NEXT PLATFORMS (PTY) LTD T/A
FLEXYFORCE (“THE COMPANY”)
TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”)
ARE EFFECTIVE AS OF:
01 JULY 2019 (“EFFECTIVE DATE”)
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS SOFTWARE. YOUR CONTINUED USE OF THE SOFTWARE WHETHER AS A USER (WHICH INCORPORATES A BROWSER) (“A USER”, “YOU” OR “YOUR”) INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS SOFTWARE IF YOU DO NOT ACCEPT THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO YOU UNLESS THE SECTION EXPRESSLY STATES OTHERWISE. THESE TERMS SHALL OPERATE IN ADDITION TO ANY OTHER MORE SPECIFIC TERMS THAT MIGHT APPLY TO A USER. IF THERE EXISTS A CONFLICT BETWEEN THESE TERMS AND THE MORE SPECIFIC TERMS APPLICABLE TO A USER, THE MORE SPECIFIC TERMS SHALL PREVAIL TO THE EXTENT OF SUCH INCONSISTENCY.
1.1. These Terms will apply fully and affect a User’s access of www.flexyforce.com and / or beta.flexyforce.com (“the Software”). By using this Software, a User agrees to accept the Terms contained herein in full.
1.2. Should a User not agree to the Terms contained herein, a User must immediately desist from using this Software.
1.3 The Company is the proprietary owner or authorised reseller / distributor of the Software.
1.4 The Client wishes to licence the Software and for same to be supported in this regard.
1.5 The Company shall licence and support the Software for the Client as well as provide the support services.
In this Terms, unless the context otherwise indicates:
- the singular will include the plural and vice versa;
- the masculine gender will include the feminine gender and vice versa;
- persons will include juristic entities;
- the headings in these Terms are used for the sake of convenience, and will not govern the interpretation of the Terms;
- “days” will mean calendar days unless qualified by the word “business”. A “business day” will be any day other than a Saturday, Sunday or official public holiday as gazetted or declared by the government of the Republic of South Africa. “Business hours” will be the hours between 08h00 and 17h00 on any business day. Any reference to time will be based upon South African standard time being Greenwich Mean Time plus 2 (two) hours;
unless specifically provided, any number of days prescribed will be determined by excluding the first and including the last day. Where the last day falls on a Saturday, Sunday or public holiday, the last day will be the next business day;
- where figures are referred to in numerals and in words, and there is any conflict between the two, the words will prevail, unless the context indicates a contrary intention;
- the rule of construction that this Terms will be interpreted against the Party responsible for the drafting of this Terms, will not apply
- the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples will not be interpreted as limiting the meaning of the general wording preceding it (i.e. the application of the eiusdem generis rule is excluded);
- all amounts in this Terms are exclusive of value-added tax (“VAT”), unless specifically otherwise recorded; and
- unless otherwise agreed between the Parties, any communication required to be in writing in terms of this Terms will only be valid if either written or printed in a paper based form. The provisions of the Electronic Communications and Transactions Act, 25 of 2002 are expressly excluded from this Terms.
“Acceptance Date” shall mean the date upon which the Software is accepted and / or first accessed by the Client.
“Affiliate” will mean any subsidiary or a holding company or a subsidiary of a holding company of the Company or any entity that controls, is controlled by, or is under common control by the Company. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the entity through significant control.
“Terms” will mean the Terms for using the Software.
“Associated Documentation” shall mean the printed and / or electronic materials, such as manuals or guides for users, as may be amended from time to time by the Company, which are relevant to assist or supplement the understanding or application of the
“Companies Act” means the Companies Act, 71 of 2008, as amended from time to time;
“Confidential Information” will mean any information or Data relating to either the Company or Client (the “Disclosing Party”) (whether or not it is marked as confidential, restricted, secret, proprietary or any similar designation). Information or Data is confidential, when looking at the nature or content of the Information or Data, it is identifiable as confidential and/or proprietary to the Disclosing Party or is intended or could reasonably be expected to be confidential and/or proprietary to the Disclosing Party, and includes the proprietary Intellectual Property of the Disclosing Party. The information or Data can be in whatever format, whether recorded or not (and if recorded, whether recorded in writing, on any electronic medium or other recordable format);
“Data” will mean any data, including personal information as defined in the Protection of Personal Information Act, 4 of 2013, and data and personal information as defined in the Electronic Communications and Transactions Act, 25 of 2002, supplied to the Company by the Client or stored, collected, collated, accessed or processed on behalf of the Client by the Company;
Destructive Elements” shall mean any “back door”, “time bomb”, “time lock”, “trojan horse”, “worm”, “drop dead device”, “virus” or other computer software routine or code intended or designed to: (a) permit access to or the use of a computer system by an unauthorised person, or (b) disable, damage, erase, disrupt or impair the normal operation of a computer system; (c) damage, erase or corrupt data, storage media, programmes, equipment or communications or otherwise interfere with operations of a computer system;
“Effective Date” means the date when the Software is first used and / or tested by the Client, as recorded by the Software time stamp.
