Terms and Conditions
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION OR CLAUSE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- INTERPRETATION AND DEFINITIONS
The headings of the clauses are for the purposes of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms nor any clause hereof. Unless a contrary intention clearly appears:
1.1 words importing:
- the masculine gender shall include the feminine gender and neuter genders and vice versa.
- the singular includes the plural and vice versa; and
- natural persons include created entities (corporate and un-incorporated) and the state and vice versa.
1.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
1.3. “Account”means an account enabling a person to access and use the Hosted Services, including administrator, operator and/or user accounts;
1.4. “Add-On’s” means additional project enhancements (including Limit increases and other add-ons) that are made available for purchase as listed on the pal.community website and other marketing materials.
1.5. “Agreement’’ or “Customer Terms of Service’’ means these General Terms and all materials referred or linked to in here, unless otherwise specified or stated. Throughout this Agreement, we link to knowledge base articles to help facilitate your use of our products and services and manage your pal Account; however these knowledge base articles are for your information only, and they are not incorporated into this Agreement;
1.6. “Authorised Payment Method” means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party;
1.7. ‘’Free Services’” means all information the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
1.8. ‘’pal Content’’ means all information, data, text, messages, software, sound, music, video, photographs, images, and tags that we information into the Subscription Service or Consulting Services, including Enrichment Data (as defined in our Product Specifications);
1.9. ‘’Affiliate’’ means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject interest.
1.10. “AFSA”means the Arbitration Foundation of Southern Africa NPC, a non-profit company duly incorporated in South Africa with registration number 1996/007496/08;
1.11. “Agreement”means a contract or service order form between the parties incorporating these Terms and Conditions, and any amendments to that contract or service order form from time to time;
1.12. ‘’Order’’ or ‘’Order Form’’ means the pal-approved form or online subscription process by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services;
1.13. ‘’Personal Data’’ means any information relating to the Protection of Personal Information (POPI) Act pal.community/privacy-policy/
1.14. ‘’Features’’ or ‘’Services Catalogue’’ means pal’s products and services catalogue available on pal.community
1.15. ‘’Sensitive Information’’ means credit or debit card numbers; financial account number or EFT/wire instructions, government issued identification numbers (such as identity numbers or passport numbers), biometric information, personal health information (or other information protected under an application health data protection laws), personal information of children projected under any child data protection laws, and any other information or combinations of information that falls within the definition of special categories under the POPI Act or any other applicable law relating to privacy and data projection;
1.16. ‘’Subscription Fee’’ means the amount paid by the Customer for a Subscription Service.
1.17. “Business Day”means any day other than a Saturday, Sunday or official public holiday in South Africa;
1.18. “Business Hours”means the hours of 08:00 to 17:00 South African Standard Time (SAST) on a Business Day;
1.19. “Charges”means the following amounts:
1.19.1. the amounts specified on the pal.community website;
1.19.2. or such amounts as may be agreed in writing by the parties from time to time; and
1.19.3. amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of the Agreement) by the time spent by the Provider’s personnel performing the Support Services.
1.20. “Customer”means means the person or entity identified as such in Section 1 of the Services Order Form;
1.21. “Customer Confidential Information”means any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
1.21.1. was marked or described as “confidential”; or
1.21.2. should have been reasonably understood by the Provider to be confidential; and
1.21.3 the Customer Data;
1.22. “Customer Data”means all data, works and materials: uploaded to or stored on the Platform by the Customer and its End Users; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Platform, Hosted Services and Mobile Apps by the Customer and its End Users;
1.23. “Customisation”means a customisation of the Platform, Hosted Services and Mobile App, whether made through the development, configuration, or integration of software, or otherwise.
1.24. “Documentation”means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
1.25. “Effective Date”means the date upon which the parties execute and agree a hard-copy Services Order Form; or, following the Customer completing and submitting and the online Services Order Form published by the Provider on the Provider’s website, the date upon which the Provider sends to the Customer an order confirmation with a payment associated with such order confirmation;
1.26. ‘’Subscription Service’’ means all of our applications and tools as defined under pal, Fabrik and immedia as subscribed to under an Order Form or that we otherwise make available to the Customer and are developed, operated, and maintained by us, accessible via http://pal.community or another designated URL, and any ancillary projects and services, including web and platform hosting we provide to the Customer;
1.27. “Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
1.28. “Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Pal apps available from, for example, our marketplaces, directories, and links made available through the Subscription Service and non-Pal services listed on services.pal.com.
1.29. “Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
1.30. “Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Pal accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
1.31. “Billing Period” means the period for which you agree to prepay fees under an Order Form. This maybe be the same length as the Subscription Terms specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
1.32. “End User” means the Customer’s final person, audience, community, consumer of the Platform, Hosted Services and Mobile App.
