These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide services to you. The commercial terms of any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.
2. Definitions and interpretation
additional fee means a charge you must pay us for the supply of any services outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between us;
administrator means an authorised user in your employ who is authorised to provision, manage and administer certain services;
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
business day means any day other than a Saturday, a Sunday or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;
business hours mean our normal business hours on business days;
contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;
effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;
fees mean the fees, charges, or purchase consideration that you will pay to us in respect of services we provide under orders;
ICT means information, communication or technology;
order means a services order agreed to and signed by both the parties describing the specific services that we will provide to you;
our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
personal information means personal information as defined by the Protection of Personal Information Bill;
personnel mean any director, employee, agent, consultant, contractor or other representative;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;
services mean any services we or related persons provide to you, under orders;
service levels mean the levels according to which we will provide each service as agreed by parties in writing and signed;
sign means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of each of our duly authorised representatives;
signature date means the date of signature by the party signing last;
tax means any:
· tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction);
- duty (including stamp duty);
- tariff, rate, levy; or
· any other governmental charge or expense payable;
terms mean the terms, consisting of:
- these terms of service; and
· any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific services);
third party contractor means any contractor, supplier, service provider or licensor of a part of the services, which is not a party to the agreement;
third party software means software that is owned by third parties and includes open source software that we have been authorised to use to provide the services or sub-license;
we , us, or our means the vendor or service provider that enters into an order and, if specified in the order, those related to it;
writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;
you or your means the customer that enters into an order and, if specified in the order, those related to it;
your data means your data (including information about an identifiable person) that:
· you (or any third party on your behalf) provide to us; or
· we generate, process, or supply to you in providing the services; but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors;
2.1 Definitions in the order. Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.
2.2 Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
2.3 Conflict. If there is a conflict of meaning between these terms and any order, the order will prevail in respect of your use of the relevant services.
The terms commence on acceptance and continue until terminated. Where the duration of this agreement is specified in an order, if you are a “consumer” for purposes of the Consumer Protection Act, you will be entitled to terminate the relevant service prior to the expiry of the term on 20 business day’s written notice to us. However, we will be entitled to charge you an early termination fee.
4.1 Capacity. You represent and warrant that you (and any person who places an order):
· are old enough under applicable law to enter into the agreement;
· are legally capable of concluding any transaction;
· possess the legal right, full power, and authority to enter into the agreement; and
· will submit true, accurate and correct information to us.
4.2 Minors. If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the agreement or that you have obtained legal status in another manner.
4.3 Invitation to do business. The marketing of the services by us is merely an invitation to do business or for you to make an offer to procure services. The parties only conclude a valid and binding order when we accept the offer made by you. Unless proven to the contrary, we only accept an offer relating to services, when we begin providing the services. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.
4.4 Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you.
4.5 Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any services when we accept your offer.
4.6 Time and place. The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office. We do not need to communicate the acceptance of the offer to you.
4.7 Orders. The terms in effect at the time you make an offer will govern the order. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders.
We will provide the services to you as detailed in the relevant order and accompanying project brief.
6. Your data
6.1 Your data. We are not responsible for any of your data stored on our system.
- Legal obligations . We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. We both acknowledge that we are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
- Responsible party . You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
- Trans-border flows of your data . You consent to us transferring your data across a country border to enable us to comply with our obligations under the agreement. You are solely responsible for determining that any transfer of your data across a country border complies with the applicable laws.
- Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
6.3 Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
6.4 Preservation of integrity of your data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
6.5 Records. You agree that our records are prima facie evidence of the services supplied to you.
6.6 Return of data. On termination of any order, each party will return to the other party in the form in which it was received all of the other party’s data or information provided to the party for the purpose of the performance of the relevant order.
7. Intellectual property
7.1 Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement; we will own all rights, title, and interest in our technology.
7.2 Use of our technology. If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right or interest in it.
7.3 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
7.4 Restrictions. Except as expressly permitted under the agreement, the services may not be:
· modified, distributed, or used to make derivative works;
· rented, leased, loaned, sold or assigned;
· decompiled, reverse engineered, or copied; or
· reproduced, transferred, or distributed.
7.5 Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
8. Our warranties
8.1 Service warranties. We warrant that in relation to the services:
· We and our personnel will possess and have the right to use knowledge and expertise sufficient to enable us to provide the services.
· We will employ a sufficient number of suitably trained personnel to provide the services and to achieve the service levels;
· We will provide the services in accordance with all applicable laws, enactments, and regulations.
8.2 General warranties. We warrant further that:
· We have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement;
· We and our personnel will not knowingly introduce any malicious software into your material or your system.
9. Disclaimer of warranties
9.1 Disclaimer. You use our services at your sole responsibility and risk. We provide the services on an “as is” and “as available” basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:
· any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement;
· any warranties regarding third party software;
· that the services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure, error-free or free from infection by malicious software. You should keep up-to-date security software on any systems used to access the services.
9.2 Exclusion of liability. Despite any warranty we give, we will not be liable regarding any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.