“Intellectual Property” will include, without limitation, patents, rights to inventions (whether patentable or not), copyright and related rights, moral rights, registered designs, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) or other industrial or intellectual property rights, whether registered or not and whether or not capable of being registered, and any application for any of the aforementioned and renewals or extensions thereof, and all similar or equivalent rights or forms of protection which may exist now or in the future, in any part of the world and owned by the Company.
“IRBA” will mean the Independent Regulatory Board for Auditors
“Law” will mean any law of general application including the common law and any statute, constitution, decree, treaty, regulation, restriction, directive, ordinance, by-law, order, policy or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;
“Losses” will mean all direct losses, liabilities, costs, expenses, fines, penalties, ex gratia payments, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and client, tracing and collection charges, costs of investigation, interest and penalties). This will specifically exclude consequential, indirect and special damages, save as otherwise set out in this Terms;
“Mean Time to Repair” “or “MTTR” shall mean the time which will lapse between the Client placing the fault call and the time when the Software becomes fully operational in terms of these Terms, at least by way of a workaround acceptable to the Client until a permanent fix becomes available;
“Mean Time to Respond” or “MTR” shall mean the time which will lapse between the Client placing the call and the acknowledgement of receipt of the call from the Company;
“Parties” will mean the parties to this Terms, being the Company and the Client, and “Party” will mean either the Company or the Client, as the case may be;
“Regulator” will means any supervisory or government agency, body or authority having regulatory or supervisory authority over the FirstRand Limited group of companies, or over the Services, and “Regulatory” will be interpreted accordingly;
“Services” will mean, but not be limited to, the licencing, delivery, implementation and/or maintenance of the Software, cloud services or software as a service (SaaS), as well as the provision of support services within the borders of South Africa, unless otherwise agreed between the Parties.
“Software” shall mean the software components of Flexyforce.
“Company” will mean Next Platforms (Proprietary) Limited (registration number 2015/134958/07) an entity incorporated under the company Laws of the Republic of South Africa, its Affiliates and permitted assigns.
“Updates” shall mean incremental enhancements, patches, bug fixes and error fixes to the Software that are signified by version number changes to the right of the decimal point. For example, version 4.10, 4.20;
“Upgrades” shall mean versions of the Software that include new major features and significantly improved functionality, and which are signified by version number changes to the left of the decimal point. For example, version 5.0.
“Warranty Period” shall mean a period of 12 (twelve) months, which period shall commence on the Acceptance Date.
4. DURATION AND TERMINATION
- The Terms will commence on the Effective Date and will endure indefinitely against regular payment until terminated, as provided
- The Client will be allowed to terminate the Terms in its entirety at any time, by giving the Company at least 30 (thirty) days’ prior written notice of its intention to terminate.
- The termination of the Services for any reason provided for in this Terms shall in no way affect the licensing provisions and the grant of the licence to use the Software shall continue in full force and effect for the duration of the licence until the termination date.
- If the Terms are terminated by the Client, the Company will immediately return to the Client, all Confidential Information, papers, materials, and other property of the other in its possession at the time of termination. The Company will not have to return Confidential Information, papers, materials, and other property if any of it is needed to carry out the Services. The Company will comply with such a request within 7 (seven) days of receipt.
- The Company will not keep copies of Data, Confidential Information, Intellectual Property and / or material belonging to the Client, unless required to do so by Law.
The Parties agree that the rights afforded to the Client under this Terms may extend to its Affiliates to the extent agreed:
- between the Parties under a Transactional Document signed by them without any prejudice to the Client’s status as a party to the Terms and to enforce it, also constitute a Terms for the benefit of the relevant Client Affiliate; or
- directly between the Company and Client Affiliate under a Transactional Document signed by the Company and the Client Affiliate.
- For any rights afforded to the Client under this Terms which extend to its Affiliates, the Client will always remain jointly and severally liable with the applicable Client Affiliate for all of the obligations of the applicable Client Affiliate.
- For any rights afforded to the Client under this Terms which may extend to its Affiliates, a severable and independent Terms will result between the Company and that Client Affiliate. The independent Terms will be governed by the Terms, read with the specific terms set out in the relevant Transactional Document, setting out the specific Services to be provided by the Company directly to the Client Affiliate.