1.33. “Expenses”means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under any other Agreement;
1.34. “Force Majeure Event”means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
1.35. “Hosted Service/s”means the Pal platform, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with the Agreement;
1.36. “Hosted Services Defect”means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
1.36.1. any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
1.36.2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
1.36.3. a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
1.36.4. an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Documentation;
1.38. “Hosted Services Specification” means the specification for the Platform and Hosted Services set out on all medium’s representative of Pal Platform and/or Agreements and/or in other Documentation;
1.39. “Initialisation Services”means the configuration, implementation and integration of the Hosted Services in accordance with any contract agreed to in writing by both the Parties outside of the ‘’Subscription Fee’’;
1.40. “Intellectual Property Rights” means all such right, title and interest (including goodwill) that each Party may have in and to intellectual and industrial property anywhere in the world, including, without limitation, any copyrights, patents, trademarks, know-how, designs, trade name/s, business name/s and identifying insignia or Confidential Information, as well as any such other intellectual property rights or such other rights of a similar nature (whether registered or unregistered) that either Party may have and/or the right to apply for any of them
1.41. “Maintenance Services”means the general maintenance of the Platform and Hosted Services, and the application of Updates (Minor, Feature or Version);
1.42. “Minor or Feature Update”means a hotfix, patch or minor version or feature update to any Platform software or infrastructure;
1.43. “Mobile App”means the mobile application/s created by the Provider for the Customer that is made available by the Provider through the Google Play Store, the Apple App Store and other distribution platforms;
1.44. “Parties”means the Parties as specified in the Services Order Form, being the Provider and the Customer, and “Party” shall mean any one of them, as the context may require;
1.45. “Personal Information”has the meaning given to it in the Protection of Personal Information Act, 2013;
1.46. “Platform”means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the Mobile App and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
1.47. “Platform consumption”means data storage and data served out via the Platform;
1.48. “Prime Rate”means the rate of interest per annum which is equal to Nedbank’s publicly quoted basic rate of interest, calculated daily and compounded monthly in arrears on the basis of a 365 (three hundred and sixty five) day year (irrespective of whether the year is a leap year), from time to time published by the said bank as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove;
1.49. “Protectable Interests”includes the Confidential Information related to the Provider, its goodwill and market reputation, its intangible assets and interests in general, its interests in the Agreements and the arrangements between the Provider and its clients and/or other suppliers and third parties;
1.50. “Provider”means immedia Studio Proprietary Limited (Registration no. 2001/023563/07), a company duly incorporated and registered in accordance with the laws of the Republic of South Africa,
with domicilium 2nd floor, Mayfair on the Lake, 5 Park Lane Umhlanga Ridge, Durban, 4319, South Africa;
contactable via telephone on +27 31 566 8000,
with postal address P.O. Box 25080, Gateway, 4319;
for the attention of Mr Anice Hassim, at email address [email protected];
1.51. “Schedule”means any schedule attached to the main body of the Contract or Services Order Form;
1.52. “Services”means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
1.53. “Services Order Form”means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
1.54. “Signature Date”means the date on which the Services Order Form is signed by the Party signing last in time;
1.55. “Support Services”means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
1.56. “Supported Web Browser” means the current release from time to time of Microsoft Internet Explorer 8.0 and above, Mozilla Firefox, Google Chrome, Microsoft Edge or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
1.57. “Term”means the Duration of the Agreement commencing on the Effective Date and terminating as per the Service Order Form;
1.58. “Terms and Conditions”means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
1.59. “Third Party Services”means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider; and
1.60. “User Interface”means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
1.61. “Update”means a hotfix, patch or minor version update to any Platform software;
1.62. “Upgrade”means a major version upgrade of any Platform software; and
1.63. “VAT”means value-added tax as may be levied in terms of the Value-Added Tax Act, No. 89 of 1991;
1.64. “Version Update or Upgrade” means a major version updated or upgrade of any Platform software or infrastructure.
- any reference in these Terms and Conditions to a statutory provision is to that statutory provision as at the Signature Date, as amended or re-enacted or replaced from time to time;
- when any number of days is prescribed in these Terms and Conditions and the Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;
- whenever performance is required to be made in these Terms and Conditions and the Agreement on any date and such date is not a Business Day, such performance shall be required to be made on the next Business Day;
- expressions defined in this Terms and Conditions shall bear the same meanings in schedules or annexures to the Agreement which do not themselves contain their own conflicting definitions;
- where any term is defined within the context of any particular clause in the Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of the Agreement, notwithstanding that that term has not been defined in this interpretation clause;
- where figures are described in the Agreement both in numerals and in words, the numerals shall prevail in the event of any conflict between the two;
- the expiration or termination of the Agreement shall not affect such of the provisions of these Terms and Conditions and the Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
- any reference in these Terms and Conditions and the Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under these Terms and Conditions and the Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be; and
- the words “include”, “including”, “in particular”, “other” and “otherwise” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the meaning or generality of any preceding word/s (and as such the eiusdem generis rule shall not apply).
2. USE OF SERVICES
- During the During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your pal account. We might provide some or all elements of the Subscription Service through third party service providers.
- Customers must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under an Order; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and Customers will at all times remain liable for your Affiliates’ compliance with the
- Additional You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Pal account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Pal account.
- The limits that apply to you will be specified in your Order Form, this Agreement or in our Features and/or Services Catalog, and for our Free Subscriptions, these limits may also be designated only from within the product itself. You must be 18 years of age or older to use the Subscription Service.
- We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve user experience. For further information on our modification rights that apply to your subscription, please refer to the features and/or product specifications.
- Customer Support. For information on the Customer Support Terms that apply to your subscription, please refer to https://pal.community.
- Acceptable Use. You will comply with our Acceptable Use Policy at https://pal.community/acceptable-use-policy/ (“AUP”).
- Prohibited and Unauthorised Use. Customers may not use the Subscription Service if you are legally prohibited from receiving or using Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the You/Users will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by contacting [email protected].
- Free Trial. Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as
- Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless: (i) you exceed your Maximum Requirements provided through the package subscribed too or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. Review of your product package is the Customers responsibility and understanding thereof.
- Fee Adjustments at Renewal. Upon renewal, we may increase your Subscription Fees up to our then-current list price set out in our Features or Package Catalogue. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at
the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below. Please review the Features or Product/Package Services information on https://pal.community that have different fee adjustment notice requirements.
- Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
- In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the ‘Suspension’ section or terminate your account in accordance with the ‘Termination for Cause’ section if we remain unable to successfully charge a valid Authorized Payment Method.
- Payment against invoice. If you are paying by invoice, we will invoice you no more than thirty (30) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable at the start of the month of your service, unless otherwise specified in the Order Form.
- Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information. Changes may be made on your Billing Page within your pal account. You authorize pal to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable, and all amounts paid are non- refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a pal Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
- Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
- Withholding Tax. If you are required to deduct or withhold tax from payment of your pal invoice, you may deduct this amount from the applicable Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).
- You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
4. DURATION AND EARLY TERMINATION
- The Agreement shall commence on the Effective Date.
- The Agreement shall continue in force indefinitely, subject to termination in accordance with any provision of the Service Order Form and these Terms and Conditions.
- Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
- Term and Renewal. The Customers initial subscription term will be renewed for the shorter of the subscription term, or for one year.
- Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent the renewal of your subscription, you or we must give written notice of non-renewal. Renewal notice periods are 30 days.
- Early Cancellation: Customers may choose to cancel a subscription/s early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term.
- Notwithstanding the provisions of the clause above, either Party shall be entitled cancel the Agreement, which cancellation shall be without prejudice to any other rights which the Party may have at law and under the Agreement:
- as specified in any Services Order Form and accompanying Schedules;
- as a result of a material breach, as contemplated in Clause 22 (Breach); or
- immediately, upon giving written notice by a Party in the event of the other Party:
- committing any act which would have been an act of insolvency in terms of the Insolvency Act, 1936, had it been a natural person;
- being provisionally or finally wound-up, and whether compulsorily or voluntarily, or placed under provisional or final judicial management;
- commencing proceedings for business rescue, as contemplated in the Companies Act, 2008;
- filing an application for its de-registration, liquidation or winding-up; or
- breaching the Agreement 3 (three) times in a period of a calendar year, as a result of which notice is given in terms of Clause 20 (Breach) in each such instance of breach.
- On termination of the Agreement, for whatever reason:
- each Party shall immediately return to the other or permit the other to collect or retain in the cloud, at the other’s election, all items in the possession of the other which are its property, including all documents, disks or other medium containing Customer Confidential Information and Confidential Information of the other Party and Personal Information of Mobile App users together with all copies thereof. The Customer shall procure that the Provider may retake possession of its property at any reasonable time by entry onto any premises where such property is kept; and
- the Customer shall immediately cease use of all Intellectual Property Rights and Confidential Information supplied by the Provider.
5. REFUNDS AND CANCELLATIONS
- The Customer shall read Clause 5 in conjunction with Clause 4.
- Cancellation: A cancellation is granted when termination is accepted by the Provider as stipulated in Clause 4.6. The Customer can opt to cancel a subscription/s early provided that any pre-paid subscription fees will not be issued.
- Refunds: No refunds are issued on pre-paid subscriptions.
- Promotional Conditions: All purchases and renewals under promotional conditions (discounts, bundles or preferred price) are non-refundable.
- Renewals of legacy plans are nun-refundable.
- Environmental issues of your local device (software, hardware) do not force refund of your subscription.
6. INITIALISATION SERVICES
- The Provider shall provide the Initialisation Services to the Customer.
- The Provider shall use reasonable endeavours to ensure that the Initialisation Services are provided promptly following the Effective Date.
- The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Initialisation Services; and subject to Clause 19.1 the Provider will not be liable to the Customer in respect of any failure to meet the Initialisation Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.
- Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Initialisation Services by the Provider shall be the exclusive property of the Provider.
7. HOSTED SERVICES
- The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date and upon completion of the Initialisation Services.
- The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer.
- The licence granted by the Provider to the Customer under the clause above is subject to the following limitations:
- the User Interface may only be used through a Supported Web Browser or Officials Mobile App/s;
- the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer.
- the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Services Order Form, provided that the Customer may add or remove concurrent user licences in accordance with the procedure set out by the Provider.
- Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any unauthorised person to access or use the Hosted Services;
- the Customer must not make any alteration to the Platform.
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
- The Customer shall implement and maintain reasonable security measures relating to Account access details, to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Account access details.
- The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.
- For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:
- a Force Majeure event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer’s computer systems or networks;
- any breach by the Customer of the Agreement; or
- scheduled maintenance carried out in accordance with the Agreement.
- The Customer must comply with the Acceptable Use Policy, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with the Acceptable Use Policy.
- The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
- The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
- The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 1 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on the basis.
- The Provider does not undertake to provide any features not already built into the Hosted Service as listed in Services Order Form. If the Customer requires additional features these may be subject to additional costs and delays and will need to be agreed in writing by the Parties.
8. MOBILE APPLICATIONS
- Only the Provider may upload the Mobile Applications to the Google Play Store, and / the Apple App Store, the web, or any other platform during the currency of the Agreement or any extension thereof.
- The Mobile Application shall not be transferred to any other third-party developer accounts, other than the Customers. The Mobile Applications may not be lawfully used outside of the Platform and Services.
- To publish and update apps to Google Play and the Apple App Store, it is required we provide proprietary information and files such as, but not limited to, APKs, IPAs, P12s, keystore certificates, push notification certificates, etc. These files and information are a proprietary part of our Service and will not provided to any other Party.
- Any violation of the foregoing limitations may result in (without limitation) termination of Services and/or termination of the Agreement.
- The Customer shall retain ownership of any and all logos, and all designs, text, graphics, images, information, data, software, sound files, other files and the selection and arrangement thereof provided by the Customer for incorporation into the Mobile Applications or provided by the Customer through data feeds to the Mobile Applications.
- You are solely responsible for the activity that occurs on or through the Mobile Applications. We will not be liable for your losses caused by any unauthorized use of your account, and you shall be solely liable for the losses due to such unauthorized use.
- The customer may create channels, chats or groups on the Platform in order to share articles and other content, and to send messages to End Users.
- The customer is solely responsible for your interactions with Users. We reserve the right, but have no obligation, to monitor disputes between you and Users. We will have no liability for your interactions with End Users, or for any End User’s action or inaction.
9. PLATFORM REVENUE
- The Hosted Service provides an advertising platform that will enable the Customer, including any Advertiser on whose behalf the Customer is providing Advertisements, to distribute advertising content, including graphics, hyperlinks, text, images, banners, messages, and other promotional content (“Advertisements”) to mobile device users (“Consumers”) on behalf of the Advertiser. The Advertiser’s access and use of the Service is governed by the Agreement and these Terms and Conditions.
- Platform Revenue will be on an agreed upon rate-card of products and services trafficked via the Hosted Service and Mobile Applications that will be offered to the market at large. Both Parties will have rights to defined inventory for promoting their own services.
- The Provider reserves the right to modify or discontinue, temporarily or permanently, the Service, or any features or portions thereof, with 30 (thirty) days’ prior notice or in agreement with the Customer.