10. Your warranties
10.1 You warrant that:
· you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;
· by entering into an order you are not acting in breach of any agreement to which you are a party;
and you agree to indemnify, defend, and hold harmless us (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.
11. Fees and payment
11.1 Due dates. You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the order.
11.2 Manner of payment. You must make payment in the manner specified.
11.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may halt the provision of any services until you have paid all amounts that are due.
11.4 Interest on overdue amounts. To the extent permitted by applicable law, any amount not paid by you on the date of the statement of outstanding invoices will bear interest for our benefit, from the due date until the date you pay it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of our bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
11.5 Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the agreement.
11.6 Withhold payment. You may not withhold payment of any amount due to us for any reason.
11.7 Certificate. A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be proof of the correctness of the certificate’s contents.
11.8 Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
11.9 Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
11.10 Reimburse costs. If we suspend the service, you will pay to us the costs incurred by us (including redeployment, travel and associated expenses) in remobilising our employees affected by the agreement and recommencing the services.
12. Intellectual property infringement
12.1 Defence. We will defend you against any claims made by an unaffiliated third party that any services infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgment (or settlement to which we consent). We will reimburse you with all costs you reasonably incurred in connection with assisting us with the defence of the action. You will promptly notify us of the claim in writing and we will have sole control over its defence or settlement.
12.2 Consequences of successful claim by third parties . If any third party succeeds in its claim for the infringement of any intellectual property rights, we may within 30 calendar days of the infringing item having been found to so infringe:
· obtain for you the right to continue using the infringing item or the parts that constitute the infringement;
· replace the infringing item or the parts that constitute the infringement with another product that does not infringe and that in all respects operates substantially in accordance with its specifications;
· alter the infringing item in a way as to render it non infringing while still in all respects operating substantially in accordance with its specifications; or
· withdraw the infringing item and refund to you all fees paid by you to us under the relevant order specifically with regard to the infringing item in the preceding six calendar month period.
12.3 Exclusion. We will not be liable for any claim that arises out of goods or services you select and acquire from third parties.
12.4 Survival. This clause will survive termination of the agreement.
13. Project managers
13.1 Appointment. On the effective date, each party will appoint a suitably qualified and responsible person to act as their project manager. If a party does not appoint a project manager and that party is a natural person, then that party will be its own project manager. Otherwise, the natural person that is ordinarily responsible for the day-to-day administration of that party will be its project manager.
13.2 Function. The project managers’ responsibilities include to manage and coordinate the services and to discuss and manage any changes.
13.3 Replacement. A party may, on seven calendar days’ written notice to the other, appoint an alternative project manager who is suitably qualified and responsible.
14. Limitation of liability
14.1 Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to a you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the goods or services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
14.2 Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.
14.3 Exclusions. The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.
14.4 We are not liable for your default. We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
14.5 Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.
14.6 Indemnity. We agree to indemnify, defend and hold you (and your personnel) harmless against any and all:
· loss of or damage to any property or injury to or death of any person; and
· loss, damage (including attorneys’ fees on an attorney and own client basis), costs and expenses that you may suffer or incur arising directly or indirectly from: (i) any wilful misconduct or fraud of us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property.
14.7 Liability. Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.
15.1 If a party:
· does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so;
· breaches this agreement materially twice or more in any six month period;
· is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
· takes steps to deregister itself (close down) or is deregistered;
· makes any settlement or arrangement with its creditors; or
· fails to pay a court order against it (does not satisfy a writ of execution) for more than one million rand, within 21 days;
then the other party may, without prejudice to any of its rights:
· claim specific performance of this agreement (make the party comply with this agreement); or
· immediately cancel this agreement in writing; and
· claim damages from the other party, including any claim for any fees already due.
16. Effect of termination
16.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to us for services rendered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
16.2 Post termination assistance. Following termination, you will be entitled to take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.
16.3 No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect: the renewal or extension of the term of any agreement; or
16.4 Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
17. Resolving disputes
17.1 Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
· Negotiation (direct talks to try and agree how to end the dispute); failing which
· Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
· Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
17.2 Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
17.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
17.4 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
17.5 Agree otherwise in an order. The parties may agree otherwise in an order.
17.6 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
17.7 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
17.8 Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
18. Notices and domicile
18.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.
18.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
18.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.
18.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
18.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
19. Force Majeure
19.1 Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
19.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
19.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.
20. Assignment and subcontracting
20.1 No assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of its business or some of its assets.
20.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
20.3 Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
21.1 No temporary employment service or partnership. Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
21.2 No employment relationship. Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
22.1 Entire agreement. The agreement is the entire agreement between the parties on the subject.
22.2 Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on the website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.
22.3 Changes to any third party software license agreement . We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on the website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.
22.4 Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
22.5 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.
22.6 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.
22.7 Governing law. South African law governs this agreement.
22.8 Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
22.9 Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
22.10 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
22.11 Right to reference. You consent to us using your name and a general description of the services in any marketing or sales material.
22.12 Publicity. A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.