Terms & Conditions
The customer agrees that any sale or contract is subject to the terms & conditions of Industrial Revolution IT Services (Pty) Ltd (“Industrial Revolution”), which the customer acknowledges to have read, understood and adhere to.
1.1 The following words and phrases shall have the meanings ascribed to them, unless the context of the clause in question dictates a different meaning :
“the Change Request” the Industrial Revolution official document in which any changes to the Contract proposed by the Customer and accepted by Industrial Revolution are to be specified
“the Contract” one or more of the following documents: the Estimate, Quote, Order Form (and Change Request, if applicable), the Proposal, the Specifications, the Time and Materials Agreement, the Support Service Level Agreement, these conditions and all the Annexures attached hereto, as well as any other written or verbal agreements that Industrial Revolution and the Customer may enter into from time to time
“the Customer” The party for whom Industrial Revolution will provide the services as specified in the Contract.
“the Estimate” any estimate prepared by Industrial Revolution for the Work
“the Installation Date” the date upon which Industrial Revolution indicates to the Customer that the Work is ready for installation
“the Installation Certificate” The Industrial Revolution certificate completed and signed by the Customer upon installation of the System
“the Order Form” the official Industrial Revolution Order Form to be completed by the Customer or by Industrial Revolution as instructed by the Customer and signed by the Customer
“Pre-existing Materials” Any computer program, code or materials developed by Industrial Revolution, independently of the Work whether in existence prior to the Contract or developed during the course thereof
“the Proposal” the document prepared by Industrial Revolution which will detail the Work
“the Quote” any quote prepared by Industrial Revolution for the Work
“the Site” the premises of the Customer where the System is to be installed as specified on the Order Form
“Specifications” the detail of the Work as prepared by Industrial Revolution, the Customer or both parties jointly
“the Standard Trading Conditions” the terms and conditions contained herein as amended from time to time
“the Support Level Agreement” the agreement entered into between Industrial Revolution and the Customer for Support Services to be carried out by Industrial Revolution upon such terms and conditions as contained therein
“the System” a program development, modification or enhancement to be carried out by Industrial Revolution for the Customer as specified in more detail in the Contract
“the Time and Materials Agreement” an agreement entered into between Industrial Revolution and the Customer for the Work to be carried out and materials to be supplied on such terms and conditions contained therein
“the Visual Standards” The layouts for computer screen and written reports as specified by Industrial Revolution from time to time and based on Microsoft standards
“the Work” The work to be carried out by Industrial Revolution at the request of the Customer as specified in the Contract
1.2 The headings in this document shall not be taken into account in the interpretation thereof and unless the context otherwise requires, terms used herein shall bear the meanings normally ascribed to it in the computer industry.
1.3 The singular includes the plural, male female and vice versa.
2. APPLICATION OF THE STANDARD TRADING CONDITIONS
2.1 The Standard Trading Conditions will apply to all Work carried out by Industrial Revolution at the request of the Customer from time to time.
3. DEVELOPMENT AND MODIFICATION OF THE SYSTEM
3.1 Industrial Revolution will provide installation software and install the System onto 1 (one) computer only at the Site, unless Industrial Revolution has agreed to install the System on more than 1 (one) computer and such number is quoted for and contained in the Work.
3.2 Industrial Revolution will, subject to the provisions of clause 3.6.1 below, attend to any remedial work required subject to the condition that should the System operate without defect for a continuous period of 60 (sixty) days from the Installation Date, then the System shall be deemed to have been accepted and fully commissioned, where after Industrial Revolution's liability associated with the System will cease.
3.3 Customer undertakings prior to installation:
3.3.1 to ensure that an Order Form has been completed and a Industrial Revolution's Quotation for the work has been signed by an employee with the appropriate authorisation;
3.3.2 to provide Industrial Revolution with all information, material, documentation and assistance that may be required for the System and the Work;
3.3.3 to allow Industrial Revolution free access to and make available to Industrial Revolution all staff required for the System and the Work.
3.4.1 Ownership in the System shall remain with Industrial Revolution until the purchase consideration specified in the Order Form and the applicable taxes have been paid in full.
3.4.2 Industrial Revolution will retain all rights to any Pre-existing Materials.
3.4.3 All copyright in the Work will be and remain the property of Industrial Revolution unless specifically ceded to the Customer in the Contract.