The Customer agrees that the Provider will not be liable for any unplanned modification, suspension or discontinuance of the Service, or any part thereof.
- The Mobile Application and Hosted Service will deliver Advertisements on behalf of the Customer to Consumers in accordance with the criteria established through the Advertiser’s Campaign. Each Campaign shall specify the information necessary for the Provider to deliver the Advertisements, which information may change from time to time. The Provider does not control, endorse or adopt any Advertisements. The Provider is not to be responsible or liable in any manner for any Advertisements or Campaigns and undertakes no responsibility to update or review any Advertisements or Campaigns.
- The Provider, in its sole judgment, reserves the right to reject or remove any Advertisements for which the advertising materials, software code associated (e.g. pixels, tags, JS) or the website to which the Advertisement is linked, do not comply with its Acceptable Use Policy, or with any applicable law, regulation or other judicial or administrative order. Notwithstanding the foregoing, the Customer may not provide any such software code that would collect any Consumer Data in violation of the Protection of Personal Information Act, 2013.
- The Customer represents and warrants to the Provider that:
- the Customer has the right and authority to publish and display the Advertisements and to grant the rights granted herein;
- the Customer’s performance under the Agreement will not violate any agreement or obligation between the Customer and a third party or any applicable law, ordinance or regulation or cause the Provider to be in violation of any agreement or obligation between the Provider and a third party or any applicable law, ordinance or regulation;
- the Customer’s use of Consumer Data will not cause the Provider to violate any provision of the Protection of Personal Information Act, 2013;
- the Advertisements provided by the Customer do not now nor will in the future infringe upon or violate any Intellectual Property Rights of a third party, including but not limited to any patent, copyright, trademark, trade secret, trade dress, mask work, moral right, right of attribution or integrity or other intellectual property rights (collectively, “Intellectual Property Rights”) or non-proprietary right of any third party or violate the Acceptable Use Policy;
- the Advertisements provided by the Customer do not violate any applicable third-party policies, including but not limited to, third-party platform policies (such as Google Play and Apple App Store, as applicable).
10. MAINTENANCE SERVICES
- The Provider shall provide the Maintenance Services to the Customer during the Term.
- The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform.
- The Provider shall where practicable give to the Customer at least 1 hour prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services.
- The Provider shall provide the Maintenance Services with reasonable skill and care.
- The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 1 days written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on the basis.
11. SUPPORT SERVICES
- The Provider shall provide Support Services to the Customer during the term.
- The Provider shall make available to the Customer an online help page and in some instances depending on Order Form and Package Subscription, a help desk in accordance with the provisions of the Service Order Form and these Terms and Conditions.
- The Provider shall provide the Support Services with reasonable skill and care.
- The Customer may use the online help FAQ’s and the help desk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the help desk for any other purpose.
- The Provider shall respond to requests for Support Services made by the Customer through the help desk based on the service levels defined in the relevant tier of the subscription type and managed service provided.
The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 1 days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
12. DUTIES OF THE CUSTOMER
- The Customer must be 18 years of age or older to use the Services.
- Subject to the provisions of the Agreement, the Customer undertakes to, and in favour of, the Provider to:
- provide the Provider with clear written instructions and all such information as may be required in order to enable the Provider to render the Services;
- render reasonable assistance necessary to enable the Provider to carry out the Services speedily and efficiently;
- from time to time and on the reasonable request from the Provider, permit the Provider to conduct preventative maintenance;
- comply with all laws, rules, regulations and requirements of any governmental body and all applicable codes of conduct and other similar principles laid down by any representative body of the industry;
- maintain all required permits, licenses or other official or governmental prerequisites for use of the Services by the Customer;
- acquire, maintain and pay for an appropriate technology environment, including all required hardware and software duly configured in order for the Provider to provide the Services to the Customer; and;
- at no time represent that it is the Provider or it is the provider of the Services or assert any rights in respect of those Services other than those granted by the agreement.
- Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
- co-operation, support and advice;
- information and documentation; and
- governmental, legal and regulatory licenses, consents and permits,
- as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
- The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.
- The Customer is responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have gained access to the Customer’s account).
- Any breach of the provisions of this clause (Duties of the Customer) shall be regarded as a material breach of the Agreement.
13. CUSTOMER DATA
- You own the Mobile Application data (content), Community and its End User content and you are responsible for protecting those rights. However, we reserve rights to lock your Mobile and Web Application/s, software, hosted services, or community for further viewing, editing or updating, in case your services are terminated.
- The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement.
- The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
- The Provider may allow you to post content on the Platform, including comments, photos, blog posts, messages, blog URLs, audio files, videos and other materials. Any content a User submits, posts, displays, or otherwise makes available on the Platform, including all Intellectual Property Rights therein, is referred to as “User Content.” YOU RETAIN OWNERSHIP OF YOUR USER CONTENT.
- You own all the User Content that you post or publish on the Platform or Service.
- The Provider is under no obligation to screen Content, but the Provider has the right (but not the obligation) in its sole discretion to refuse or remove any Content that is provided by the Customer.
- The Provider has the authority, but not the obligation, to remove Content and Customer accounts containing Content that the Provider determines in its sole discretion to be actually or potentially unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or actually or potentially in violation of any party’s intellectual property rights or these Terms and Conditions.
- Verbal, physical, written or other abuse (including threats of abuse or retribution) of any of the Providers customers, employees, members, or officers will result in immediate account termination.
- The Providers takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Platform or Service/s.
- You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Platform or Service/s, is solely your responsibility, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. We are not responsible for any public display or misuse of your User Content.
- If the Customer operates a social network, manages a community, post material to the Platform or Service, post links on the Platform and Service, or otherwise make (or allow any third party to make) material available by means of the Platform or Service (any such material, “Content”) or other services, the Customer is entirely responsible for the content of, and any harm resulting from that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio or video file, or computer software.
- By making Content available, the Customer represents and warrants that:
- The downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- The Customer has fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to Users any required terms;
- The Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- The Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- The Content is not pornographic, libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- The social network, community, software, or application is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, blogs and web sites, and similar unsolicited promotional methods;
- The social network, community, software, or application is not named in a manner that misleads your readers into thinking that you are another person or company. ; and
- You have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by social network or otherwise.
