assign, sell or licence, the Solution on reasonable market related terms, to an interested User, in the event that a User wishes to acquire the Solution or to obtain a license for the use of the Solution.
10. The Solution provider may edit or make changes to the Solution as submitted to the Website as further development is necessary or improvements are made to the Solution. The Solution provider is entitled to an unlimited number of editing sessions during which the Solution can be amended and re-entered. From the time of commencement of the editing, a Solution provider may receive an occasional email reminder that there is still editing work in progress. There is no maximum time for completion of the entry of a Solution. The work may be saved by the Solution provider at the end of every editing session. When the Solution entry is completed it will be submitted to KPMG Matchi for review. Once submitted, the Solution cannot be edited further.
11. In the event that a User is interested in acquiring ownership or a license for use of the Solution, they may contact the Solution provider initially via KPMG Matchi, for preliminary discussions. The User may subsequently, at its option, choose to communicate directly with the Solution provider in order to negotiate terms for such acquisition or alternatively, consult with KPMG South Africa in order to facilitate such a transaction.
12. The Solution provider shall have access to view KPMG Matchi News Content.
13. The Solution provider shall have the opportunity to enter Challenges as may be communicated by KPMG Matchi from time to time and as further set out herein below.
14. In dealing with KPMG Matchi and other Members, the Solution provider shall exercise good faith and act with integrity. The Solution provider shall be honest in its dealings with other Members and refrain from fraudulent, dishonest and any other objectionable conduct.
15. The Solution provider shall comply with all laws and regulations in force from time to time. The Solution Provider shall not be involved in any criminal or unlawful activity.
16. The Solution provider shall ensure that its workplaces and employment environment comply with international standards regarding issues such as health and safety and employment equity. The Solution provider shall not make use of slavery or child labour.
17. The Solution provider may not engage in any discriminatory conduct, including, without limitation, discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
18. The Solution provider shall avoid all forms of harassment of other Members or any other persons.
19. The Solution provider shall at all times comply with all laws and rules regulating competition and anti-trust matters. The Solution provider shall refrain from all anti-competitive conduct and unlawful competition.
20. The Solution provider shall at all times adhere to the KPMG Anti-Bribery and Corruption Policy.

6. MATCHI’S RIGHTS AND RESPONSIBILITIES

1. KPMG Matchi shall on receipt of the Solution provider’s details on the Website, as required, and after satisfactory completion of the necessary KPMG South Africa risk management procedures, review the Solution provider’s details in accordance with the applicable KPMG South Africa risk management policy and procedure and either accept or decline the Solution provider as a Member. KPMG Matchi reserves the right, at any stage, to terminate the Solution provider’s Membership, in its sole discretion and without cause.
2. On receipt of the submission on the Website, KPMG Matchi shall do a preliminary review of the details and data received and of the Solution, for compliance and merit purposes.
3. If the Solution is preliminarily accepted by KPMG Matchi, it will be placed on the Website and made available for viewing by Users.
4. KPMG Matchi reserves the right to decline any submission, idea, concept or detail submitted by the Solution provider.
5. KPMG Matchi shall not be obliged to place any submission or Solution on the Website and shall not be liable in any manner whatsoever for a failure to do so. KPMG Matchi reserves the right to, at any stage, attend to a full review of the Solution and, in it’s sole discretion, to decline the submission and Solution and remove it from the Website. KPMG Matchi shall not be obliged to provide any reasons for any decision relating to the removal or declination of a submission or Solution.
6. KPMG Matchi makes no warranty or representation, express or implied, regarding Users. The Solution provider shall be responsible for obtaining independent professional advice regarding Users and transactions with them, including negotiations and final Contracts.
7. KPMG Matchi shall not incur any liability of whatever nature arising, in any way from any injury, claim, loss or damage to any person, including the Solution provider, as a result of any submissions to the Website or dealings therein.
8. KPMG Matchi does not act as the agent of the Solution provider or of the Users. Furthermore, nothing herein contained shall constitute either Party to be the partner, representative, agent, joint-venture or employee of the other Party.
9. KPMG Matchi shall process all the Solution provider’s Personal Information submitted on the Website (if any) in accordance with the provisions of the Protection of Personal Information Act, No. 4 of 2013 or other data protection legislation or regulation which may be applicable to the relevant Member.