3.5 Installation and risk:
3.5.1 Risk of loss or damage to the System shall pass to the Customer on the Installation Date.
3.5.2 The Customer agrees and undertakes that it will provide electric power within the limits prescribed by Industrial Revolution or will acquire stabilising equipment to ensure the proper operation of the System where Industrial Revolution so requires.
3.5.3 The Customer will appoint from within his personnel a nominated customer representative. All communications between Industrial Revolutionand the Customer will be routed through him, thus streamlining this critical aspect of the Customer/Industrial Revolution relationship and minimising the possibility for misunderstandings and breakdowns in the communication.
3.5.4 On or before delivery of the System the Customer shall make available a suitable place of installation and testing at the Site with all requisite facilities in accordance with Industrial Revolution's requirements.
3.5.5 Upon Industrial Revolution advising the Customer that the installation is complete, the Customer shall immediately submit to Industrial Revolution the Installation Certificate duly completed.
3.6 Project sign-off:
3.6.1 after the Installation Date, the Customer will have up to1 (one) month to thoroughly test the System, during which time, Industrial Revolution should be notified of any bugs. Industrial Revolution will, at no cost to the Customer, repair same within 60 (sixty) days of the Installation Date;
3.6.2 If installation has been delayed by the Customer’s failure to comply with any of its obligations hereunder, the actual date of installation shall be deemed to be the Installation Date;
3.6.3 Upon actual installation (whether or not on Installation Date), the Customer must submit to Industrial Revolution a duly completed and signed Installation Certificate.
4. PRICING AND PAYMENT
4.1 The Customer shall pay to Industrial Revolution, at such place as Industrial Revolution may advise the Customer from time to time, the consideration due to Industrial Revolution upon the due date as specified in the Contract:
4.2 Such payment shall be made in full, without any deduction or set-off, and free of bank exchange or other charges or commission.
4.3 If any amount is not paid on due date Industrial Revolution may, without prejudice to any rights it may have, immediately suspend the carrying out of its obligations in terms of the Contract.
4.4 The Customer shall, in addition to the charges provided for in terms of the Contract, pay all taxes, rates, or Governmental levies imposed in respect of the Work.
4.5 It is recorded that Industrial Revolution reserves the right to vary the consideration if on the Installation Date the exchange rate for the base currency is different from the relevant exchange rate for the base currency ruling at the date of the Contract.
4.6 If the Customer defaults in payment of any sum due in terms of the Contract or otherwise fails to fulfill its obligations in terms of the Contract, then Industrial Revolution shall have the right to terminate the Contract immediately. The Customer’s obligation to pay all charges, which shall have accrued, shall survive any termination of the Contract.
4.7 Travel time to and from the Site will be billed at a fixed amount per kilometer and are included in Industrial Revolution standard timesheets.
4.8 All invoices for hourly charges will have the Industrial Revolution standard time-sheets attached unless a different system of time-keeping is agreed upon in writing prior to the Work commencing. Customers may request a logon and password to the Industrial Revolution web-site in order to view these on-line. Industrial Revolution's Standard timesheets are finalised by the 4th (fourth) working day of the month following the month during which the Work has been performed and may be amended up until this time.
4.9 The Customer shall be liable for interest at the maximum legal permissible rate, calculated daily in arrears on all overdue amounts. Such payments shall be made in full in South African currency without any deduction and free of bank exchange and other charges or commission.
4.10 A certificate by any manager or assistant manager of a South African registered commercial bank, nominated in terms of 4.9 by Industrial Revolution, shall be conclusive proof in any court of law of the Prime Overdraft Rate.
4.11 All accounts are C.O.D. unless otherwise agreed to by Industrial Revolution in writing.
4.12 The granting of any credit facilities shall be entirely at Industrial Revolution's discretion. Credit will only be granted to customers on receipt of an original and fully completed Industrial Revolution credit application form and once the customer has been informed in writing of the approved payment terms and credit limit.
4.13 All services calls will be charged at 1 (one) hourly rate applicable from time to time. No pro-rata time will apply.
4.14 If booked service calls are not cancelled 48 (forty eight) hours before date of the service call a levy equal to 1 (one) hour service rate will be charged.