- By submitting Content to the Provider for inclusion on any services or applications provided by the Provider, you grant the Provider a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your mobile application. If you delete Content, the Provider will use reasonable efforts to remove it from the Service, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
14. INTEGRATION WITH THIRD PARTY SERVICES
- The Provider may integrate the Hosted Services with any Third-Party Services at any time.
- Notwithstanding the presence of any Third-Party Services integration, particular Third Party Services shall only be activated with respect to the Hosted Services account of the Customer by:
- the Customer; or
- the Provider with the prior written agreement of the Customer.
- The Provider shall use reasonable endeavors to maintain any integration with Third Party Services that has been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third-Party Services integration at any time in its sole discretion.
- The supply of Third-Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third-Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third-Party Services.
- The Customer acknowledges and agrees that:
- the activation of Third-Party Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third-Party Services and vice versa;
- the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Services;
- the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third-Party Services is lawful; and
6. the Customer shall ensure that the transfer of Customer Data to a provider of Third-Party Services does not infringe any person’s Intellectual Property Rights or other legal rights and will not put the Provider in breach of any applicable laws.
7. Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third-Party Services integration.
8. Subject to Clause 13:
- the Provider gives no guarantees, warranties or representations in respect of any Third-Party Services; and
- the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third-Party Services.
15. INTELLECTUAL PROPERTY RIGHTS
- Nothing in these Terms and Conditions and the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
- All Intellectual Property Rights belonging to a Party prior to the execution of the Agreement shall remain vested in that Party.
- Any unauthorised use of any Intellectual Property Rights by either Party shall constitute a material breach of the Agreement.
- Each Party acknowledges and agrees that all usage by Party of the other Party’s Intellectual Property Rights, and any goodwill established thereby, shall be for the exclusive benefit of the Party who owns the Intellectual Property Rights and that the Agreement does not confer goodwill or any other interest in the Intellectual Property Rights on them.
- Notwithstanding the provisions of Clauses 12.2 and 12.3, the Customer acknowledges and agrees that the Provider shall have the right to use certain of its intellectual property (including the Customer’s logos, tradename and/or trademarks) in its marketing materials.
- The provisions of this clause (Intellectual Property Rights) shall survive the termination of the Agreement for the purpose they were agreed.
- Any improvements, custom development, suggestions, ideas or feedback concerning the Service provided by the Customer to the Provider shall become the sole property of the Provider. The Provider shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and circulation thereof for any purpose, without acknowledgment or compensation to the Customer.
16. CHARGES, PAYMENTS AND BILLINGS
- The Customer shall pay the Charges to the Provider in accordance with the Service Order Form and these Terms and Conditions.
- If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the Parties being exceeded.
- In consideration for rendering the Services, the Customer shall pay the Provider the charges set out herein, without deduction or set-off, effected by debit card, credit card, direct debit or electronic transfer to the Provider’s bank account reflected on the invoice, unless otherwise agreed between the Parties from time to time. The Provider shall be entitled to charge the Customer an additional once-off Initialisation fee and cancellation fee related to hand over of the Customer data.
- The Provider shall be entitled to charge the Customer an Initialisation Fee after the Effective Date, which shall be payable prior to commencement of work.
- The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate. The pal Licence Fee shall be invoiced and payable from the date of the transaction and/billing taking place and is not aligned to the operability of the Hosted Services by the Customer.
- The Customer must pay the Charges to the Provider on the receipt of an invoice issued in accordance with this clause, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
- Any charges in relating to Consumption (SMS, push messages and various cloud elements) shall be invoiced to the Customer in arrears of the period to which they relate. These invoices will be payable immediately on presentation.
- The Provider shall be entitled at any time to request that the Customer pay a deposit or pre-payment to the Provider in consideration of the Consumption charges.
- The Provider shall be entitled at any time to increase the Charges commensurate with any increase in the actual cost to the Provider, where the costs are directly attributable to the Hosted Services, and the cost price of the Hosted Services have changed by reason of changes in input costs, whether by reason of exchange rate fluctuations, supply side increases or otherwise.
- The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 (thirty) days’ written notice of the variation on any anniversary of the Effective Date.
- If the Customer fails to pay the Charges, the Provider may, without prejudice to any of its rights under the Agreement, suspend the performance of its obligations in terms of the Agreement, and shall be entitled to charge interest at the rate of 2% (two percent) above the Prime Rate, plus any additional costs incurred by the Provider as a result of the Customer’s failure to make payment on the due date.
- Should the Customer require a change or modification to the Services provided by the Provider during the subsistence of the Agreement, the Customer shall immediately notify the Provider to such effect in writing (the “Change Order”). The Provider shall be entitled to recalculate the Service Fee payable by the Customer for the Services under the Change Order. For the avoidance of doubt, the Service Fee in respect of the Change Order shall become payable in accordance with the provisions of Clause 13.5 above.
- Unless otherwise stipulated in the Agreement, all amounts in the Agreement are exclusive of VAT (where applicable).
- In the implementation of the Agreement either Party may either be required to disclose Confidential Information held by it to the other or may itself require access to Confidential Information held by the other Party.
- The Parties undertake in favour of each other and its successors in title and assigns, which undertaking shall survive termination of the Agreement, that in order to protect, inter alia, the proprietary interests of the other Party in respect of the Confidential Information it shall treat any information obtained by the Party in terms, or arising from the implementation, of the Agreement shall be treated as confidential by the Party and shall not be used, divulged or permitted to be divulged to any person not being a Party to the Agreement, without the prior written consent of the other Party save that:
- each Party shall be entitled to disclose such information to such of its employees and/or contractors who need to know for the purposes of the Agreement. Before revealing such information to any such employees and/or contractors, it undertakes to procure that the employees and/or contractors are aware of the confidential nature of the information being made available to them;
- any information which is required to be furnished by law or by existing contract; and
- no party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it.