7. PAYMENT

1. From time to time and at the discretion of KPMG Matchi, KPMG Matchi shall publicise opportunities for Solution providers to work with external corporate entities or to participate in showcase events. These opportunities or showcase events shall be referred to as Challenges and shall be published as such on the Website and in communications to elected Solution providers.
2. If the Solution provider elects to participate in a Challenge, the Solution provider shall be bound to comply with the terms of the Challenge as communicated to the Solution provider.
3. KPMG Matchi is under no obligation to issue Challenges and in particular, may issue a Challenge only to selected solution providers in KPMG Matchi’s discretion.
4. If the Solution provider expresses an interest in participating in a Challenge, all terms and conditions of the Agreement shall apply to any submission or Solution provided.
5. In addition to the rights granted to KPMG Matchi herein further below, the Solution provider authorises KPMG Matchi to share its details with external corporate entities, to use the Solution provider’s name and logo on the Website and to retain all details of the submission on the Website until requested to remove it by the Solution provider.

8. CONFIDENTIALITY

1 KPMG Matchi may receive Confidential Information about the Solution provider’s business in the course of providing the Services. The Solution provider may similarly receive Confidential information regarding KPMG Matchi’s business, or that of Users. The Parties will keep confidential and will not disclose the other Party’s Confidential Information or that of the Users to any third party. This does not apply to Confidential Information that:
1.1 is in the public domain; or
1.2 a Party is required by Law to disclose; or

1.3 a Party is required to disclose to its insurers or legal advisers; or
1.4 is necessary for a Party to disclose in order reasonably to perform the Services which includes disclosure to Users; or

1.5 is information which a Party independently developed; or
1.6 a Party received from a third party without restriction and without a breach of a duty of confidentiality.

2 Matchi may, once a Solution is submitted and published on the Website, share such Solution with Users. Users will be bound by appropriate Confidentiality measures prior to receiving disclosure of any Confidential Information.
3 The Solution provider agrees to keep confidential and not to disclose to any third party any methodology or technology KPMG Matchi uses to perform the Services.
4 The provisions of this clause 8 shall be regarded as a stipulatio alteri in favour of a User as it pertains to the Confidential Information of a User and may be enforced by a User at any time at its election.
5 Any and all information (including Confidential Information and Personal Information) received from the Solution provider, shall be stored and processed by KPMG Matchi in the Republic of South Africa.

9. INTELLECTUAL PROPERTY

1 KPMG Matchi shall at all times retain full ownership and all rights in respect of all Intellectual Property it owns and which relate to the Website and the KPMG Matchi business and system.
2 The Solution provider shall at all times retain full ownership and all rights in relation to its Intellectual Property which it may have in respect of all submissions to the Website including the Solution.
3 Rights granted in terms of this Agreement does not grant either Party or any third party a license to use- or assignment of any Intellectual Property or Solution. Such further use, assignment or transfer of ownership shall be the subject of a Contract between the Solution provider and a User.
4 Subject to the remainder of the provisions of this Agreement, the Solution provider grants to KPMG Matchi the right to use the Solution provider’s Intellectual Property which the Solution provider has submitted on the Website, its name, trademarks, logo, biographical information, pictures, images and likeness in any part of the Website (including public and secure areas) and in correspondence with Users, as well as in marketing and promotional correspondence and materials and for any purpose related to the provision of the Services.

10. WARRANTIES

1. The Solution provider warrants and undertakes that:    1.1 no Solution submitted or to be submitted by the Solution provider infringes the rights of any third parties, including, without limitation, Intellectual Property rights;
   1.2 the Solution provider possesses all rights, consents and permissions to submit Solutions to the Website;
   1.3 the Solution provider owns all rights in Solutions submitted or to be submitted by the Solution provider on the Website;
   1.4 to the extent that any third parties co-own any rights in a Solution submitted by the Solution provider, the Solution provider shall take all steps to ensure that it has the right to submit such Solution on the Website for all purposes related to the Website and the provision of Services by KPMG Matchi;
   1.5 Solutions submitted by the Solution provider shall not contain any obscene, defamatory or unlawful content or material or anything which may reasonably be considered to be offensive, anti-social, inflammatory or objectionable, and is not otherwise illegal or unlawful; and
   1.6 The Solution provider shall not submit any Personal Information to the Website in respect of which it does not have the right to submit. The Solution provider warrants that it shall only submit its own Personal Information or that of its personnel and confirms that it has the right and/or all necessary permissions to submit such Personal Information. The Solution provider further warrants that it has- or has procured the right for KPMG Matchi to process such Personal Information. In the clause, the word “process” shall be interpreted to include any action necessary to be taken by KPMG Matchi in order to provide the Services.