4.15 Accounts in arrears will be subject to suspension of services.
5.1 Industrial Revolution warrants that qualified personnel will be used to carry out the Work and that due and reasonable care will be exercised.
5.2 Industrial Revolution warrants that, when delivered, the System will be in good physical order, and will conform to the Specifications, subject to the same being properly used, maintained and serviced.
5.3 The warranties in Clause 5 and other express provisions of this Contract set forth all Industrial Revolution's obligations and liabilities to the Customer concerning the Contract. Accordingly, all other warranties, conditions or other terms in this regard, whether express or which may otherwise be implied into the Contract or any collateral contract including, without limitation, any implied terms of merchantable quality or fitness for a particular purpose, are hereby excluded.
5.4 Industrial Revolution will, subject to the provisions of clause 3.6.1 above, attend to any remedial work required subject to the condition that should any particular module of the program function without defect for a continuous period of 60 (sixty) days from the Installation Date, then such module shall be deemed to have been accepted and fully commissioned, where after Industrial Revolution's liability associated with such module will cease.
5.5 The Customer warrants that the information provided to Industrial Revolution and the information contained in the Contract is correct and is all the information that Industrial Revolution will require to carry out the Work.
5.6 The Customer guarantees that the person supplying the information and completing the Contract is duly authorised to do so.
6. CHANGE REQUEST
6.1 All extra changes that have not been specified in writing in the Quote or Change Request will be charged for on an hourly basis or separately quoted for.
6.2 All changes to the Specifications must be detailed in the Change Request.
6.3 The Customer may submit a Change Request which may require Industrial Revolution to prepare an additional Estimate or Quote which the Customer can reject or accept. Whether the Customer rejects or accepts such amended or additional Estimate or Quote, the Customer will be liable for Industrial Revolution's charges in preparing such an additional or amended Estimate or Quote.
7. VISUAL STANDARDS
7.1 The Visual Standards will apply unless the Customer has indicated the contrary to Industrial Revolution in writing, prior to commencing the Work.
7.2 If the Customer specifies a different layout as indicated in 7.1,Industrial Revolution will use same.
7.3 However, if the Customer specifies his own standards after signing the Order, then the Customer will be liable for Industrial Revolution's charges involved in implementing the Change Request.
8. DATA PROTECTION
8.1 Industrial Revolution's representatives will take all necessary precautions to protect information on the Customer’s system.
8.2 However the Customer is responsible for the adequate and reasonable protection of data, including limiting the access by Industrial Revolution's representative where required and making regular backups at least each twenty-four (24) hour period.
8.3 Industrial Revolution do not accept any liability for loss of information on the Customer’s system for any reason whatsoever.
8.4 The Customer indemnifies and holds Industrial Revolution harmless from any claim, loss or liability arising out of the Customer’s use of the System, except to the extent that it is caused by Industrial Revolution's gross negligence or willful misconduct (This clause must be read with clause 10 below).
9.1 The Customer agrees not to, without the prior knowledge and written approval of Industrial Revolution; make any offer of employment to any member of Industrial Revolution's staff at any time.
9.2 If the Customer hires, whether as an employee, independent contractor, or in any other capacity, any person who was within a 1 (one) year prior to date of such hiring, an employee of Industrial Revolution or any of its affiliates, the Customer agrees to pay Industrial Revolution an amount equal to 12 (twelve) times that employee’s monthly gross compensation at the time he left Industrial Revolution's employment.
10. LIMITATION OF LIABILITY
10.1 Industrial Revolution's liability in terms of the Contract is limited to restoring the System to good operating condition. If Industrial Revolution is unable to restore the System or a unit of the System to good operating condition after a reasonable number of attempts, the Customer may immediately terminate the Contract.
10.2 In no event shall Industrial Revolution have any liability for any loss of revenue or profit or for any indirect, incidental, special or consequential loss or damage howsoever arising.
10.3 Industrial Revolution shall not be liable for any damages unless the Customer has established reasonable backups, accuracy checks and security precautions to guard against possible malfunctions, loss of data or unauthorised access and the Customer has taken all reasonable steps to minimise its loss and has carried out tests to determine the suitability of the System for the purposes which it is required and furthermore subject to Industrial Revolution's gross negligence or willful misconduct being the cause. The Customer acknowledges that it will, upon delivery, have exclusive possession and control over the System, the information and databases used in connection therewith.