3. On termination of the Agreement for any reason whatsoever, the Customer shall forthwith deliver to the Provider all documents, electronic data, recordings, computer diskettes, copies and other records relating to the Confidential Information which has been disclosed to it and, insofar as it is not possible to deliver any such data or records, the Customer shall destroy such data or records.
4. The Customer shall not acquire any rights or interests in or to, or ownership of, the Confidential Information.
5. The Parties shall treat as strictly confidential all Confidential Information received or obtained as a result of entering into or performing the Agreement.
6. If a Party is uncertain about whether any information is to be treated as confidential in terms of this clause (Confidentiality), it shall be obliged to treat it as such until written clearance is obtained from the other Party.
7. The Provider must:
- act in good faith at all times in relation to Customer Confidential Information; and
- not use any of the Customer Confidential Information for any purpose other than to enable it to perform the Services.
8. This clause (Confidentiality) imposes no obligations upon the Provider with respect to Customer Confidential Information that:
- is known to the Provider before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
- is or becomes publicly known through no act or default of the Provider; or
- is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
9. The undertakings in this clause (Confidentiality) shall survive termination of the Agreement for the purpose they were agreed.
18. DATA PROTECTION
- The personal information hereby provided by the client will be used and processed as is necessary to carry out actions and functions for the conclusion or performance of the agreement entered between the parties as well as to inform the client of additional goods and/or services that could be of value to the client. The client acknowledges that he/she/it has a right to object to the processing of its personal information for marketing purposes and unless expressly stated otherwise hereby consents to its personal information being used by IMMEDIA STUDIO (PTY) LTD for the above-mentioned purposes.
- The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with the Agreement will not breach any applicable data protection or data privacy laws (Protection of Personal Information Act, 2013).
- The Provider shall only process the Customer Personal Data during the Term and for not more than 180 days following the end of the Term, subject to the other provisions of this Clause 15.
- The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
- the Provider may transfer the Customer Personal Data internally to its own employees, offices and facilities in jurisdiction(s);
- Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
5. As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data.
- Each Party hereby represents, warrants and undertakes to and for the benefit of the other Party that:
- it is duly and validly registered in accordance with the laws of its domicilium country;
- it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Agreement and to perform its obligations under these Terms and Conditions;
- it has all such licenses, consents, permits and other authorities prescribed by law for the lawful conduct of its business; and
- it shall not incur any liability on behalf of the other Party.
2. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
20. NON-COMPETE UNDERTAKING IN FAVOUR OF THE PROVIDER
- The Customer acknowledges that as a result of the Agreement it is and/or shall become possessed of and have access to Confidential Information, become intimately associated with the Providers goodwill, suppliers and customers (including the clients).
- The Customer acknowledges that:
- the Protectable Interests are legitimate proprietary and commercial interests of the Provider, which the Provider is entitled to protect; and
- the business of the Provider would be prejudiced if the Customer were to exercise its influence over the customers and suppliers of the Provider (including the clients) contrary to the interests of the Provider.
- In consideration for the conclusion of the Agreement and in the interest of the protection and maintenance of, inter alia, the Protectable Interests and to avoid the Customer unfairly competing with the Provider, the Customer undertakes to and in favour of the Provider that it shall not for the duration of the Agreement and for a period of 2 (two) years after the termination of the Agreement, whether directly or indirectly and either solely or jointly:
- canvass, influence or try to persuade any customer of the Provider (including the clients) to take its custom elsewhere and/or to purchase the products offered by the Provider from any other person/entity; or
- offer employment to or cause to be employed any person who was employed by the Provider at any time within the 2 (two) year period immediately preceding the termination of the Agreement.
- The Customer hereby acknowledges, agrees and records that it has given careful consideration to the restraints contained in this clause (Non-Compete Undertaking in favour of the Provider) and that such restraints are fair and reasonable (after taking all relevant circumstances into consideration) and go no further than is reasonably necessary to protect the Protectable Interests.
- The restraints and undertakings in this clause (Non-Compete Undertaking in favour of the Provider) shall be severable from the Services and shall survive termination of the Agreement for any reason whatsoever, notwithstanding a breach of the Agreement by either Party.
21. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
- The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
- The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
- The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
- The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
- The Customer acknowledges and accepts that understand that the technical processing and transmission of the Services, including the Customer’s Content, may be transferred unencrypted and involve
- transmissions over various networks; and
- changes to conform and adapt to technical requirements of connecting networks or devices.
- The Customer acknowledges that the Provider uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services and that the Provider cannot be held liable for any failure or delay on the part of such third party vendors and hosting partners.
22. LIABILITY AND INDEMNITY
- Without prejudice to any of the other rights of the Provider arising from any provisions of the Agreement, the Customer hereby indemnifies and holds the Provider and its Affiliates harmless from and against all or any, direct and indirect, loss, damage, liability or expense (including attorneys’ fees) relating to any third-party claim against the Provider or an Affiliate relating to the Customer and/or its customers’ use of any products related to the Services and/or which is a result of, or which may be attributable to, any misconduct, fraudulent activity or negligence of the Customer, its employees and employees of its subcontractors, its representatives and suppliers.
- The Provider shall exercise due care and attention in the exercise of its duties and the performance of its functions in terms of the Agreement, but no claims shall lie against the Provider, and the Customer hereby further indemnifies and absolves the Provider absolutely, on demand, from and against any and all direct or indirect, losses, claims, demands, actions, suits, proceedings, fines, costs, disbursements or expenses of whatsoever nature (including consequential losses) arising out of the Provider’s bona fide exercise or failure to exercise any such power or perform any of its duties hereunder, save in the event of gross negligence or wilful dishonesty of the Provider or any of its directors, officers or employees.
- Under no circumstances whatsoever, including as a result of its negligent (including grossly negligent) acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable, shall the Provider, its Affiliates or its servants (in whose favour this constitutes a stipulatio alteri) be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), sustained by the Customer, its directors and/or servants, including but not limited to any loss of operation time, corruption or loss of information, loss of contracts and/or loss of profits.