Each independent Terms will be a separate and divisible relationship between the Company and the relevant Client Affiliate on the basis that:
- termination of the relevant Transactional Document will not affect the continuation or enforceability of this Terms or any Transactional Document concluded between the Company and the Client and/or any other Client Affiliate;
- any termination of these Terms will not affect the continuation or enforceability of the independent Terms between the Company and the Client Affiliate. The active Transactional Document will remain active for the duration of the Transactional Document subject to the rights of termination of the Company and the Client Affiliate; and
- the Client Affiliate will remain solely liable for any obligations agreed to or liability incurred in terms of the Transactional Document and Terms. The Company will be required to provide the Services to the Client Affiliate in terms of the Transactional Document read together with the Terms.
6. GRANT OF THE LICENCE
The Company grants to the Client, the licence to use the Software based on the conditions set out in the Terms.
The Client shall not without the consent of the Company, except to the extent permitted by law, modify, reverse assemble, decompile or reverse engineer the Software or allow any third party to use or access the Software (directly or indirectly), save and except that the Client may modify, decompile or reverse engineer in a test bed environment.
The Client shall be entitled to use the Software in combination with any other hardware and / or software in the Client’s possession at any point in time.
7. ACCEPTANCE OF THE SOFTWARE
The Company shall deliver the Software to the Client or through electronic transmission via the internet, on the date, as agreed to between the Parties. Acceptance of the Software by the Client shall be evidenced when the Software is accessible to the Client via the internet and / or within 24 hours of issuing the Client their unique username and password for accessing the system.
The Client shall perform acceptance tests to determine whether the Software performs in accordance with expectations. The acceptance tests shall commence within 7 (seven) days of delivery of the Software and shall endure for a period of 30 (thirty) days, or such other period as may be agreed upon in writing between the Parties hereto. The Client will advise the Company when it commences with the acceptance tests and the Company may, at its election, attend.
In the event that the acceptance tests establish that the Software does not perform in accordance with expectations, the Client will within 5 (five) business days notify the Company, in writing, and the Company shall within 10 (ten) business days of receipt of such notice, or such longer period as may be agreed between the Parties, modify or improve the Software delivered to the Client, at the Company’s sole cost and expense, to ensure that the Software performs in accordance with expectations. The Client shall, thereafter, conduct second Acceptance Tests for a period of 30 (thirty) days.
In the event that the Software fails to perform in accordance with expectations after the second acceptance tests, then the Client may elect, in its sole discretion, to either repeat the procedure outlined above, or it may terminate the Terms of the Software and receive a reimbursement of all refundable amounts, as agreed between the Parties at the beginning of the engagement, paid by it to the Company with 7 (seven) days.
8. THE SERVICES
The Company agrees to provide the Services as described in this clause 8.
The Company will provide the Services to the Client at the Client’s chosen location(s).
The Company will be obliged to ensure that the Services provided will always be of a standard corresponding with the instructions and requirements of the Client.
When providing the Services to the Client on their premises, the Company will adhere to:
- the Client’s policies, code of conduct, rules, procedures and regulations, including specifically security regulations and access to the Client’s information resources, networks and systems, in force;
- the OHS Act, and specifically section 37 (1) of the OHS Act, relating to the acts or omissions of the Company’s employees which would be an offence for the employer of such employee.
- Without limitation, if the Client grants the Company permission to remotely access the Client’s infrastructure and / or network, the Company will adhere to the Client’s remote access policy, provided that unless otherwise expressly stated by the Client in writing, the Company will have “read only” access to the Client’s infrastructure and/or network.
- The Parties will act as independent contracting parties under this Terms. Neither Party will be deemed to be an agent or representative of the other Party, or Parties to a joint venture or as partners for any purpose.
- The Company will be the exclusive provider of the Flexyforce SaaS to the Client. Any specific services which the Client requests from the Company will be set out in a Transactional Document, the terms of which will be subject to this Terms.
- The Company operates the Flexyforce Software within the infrastructure of Google Cloud and Amazon Web Services located in the European Union and, as such, the Flexyforce software will be available to the Client at all times, subject to the Client having access to an internet connection with sufficient bandwidth availability.
8.1 Maintenance Service
The Company agrees to provide the Client with maintenance Services for the Software.
The Company shall give notice, by phone or in writing, to the Client of any Updates and/or Upgrades to the Software from time to time, no later than 2 (two) business days after such Updates and/or Upgrades become available to the Company.
