1.Introduction

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

Definitions. In the agreement:

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;

agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;

authorised user means you or a user in your employ where you are a juristic person, who has been assigned credentials;

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 means 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;

credentials means a unique user ID and password that has been assigned to an authorised user;

control panel means the section on the website accessible by you through a web browser;

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 means the fees, charges, or purchase consideration that you will pay to us in respect of services we provide under orders;

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;

personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;

services means any services we or related persons provide to you, under orders;

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 means the terms, consisting of:

these customer relationship terms; 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 all third party software owned by a third party but legally licensed to us for use in providing the services;

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 goods or 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.

3.Duration

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 may terminate the relevant service prior to the expiry of the term on 20 business day’s written notice to us. However, we may charge you an early termination fee.

4.Orders

4.1Capacity. 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;

• are authorised to use the credentials required for any account; and and

• will submit true, accurate and correct information to us.

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.

4.2Invitation 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.

4.3Deemed order. You will be deemed to have placed an order in regard to services when you start consuming any services you have requisitioned automatically from the control panel, it being agreed that each click of a button to requisition a service constitutes a billable event.

4.4Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you.

4.5Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any services when we accept your offer.

4.6Time 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.

4.7Orders. 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.

5.Services

5.1Grant of right. We grant you a limited, non-exclusive, non-transferrable, revocable right to use our services in accordance with the terms and the terms of any third party agreement. Any person wishing to use the services contrary to the terms or third party agreement must obtain our prior written consent.

5.2Consent to monitoring. You consent to us monitoring your use of the service for security purposes and in order to ensure that the service is always running and functioning as it should.

5.3Service levels. We will provide the services to you at the service levels.

5.4Third party software. Some software used in our services may be third party software that we will make available to you in accordance with third party software license terms. You agree that the use of the services is subject to these third party software license terms and that they may change from time to time. Please note that there may be provisions in the third party software license agreement that expressly override some of these terms.

6.Online services

6.1Registration. Each authorised user must provide their full legal name, a valid email address, and any other information requested by us to complete the registration process.

6.2Access. Only authorised users may access the service by using the credentials issued to them.

6.3Authorised user obligations. Each authorised user agrees:

• to keep their credentials secure;

• not to provide access to any person other than an authorised user;

• not to interfere with the functionality or proper working of the service;

• not to introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the service; and

• not use the service for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law.

6.4Administrator obligations. The administrator agrees:

• not to use bots or other automated methods to register authorised user accounts;

• to only create one account per email address per authorised user;

• to make a list of all authorised users available to us on request;

• to immediately notify us in writing of any lost credentials by an authorised user;

• to ensure that authorised users who are no longer authorised to use the service do not use the service;

• to notify us of any known breach of our privacy policy;

• to take reasonable measures to ensure that authorised users do not introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the service.

6.5Security. Each authorised user is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has defrauded both us and you, unless you have notified us in writing prior to you acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to an authorised user’s failure to maintain the confidentiality of their credentials.

7.Intellectual property

7.1Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.

7.2Use 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.

7.3Trademarks. 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.

7.4Restrictions. 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.

7.5Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.

8.Confidential information

8.1Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.

8.2The receiving party’s responsibilities. The party that receives confidential information agrees to protect the interests of the party it is from, and will:

• only use it to comply with its responsibilities under this agreement;

• only give the information to any of its employees or agents that need it, and only give as much of it as they need;

• use reasonable security procedures to make sure employees or agents keep the information confidential;

• get promises of confidentiality from those employees or agents who need access to the information;

• not reveal the information to anyone else; and

• not use it for any purpose other than this agreement.

8.3End of this agreement. At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.

8.4Exceptions. These responsibilities will not apply to any information that:

• is lawfully in the public domain (available to the general public) when a party received it;

• lawfully becomes part of the public domain afterwards;

• is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or

• is given to comply with a court order or other legal duty.

8.5Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees or agents.

8.6Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

9.Non-solicitation

No party will, during the currency of any order or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order.

10.Our warranties

10.1Service 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; and

• we will provide the services in accordance with all applicable laws, enactments, and regulations.

10.2General 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; and

• we and our personnel will not knowingly introduce any malicious software into your material or your system.

11.Disclaimer of warranties

11.1Disclaimer. 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 regards 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.

11.2Exclusion of liability. Despite any warranty we give, we will not be liable regards any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.

12.Your warranties

You warrant that:

12.1you 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;

12.2by 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.

13.Fees and payment

13.1Due 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.

13.2Manner of payment. You must make payment in the manner specified.

13.3Late 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.

13.4Interest on overdue amounts. Any amount not paid by Customer on the due date will bear interest for the benefit of Vendor, from the due date until the date Customer pays it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of Vendor’s 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.

13.5Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the agreement.

13.6Withhold payment. You may not withhold payment of any amount due to us for any reason.

13.7Certificate. 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.

13.8Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.

13.9Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.

13.10Reimburse costs. If we suspend the service or remove any goods supplied by us, 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 or re-installing the removed goods.

14.Limitation of liability

14.1Direct 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 Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

14.2Indirect 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.

14.3Exclusions. 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.

14.4We 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.

14.5Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.

14.6Indemnity. 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 by us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property.

14.7Liability. 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.Breach and termination

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 hundred thousand euro, 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.Suspension of service

16.1Immediate suspension. We may immediately suspend your right to use any of the services in any of the following circumstances:

• you attempt a denial of service attack on any of the services;

• you seek to hack or break any security mechanism on any of the services;

• we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;

• you otherwise use the services in a way that disrupts or threatens the services;

• we determine, in our sole discretion, that there is evidence of fraud with respect to your account;

• we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party; or

• we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.

16.2Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

​

17.Termination

17.1Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:

• we discontinue the services;

• we believe providing the services could create an economic or technical burden or material security risk for us;

• termination is necessitated by us having to comply with any applicable law or requests of governmental entities; or

• we determine that your use of the service or the provision of any of the services to you has become impractical or unfeasible for any legal or regulatory reason.

17.2Duties on termination. On termination, cancellation, or expiry of this agreement:

• we will stop providing the services;

• your access rights will cease to exist; and

• we will erase your data, unless we have agreed to provide you with post termination assistance in writing.

17.3Survival. 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.

18.Effect of termination

18.1Amounts 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.

18.2Post termination assistance. Following termination, you may 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.

18.3No 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

18.4Survival. 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.

19.Resolving disputes

19.1Notifying 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).

19.2Negotiation. 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.

19.3Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.

19.4Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under the Netherlands Arbitration Institute latest rules for expedited arbitrations. The arbitration will be held in English in Amsterdam. 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 NAI will appoint the arbitrator.

19.5Agree otherwise in an order. The parties may agree otherwise in an order.

19.6Periods. The parties may agree in writing to change the periods for negotiation or mediation.

19.7Urgent 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).

19.8Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.

20.Notices and domicile

20.1Notices. 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.

20.2Service (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.

20.3Change 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.

20.4Deemed 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.

20.5Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

21.Force majeure

21.1Parties 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.

21.2Party 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.

21.3Right 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.

22.Assignment and subcontracting

22.1No 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 our business or some of our assets.

22.2Exception. 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.

22.3Our 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.

23.Relationship

23.1No 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.

23.2No 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.

24.General

24.1Entire agreement. The agreement is the entire agreement between the parties on the subject.

24.2Changes 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 our 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.

24.3Changes 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 our 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.

24.4Acceptance 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.

24.5Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.

24.6Severability. 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.

24.7Governing law. Dutch law governs this agreement.

24.8Non-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.

24.9Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.

24.10Publicity. A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.