- The Customer shall have no claim for damages against the Provider and may not withhold or delay any payment or performance due to the Provider by reason directly or indirectly of any act or omission of the Provider or any director, officer, employee, representative or other service provider of or to the Provider.
- Should a Party (the “Defaulting Party”) commit a breach of the Agreement and/or fail to comply with any of the provisions of the Agreement, then the other Party (the “Aggrieved Party”) shall, if it wishes to, enforce its rights hereunder, be obliged to give the Defaulting Party 10 (ten) Business Days’ written notice to remedy the breach and/or failure, which notice shall specify, in sufficient detail, the breach and the conduct required to rectify it.
- If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled, but not obliged, to immediately cancel the Agreement against the Defaulting Party without further notice or to claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations in respect of which it is in breach of the Agreement, in either event without prejudice to the Aggrieved Party’s rights to claim damages.
- Notwithstanding anything to the contrary contained in the Agreement, the Aggrieved Party shall not be entitled to cancel the Agreement for any breach by the Defaulting Party unless such breach is a material breach going to the root of the Agreement and is incapable of being remedied by a payment in money, or if it is capable of being remedied by a payment in money, the Defaulting Party fails to pay the amount concerned within 10 (ten) Business Days after such amount has been finally determined and payment thereof by the Defaulting Party has been demanded in writing by the Aggrieved Party.
24. FORCE MAJEURE
- A Party shall not be liable for a failure to perform any of its obligations in terms of the Agreement insofar as it is able to prove that:
- such failure was due to an impediment beyond its reasonable control;
- it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of the Agreement; and
- it could not reasonably have avoided or overcome the impediment or at least its effects,
and, for purposes of this clause (Force Majeure), the following events (which enumeration is not exhaustive) shall be deemed to be impediments beyond the control of each of the Parties (“Force Majeure”), namely:
- war, whether declared or not, civil war, civil violence, riots and revolutions, acts of piracy, acts of sabotage;
- natural disasters such as violent storms, cyclones, earthquakes, floods and destruction by lightning;
- explosions, fires and destruction of plant, equipment, machinery and machines and of any kind of installations;
- boycotts, strikes and lock-outs of all kinds, go-slows, occupation of or work stoppages at either Party’s premises; and
- acts of authority, whether lawful or unlawful, apart from acts for which the Party seeking relief has assumed the risk.
- Should the Force Majeure continue for a period of more than 45 (forty-five) days then either Party shall be entitled forthwith to cancel the Agreement in respect of any obligations still to be performed hereunder.
- Whilst any Force Majeure is in progress, the Party invoking it shall have a duty to mitigate its damages.
- A Party invoking Force Majeure shall, upon termination of the event giving rise thereto, forthwith give written notice thereof to the other Parties.
25. RELATIONSHIP OF PARTIES
- The relationship between the Parties is that of independent contractors.
- The Customer shall not assume any obligations on behalf of the Provider nor make any representations on behalf of the Provider, nor bind or purport to bind the Provider in any manner whatsoever. The Customer shall not be a commercial agent or distributor, nor in any way represent itself as being the agent or distributor of the Provider.
- It is understood and agreed by the Parties hereto that the Agreement does not create a fiduciary relationship between them. The Agreement does not create a partnership, joint venture or agency between the Parties and neither Party shall be liable for the debts of the other Party, howsoever incurred.
26. NOTICES AND DOMICILIA
- Each of the Parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from the Agreement at their respective addresses set forth in the clause entitled Interpretation and Definitions above.
- Each Party may at any time, by notice in writing to the other Party, change its domicilium to any other address which is not a post office box or post restante.
- The Provider may subcontract any of its obligations under the Agreement.
- The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
- Notwithstanding any other provision of the Agreement, the Customer acknowledges and agrees that the Provider may subcontract to a third-party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
- The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider’s contractual rights and obligations under these Terms and Conditions.
- The Customer may not, without the prior written consent of the Provider, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under the Agreement.
29. JURISDICTION AND GOVERNING LAW
- The Agreement will in all respects be subject to, governed by and construed under the laws of the Republic of South Africa.
- Subject to the provisions of clause 28 (Dispute Resolution), the Parties hereby consent and submit to the non-exclusive jurisdiction of the KwaZulu-Natal High Court, Durban in any dispute arising from or in connection with the Agreement.
- For the purposes of clause 26.1 above, the Parties herewith submit to the jurisdiction of the Court referred to in clause 26.1 above and appoint as their domicilia for those purposes their respective addresses as set out in the Service Order Form.
30. GOOD FAITH
- The Parties hereby undertake, during the existence of the Agreement, to at all times show to each other the utmost good faith in their dealings with each other.
31. DISPUTE RESOLUTION
- If any dispute arises out of or in connection with the Agreement, its termination or cancellation or the subject matter thereof, including claims in delict or for rectification of the Agreement, a Party may declare that a dispute exists by notice in writing to the other Party.
- Save in respect of those provisions of the Agreement which provide for their own remedies that are incompatible with litigation or arbitration, a dispute (the “Dispute”) which arises in regard to:
- the interpretation of; or
- the carrying into effect of; or
- any of a Party’s rights and obligations arising from; or
- the termination or purported termination of or arising from the termination of;
- the rectification or proposed rectification of; or
- any documents furnished by the Parties pursuant to the provisions of,
- the Agreement or out of or pursuant to the Agreement, such Dispute shall be resolved in the manner provided for in this clause (Dispute Resolution) (other than a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction).
- Should any Dispute with regard to any of the matters described in clause 28.2 above arise between the Parties, such Dispute shall be dealt with as follows:
- the Party contending that a Dispute has arisen (the “Claimant”) shall deliver a written notice to such effect to the other Party;
- within 10 (ten) Business Days after receipt of the notice referred to in clause 28.3.1 above by the Party to whom such notice is addressed, a committee comprising of 2 (two) senior executives of each of the Parties shall be constituted to attempt to resolve the Dispute. If the Dispute remains unresolved for a period of 14 (fourteen) days after the aforementioned notice is received by the Party to whom such notice is addressed, then persons nominated by the Parties to represent them with regard to the Dispute shall:
- agree in writing a process for resolving the Dispute, or
- agree in writing to refer the matter to litigation in the courts described in clause 28.1 above or such other court as the Parties may agree to in writing or to arbitration in terms of the provisions below of this clause (Dispute Resolution).