10.4 Industrial Revolution shall not be responsible or liable to the Customer for any delay or non-performance of its obligations caused by or resulting from accident, fire, flood or lightning, war, state of war, sabotage or any officially declared state of emergency, riots, embargoes, sanctions, boycotts, workman stayaways, strikes, non-availability of materials, supplies or transport facilities, restrictions or sanctions imposed by any authority, or by any force majeure of any description whether of the nature herein indicated or not.
10.5 In the event that the Customer can prove that the cause of the damage was due to the gross negligence or willful misconduct of Industrial Revolution, then the liability of Industrial Revolution will be limited to the consideration due by the Customer to Industrial Revolution for the Work.
10.6 The limitations and exclusions in this Clause 10 shall apply to all claims of every nature, kind and description whether arising from breach of contract, breach of warranty, negligence or otherwise. Damages as limited by this Clause 10 are Customer’s sole and exclusive remedy.
10.7 The Customer must notify Industrial Revolution in writing within 14 (fourteen) days from the date that the cause referred to herein arises.
11.1 Industrial Revolution may cancel the Contract without notice to the Customer if the Customer :
11.1.1 fails to pay any amount due to Industrial Revolution on due date for payment thereof; or
11.1.2 commits any other breach of any of these Terms and Conditions and fails to remedy that breach within 7 (seven) days of receipt of written notice by BUI to remedy that breach; or
11.1.3 Is placed under a provisional or final winding-up or sequestration or judicial management order or in any way attempts to compromise with its creditors.
11.2 The Customer may cancel the Contract if Industrial Revolution commits any material breach of these Terms and Conditions and fails to remedy that breach within 30 (thirty) days of receipt of written notice from the Customer to remedy that breach.
11.3 Upon termination in terms of 11 above for any reason whatsoever:
11.3.1 All amounts owed by the Customer to Industrial Revolution shall immediately become due and payable; and
11.3.2 Industrial Revolution may retake possession of any System whether or not ownership has passed to the Customer. The Customer will be liable for any costs so incurred and furthermore indemnifies Industrial Revolution against any damage or loss caused or incurred in the exercise of this right.
11.4 Industrial Revolution's rights in terms of this clause shall not be exhaustive and shall be in addition to its common law rights.
12.1 No relaxation or indulgence which Industrial Revolution may extend to the Customer shall in any way prejudice Industrial Revolution's rights in terms of the Contract and, in particular, no acceptance by Industrial Revolution of any payment after due date or cancellation of the Contract shall be construed as a waiver or release by Industrial Revolution of its rights and the Customer shall not thereby be entitled to claim the benefit of estoppel.
13. JURISDICTION AND LAW
13.1 The Customer consents to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings which may be brought against the Customer, provided that Industrial Revolution shall be entitled to bring proceedings in the Supreme Court where such proceedings would but for the a foregoing consent, fall outside the jurisdiction of the Magistrate’s Court.
13.2 The Agreement shall be governed, construed, interpreted and take effect in accordance with the laws of the Republic of South Africa. If any provision(s) hereof shall be held to be invalid, illegal or unenforceable the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
14.1 For all purposes under the Contract or any amendment thereof, or with regard to any matter arising there out or in connection therewith, Industrial Revolution chooses as its domicilium citandi et executandi at
Block 3 Gallagher Business Exchange
688 Gallagher Avenue
and the Customer chooses the address specified in the Contract, provided that either party shall be entitled to nominate a substitute address in the Republic of South Africa as that party’s domicilium citandi et executandi, by written notice to that effect given to the other party.
15. NOTICES & CANCELLATIONS
15.1 Any notice required or permitted to be given by either party to another in terms of the Agreement shall be in writing addressed in the name of the latter (and in the case of Industrial Revolution marked for the attention of its Managing Director) and shall be delivered to the addressee at the addressee’s domicilium citandi et executandi established for the time being in terms hereof. 15.2
Any notice send by pre-paid registered post will be deemed to have been received by the addressee seven days from the date of the notice.
15.2 One calendar month’s written notice is required for any cancellation.
15.3 A 30% handling fee will be charged on cancellation of signed orders.
16.1 The Customer shall not be entitled to cede its rights or delegate its obligations in respect of any Contract to which these Terms and Conditions apply without the prior written consent of Industrial Revolution, such consent not to be unreasonably withheld.