2. The Solution provider indemnifies and holds KPMG Matchi harmless against all liability, claims, costs, expenses and penalties suffered or incurred by KPMG Matchi arising from any breach by the Solution provider of the warranties set out in this clause.
3. KPMG Matchi makes no representations whatsoever and gives no guarantee whatsoever in relation to any submission or Solution submitted or placed on the KPMG Matchi Website. All representations, conditions and warranties whatsoever, whether implied or otherwise, are hereby expressly excluded.
4. KPMG Matchi does not warrant that the Solution provider’s participation on the Website or the submission of any Solution shall attract any Users for Solutions or that the Solution provider will enter into any transactions or Contracts with Users or generate any profit from participation in the Website or the submission of any Solutions. KPMG Matchi expressly disclaims and excludes all implied or other warranties relating to the submission of Solutions and the Solution provider’s participation on the Website. KPMG Matchi shall have no liability whatsoever to the Solution provider in the event that the Solution provider’s submission of a Solution is not successful or does not lead to any transactions or Contracts with Users.
5. The entire risk as to the performance, competence, viability, merchantability or any aspect of Solutions is assumed by the Solution provider.
6. Except as expressly set out in this Agreement, KPMG Matchi makes no other representations, extends no warranties, express or implied, and assumes no liabilities or responsibilities with respect to any aspect or facility provided by or relating to the Website.

11. LIABILITY AND INDEMNITY

Without derogating from the generality of any of the provisions hereof, KPMG Matchi shall not at any time be liable for any claims of whatsoever nature and howsoever arising for direct, indirect or consequential loss or damage suffered by the Solution provider or any other third party in connection with the Services provided by KPMG Matchi, the Solution provider’s participation on the Website or any resultant Contracts, including loss of profit or loss of business and whether the Solution provider has been informed of such possibility or not and the Solution provider hereby indemnifies KPMG Matchi against all such claims, loss or damage.

12. TERMINATION

1. KPMG Matchi may terminate or suspend this Agreement on notice to the Solution provider without cause and at any time in KPMG Matchi’s sole and absolute discretion.
2. The Solution provider may terminate this Agreement on 30 (thirty) days’ written notice to KPMG Matchi.
3. If either Party terminates or suspends the Agreement, both Parties will keep any rights that it may have at time of termination or suspension.
4. If either Party materially breaches any term or condition of the Agreement, the other Party may cancel the Agreement in the manner allowed by the Law.
5. When the Agreement is terminated or cancelled either Party must return any property belonging to the other that is in its respective possession, if the other Party asks for it.
6. The termination of the Agreement will not affect

any provision of the Agreement that needs to have effect after the end of the Agreement, even if this is not expressly stated in the provision.

13. GOVERNING LAW AND DISPUTES

1 This Agreement will be governed and construed in accordance with the Law.

2 Any dispute arising between the Parties from this Agreement, including its existence, enforceability, validity, interpretation or termination, the Parties endeavour to settle such dispute in the following manner:
2.1 The Parties shall, upon a dispute arising, endeavour to settle such dispute amicably by discussion between a nominated person of each Party. The attempt to bring about an amicable settlement is considered to have failed as soon as one of the Parties hereto gives a notice thereof to the other Party in writing, provided that the Parties have attempted to resolve the dispute for a period of at least 30 (thirty) days.
2.2 If an attempt to resolve a dispute amicably by discussion between the Parties has failed, the dispute shall be referred to and finally resolved by arbitration under the rules of the Arbitration Foundation of Southern Africa (“AFSA”), which rules are deemed to be incorporated by reference into this clause.
2.3 The costs of the arbitrator shall be borne by the unsuccessful Party or as the arbitrator otherwise directs.
2.4 Nothing in this clause 13 shall prevent either Party from having recourse to a court of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional relief as it considers necessary to avoid irreparable damage.

14. DOMICILIUM

1. The Solution provider chooses its domicilium address details as those which have been submitted to the Website or as otherwise notified to KPMG Matchi in writing from time to time.
2. The Domicilium address of KPMG Matchi is as follows:

Physical Address:85 Empire Road, Parktown, Johannesburg
Telephone Number: 011 647 7111
Email: [email protected]