- Should the Parties fail to agree whether the Dispute is principally a legal, accounting or other matter within 7 (seven) days after the arbitration was demanded, the matter shall be deemed to be a legal matter.
- Should the Parties fail to agree the appointment of an arbitrator within 7 (seven) days after the delivery of the Arbitration Notice, the referring Party shall request the President for the time being of the KwaZulu-Natal Law Society, South Africa or its successor to appoint in writing an arbitrator.
- Unless otherwise expressly agreed to in writing by the Parties:
- the arbitration proceedings shall be held at Durban, South Africa;
- the arbitration shall be conducted in accordance with the rules (the “Arbitration Rules”) of the AFSA. Should AFSA, for any reason, have ceased to exist at the time of the referral of the Dispute to arbitration, the arbitration shall be conducted in accordance with the Standard Rules of the Association of Arbitrators of South Africa, which rules are hereinafter also referred to as the “Arbitration Rules”;
- the arbitrator shall be entitled, in his or her sole discretion, on the written application of a Party to the Dispute (which application shall be made in a manner acceptable to the arbitrator) at any time after the referral of the Dispute to arbitration, to amend the Arbitration Rules and/or any time period provided for therein or to supplement the Arbitration Rules in the interests of resolving the Dispute effectively, efficiently and economically, but provided that no such amendment or supplemental rule shall operate retrospectively;
- the arbitration shall be subject to the provisions of the Arbitration Act, 1965 (the “Arbitration Act”); and
- the arbitration proceedings shall be conducted as expeditiously as possible.
- The provisions of this clause (Dispute Resolution) shall prevail to the extent of there being any conflict between the Arbitration Rules and this clause (Dispute Resolution).
- The provisions of this clause (Dispute Resolution):
- constitute an irrevocable consent by the Parties to the arbitration proceedings provided for herein and no Party shall be entitled to withdraw from the provisions of this clause (Dispute Resolution) or claim at any such proceedings that it is not bound by this clause (Dispute Resolution) or such proceedings; and
- are severable from the rest of the Agreement and shall remain in effect despite the termination, cancellation, invalidity or alleged invalidity of the Agreement for any reason whatsoever.
- Nothing in this clause (Dispute Resolution) shall preclude a Party from seeking interim and/or urgent relief from the court referred to in clause 28.1 above for the protection of any rights pending the final determination of the Dispute.
- The decision of the arbitrator shall be final and binding on the Parties and may be made an order of any competent court at the instance of either of the Parties.
- The Provider and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification agreed in the Services Order Form or in writing by the parties.
- All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider (unless the parties agree otherwise in writing).
- From the time and date when a Customisation is first delivered or made available by the Provider to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer’s rights to use the Customisation shall be governed by the Clause related to the Hosted Services.
- The Customer acknowledges that the Provider may make any Customisation available to any of its other customers or any other third party.
33. MODIFICATIONS AND NEW FEATURES
- The provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), in all cases with or without notice.
- Any new features that augment or enhance the Services, including the release of new tools and resources, shall be subject to the Service Terms and Conditions.
- Continued use of the Services after any such changes shall constitute the Customer’s consent to such changes.
- The Provider shall not be liable to the Customer or to any third party for any modification, suspension or discontinuance of the Services.
- From time to time, The Provider may issue an update to the systems that may add, modify, and/or remove features from the Services. These updates may be pushed out automatically with little or no notice, although the Provider may take reasonable steps to notify the Customer in advance of an upcoming update, including details on what the update
34. BETA FEATURES
- Some Platform releases contain beta features.
- We release these beta features to collect feedback on their implementation so that we can improve them.
- We value any feedback on these beta features, as it enables us to provide you with the best possible product.
- By submitting any suggestion, you agree that your disclosure is voluntary, unsolicited and without restriction and will not place the Provider under any fiduciary or other obligation, and that we are free to use the suggestion without any additional compensation to you, and/or to disclose the suggestion on a non-confidential basis or otherwise to anyone.
- Also, we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services.
- Please take note of the following limitations regarding beta features:
- Beta features may be incomplete; future releases may include more functionality to complete the features.
- Beta features may change in future releases, depending on the feedbacks.
- Even though we aim for backwards compatibility, the Provider can’t guarantee backwards compatibility between monthly releases for beta features.
- Beta features are not covered by any Service Level Agreements.
- We value feedback, including tickets describing problems with beta features, but these tickets will not be handled according to your Service Level Agreement.
- We cannot guarantee timely fixes for any problems you encounter with beta features
- Beta features should not be used for production applications
- Beta features may contain bugs, which could potentially lead to data corruption
- The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.
- The Customer must not make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Provider.
37. HOW WE UPDATE THESE TERMS AND CONDITIONS
- These Terms and Conditions are maintained on our website. We reserve the right, in our sole discretion, to modify or replace these Terms and Conditions from time to time, and so you should review this page periodically. When we change these Terms and Conditions in a material way, we will update the ‘last updated’ date on this page. Your continued use of the Service after any such change constitutes your acceptance of the new terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Service.
- The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
- No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
- No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
- No alteration, variation of, addition to, consensual cancellation of or waiver of any right arising in terms of the Agreement (including this clause) shall be of any force or effect unless it is reduced to writing and signed by all the Parties to the Agreement or their duly authorised representatives.
- If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect.
- If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- The Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party.
- The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
- No relaxation, indulgence or extension of time which a Party (“the Grantor”) may show or grant to any other Party, shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the other Party which might have arisen in the past or which might arise in the future, save should such waiver be reduced to writing and signed by the Parties.
Each Party shall bear its own costs incurred in respect of the negotiation, preparation, conclusion and implementation of the Agreement (including the fees of any professional advisors).
UPDATED 2 November 2023