16.2 Industrial Revolution shall be entitled to cede its rights in respect of any Contract to which these Terms and Conditions apply to any person, company or business.
17. LEGAL COSTS
17.1 The Customer will be responsible for all costs incurred by Industrial Revolution in enforcing this Contract, including attorney’s fees, (on an attorney and own client scale), tracing agents fees and collection charges
18. SOLE AGREEMENT
The Contract constitutes the exclusive record of the agreement between Industrial Revolution and the Customer relating to the Work and accordingly;
18.1 no warranty, representation, undertaking, guarantee or other term or condition of whatever nature whether express or implied not contained and/or recorded herein shall be binding; and
18.2 no variation, modification or waiver of any provision thereof, or consent to any departure there from by any party, shall be of any force or effect unless the same is recorded in writing and signed by an authorised Director of Industrial Revolution and an authorised officer of the Customer.
18.3 In the event of any conflict between the terms hereof and the terms of any order or offer made by the customer (in writing or otherwise) the terms hereof, unless in writing agreed otherwise, shall at all times prevail.
19. HARDWARE & SOFTWARE SALES
19.1 Ownership of all goods and services supplied remains vested in Industrial Revolution until payment in full.
19.2 Software and retail packaged peripherals will NOT be credited if opened.
Industrial Revolution will not be responsible for any third party software.
19.3 Credit shall only be considered if the goods are returned within five (5) days of the date of this invoice, are not defective in any way, in their original saleable condition and packaging supplied by Industrial Revolution and accompanied by this invoice, and then it will be granted at Industrial Revolution's current price of the goods or the original purchase price, whichever the lesser.
19.4 A handling fee will be charged on all goods returned to Industrial Revolution 48 hours after delivery to the purchaser.
20.1 Industrial Revolution will not be responsible for the deletion of domain names if the relevant customer’s account is not paid or renewal forms are not completed and received by Industrial Revolution.
21. DIAL ACCESS, E-MAIL & DEDICATED ACCESS VIA DIGITAL LEASED LINES
21.1 All hosting, leased lines and domain registrations are payable a month in advance. No credit terms will be granted for these services.
Industrial Revolution will not be responsible for third party ISP’s (Internet Service Providers), Telkom calls or Telkom networks.
ADSL is not a guaranteed service. This includes download and upload speeds, availability in stipulated areas, Telkom technical faults and duration of Telkom repairs.
21.4 Overdue accounts will be suspended and users will need to sign a debit order and pay R75-00 reconnection fee to activate the account.
21.5 Industrial Revolution has the right to block any emails they suspect contains spam or unlawfull material or content
22.1 Repairs must be returned with original purchase invoice and a fault report.
22.2 Faulty goods must be returned to the address in point 14.1
22.3 Industrial Revolution are not responsible for any repaired goods not being collected after 6 months
23.1 ACCEPTANCE OF THE WEBSITE
Unless the Subscriber notifies the Provider in writing to the contrary within 7 (seven) days of signature hereof, the website shall be deemed to have been accepted and of a satisfactory standard. The Subscriber shall bear the onus proving that the website is not of a satisfactory standard.
23.2 HOSTING OF THE WEBSITE
Cancellation shall be in writing not later than 30 (thirty) days prior to expiry of the initial period (termination notice). Should the Provider not receive a termination notice from the Subscriber within the stipulated period, the Subscription shall automatically renew for successive periods of 12 (twelve) months on the same terms and conditions as contained in this agreement, however, a revised reasonable monthly service fee applicable to the renewed agreement shall be determined by the Provider, which shall not exceed the existing “Hosting Fee” plus 25%.
Ownership of the Website shall not pass to the Subscriber until all amounts detailed overleaf have been paid in full.
Use by the Subscriber shall be at his sole risk, the Subscriber waives any rights that he may have against the Provider with regard to any claim for damages or otherwise suffered by the Subscriber and whether caused by negligence or otherwise.
23.5 CONFIDENTIAL INFORMATION
The Provider shall be entitled to collect and retain any information relating to the use of the site by the Subscriber and unless the Subscriber notifies the Provider in writing to the contrary, the Provider shall be entitled to disclose on a confidential basis to any business acquaintance any information relating to the Subscriber’s business dealings with the Provider and the site.
The Provider retains all intellectual property rights and ownership pertaining to its name together with other names, logos and icons identifying Industrial Revolution IT Services (Pty) Ltd's services and records. All brands or company names referred to on the site shall remain the property of their respective owners.
The Subscriber shall not allow any person, while visiting the Site a) to post, transmit or otherwise distribute any information which would constitute illegal conduct or a criminal act or incur civil liability on the part of either the Subscriber or the Provider b) to post, transmit or otherwise distribute software containing a virus, cancelbot, trojan horse, worm or other harmful or disruptive components c) to upload post, publish, transmit, reproduce or distribute any information, software, or any other intellectual property right, without obtaining the prior written consent from the intellectual property holder; c) use the Site in an unlawful manner.
The Provider retains the right to monitor the Site and to disclose any information required in order to comply with any law/ regulation or other State request, to operate the Site efficiently or to protect itself. The Provider undertakes not to intentionally disclose any confidential e-mail messages unless obliged to do so. The Provider retains the right to refuse to post any information (in whole or in part) that, in the opinion of the Provider, is undesirable.
Should the Subscriber be dissatisfied with the site or with any of the terms and conditions, rules, policies, guidelines or practices of the Provider operating the Site, the Subscriber’s sole and exclusive remedy shall be to discontinue using the Site, subject to compliance with paragraph 2) above.
23.10 WHOLE AGREEMENT
This document constitutes the whole agreement between the parties and no warranties or representations, whether express or implied, or at variance with the terms and conditions of this agreement shall be binding on the parties unless reduced to a written statement signed by or on behalf of the parties. No consensual cancellation shall be valid or binding unless reduced to writing and signed by both parties hereto.
The Subscriber hereby indemnifies the Provider in respect of any claims, liabilities, costs or expenses including attorneys fees incurred by the Provider as a result of a breach of this agreement by the Subscriber or any of it’s users or the use of / placement/transmission of any website, message, information, software or other materials (located on the Site or the Internet by the Subscriber or any of it’s users.
23.12 LEGAL ENTITIES
Should the Subscriber be a legal entity, the person signing on behalf of the legal entity warrants the he/she is duly authorized to represent and bind the Subscriber to this agreement.
23.13 SECURITY FOR OBLIGATIONS
The Provider shall be entitled to satisfactory security from the Subscriber for the due performance by the Subscriber of all it’s obligations in terms of this agreement. The Subscriber shall deliver to the Provider, when called upon to do so, guarantees or letters of credit (security documentation) issued by a recognised financial institution acceptable to the Provider. If the Subscriber fails to provide the security documentation with 7 (seven) days after written demand by the Provider, the Provider shall be entitled to withdraw from this agreement or compel delivery of same.
23.14 VIS MAJOR
The Provider shall not be liable for any delay in performing any of its obligations in terms of this agreement, if such delay is caused by circumstances beyond its control and shall be entitled to a reasonable extension of time for the performance of such obligations.
Neither party shall be entitled to cede or assign any rights and/or obligations in terms of this agreement to any third party unless agreed in writing by the other, which consent may not be unreasonably withheld.
All notices required to be given in terms of this agreement shall be in writing and shall be posted or delivered to the address of the Provider as set of hereunder and to the address of the Subscriber as stipulated on the Application Form. All legal process arising from this agreement may be served on the Provider at the said addresses: Block 3, Gallagher Business Exchange, 688 Gallagher Avenue Midrand. All notices may be delivered personally or by pre-paid post.
23.17 MAGISTRATE’S COURT JURISDICTION
The Subscriber consents to the jurisdiction of the Magistrates Court insofar as the amount of the claim exceeds the jurisdiction of the Court. This consent does not exclude the jurisdiction of any other Court.
23.18 LEGAL ACTION
The Provider may recover against the Subscriber costs as between Attorney and own client, Collection commission and Tracing Agent fees.
23.19 GOVERNMENT LAW
The law of the Republic of South Africa shall apply between the Subscriber and the Provider.
If either party breaches any part of this agreement and remains in breach for 14 (fourteen) days after written notice to that party or that party repudiates this agreement , the other party shall be entitled to sue for specific performance or to cancel this agreement. Written notice of such cancellation shall be given to the defaulting party and the cancellation shall take effect on the giving of that notice.