8.2 Professional Services
The Company agrees to provide support services for the Software to the Client, as agreed, from time to time.
9. CONSIDERATION AND PAYMENT
All fees and charges will be paid by the Client to the Company within 7 (seven) days from the date of receipt of an invoice and / or statement of account.
The Company reserves the right to charge settlement fees according to Prescribed Rate of Interest Act:
- When payment is received from the Client outside the above mentioned payment terms; and
- When the Company pays service providers within 7 days upon request of the Client before the Client has settled their invoice/s within the agreed terms (i.e. prepayment by the Company).
The Company will be entitled to submit original tax invoices and statements of account by electronic mail in uneditable (PDF) format.
All invoices will:
- Specify the Services rendered and / or being charged and the costing thereof;
- comply with the Value-Added Tax Act, 89 of 1991; and
- be made out in the name of the Client.
All payments to be made by the Client to the Company will be made in accordance with the terms and conditions contained in the Terms.
The Client will not be allowed to withhold, defer, and make any deduction from, obtain deferment of judgment for, or set off against any payment due to the Company in terms of this Terms.
If any undisputed sum payable under this Terms is not paid within the payment period set out above, the Company will give the Client a default notice informing it of its non-payment and requesting that payment is made within 14 (fourteen) days from the date of the default notice (the “Default Notice Period”).
If the Client still fails to pay the undisputed sum before the expiry of the Default Notice Period, the Company will be allowed (without prejudice to any other rights and remedies that the Company may have) to charge the Client interest on the outstanding sum. Interest may be charged at the maximum rate allowed by Law calculated from the date of expiration of the Default Notice Period to the date of actual payment (both dates inclusive).
If the Client disputes any fees, charges or an invoice (in whole or in part), the Client will notify the Company as soon as the Client becomes aware of the disputed amount(s). The notification will set out the disputed invoice as well as the amount(s) disputed. The Client will not be allowed to withhold payment of the disputed amount(s) until the dispute is resolved.
If the Client still fails to pay the disputed sum before the expiry of the Default Notice Period, the Company will be allowed (without prejudice to any other rights and remedies that the Company may have) to charge the Client interest on the outstanding sum. Interest may be charged at the maximum rate allowed by Law calculated from the date of expiration of the Default Notice Period to the date of actual payment (both dates inclusive).
10. PRICE REVIEW
If the Company wants to apply for an increase in its fees and charges in line with this Terms:
- It will be limited to once a year (on the anniversary of the Commencement date of the Client engagement); and
- The increase will be communicated to the Client in writing at least 30 (thirty) days before the effective date.
The Company warrants that:
- The Software furnished hereunder shall be free from significant programming errors and from significant defects in workmanship and materials and shall operate and conform in all material respects to the performance capabilities, specifications, functions and other descriptions and standards applicable;
- It has taken all reasonable and necessary steps to ensure that the Software will be and remain free of Destructive Elements;
- It is authorised to licence the Software provided to the Client under these Terms;
- It has the necessary skills, experience, expertise and resources to carry out the Services, and the Services will be carried out with due care, skill and diligence;
- The Services will be performed in a timely and professional manner in accordance with industry best practice;
- It is authorised to enter into this Terms and perform the Services which will not infringe and / or violate the rights of any third party;
- It will ensure that while any of its employees are at the Client’s premises they will not use the premises or any part of it for any purpose other than the performance of the Services;
- It will obtain and maintain, locally and internationally, all licences and permits to ensure that the Company functions as a lawful business entity. The Company must conform to national and (where applicable) international statutes, rules, regulations and other applicable requirements at all times;
Third Party Intellectual Property Claims
The Client will as soon as possible notify the Company, in writing, of any proceedings instituted by a third-party against the Client about any alleged infringement referred to in this clause. Any delay by the Client in giving the notice will not limit the Company’s obligations under the Terms, except for any losses suffered due to the delay.
The Company will immediately replace the Software and / or Services with compatible, functionally equivalent and non-infringing product and related documentation and/or service;
make the necessary modification/s to the Software and/or Service to avoid the infringement;
if there are no other alternatives possible even after the Company’s best efforts, the Company will return a pro rata portion of the fees and charges to the Client, as agreed between the Parties.
The Company hereby indemnifies and holds the Client harmless from and against any and all claims against the Client in relation to the provision of the Services by the Company, for loss and/or damages of whatsoever nature, arising or occurring as a result of bodily injuries or death;
13. SOFTWARE OWNER GUARANTEE
The Company and / or its affiliates are the duly authorised owner of the Software. If under dispute, the Company undertakes to obtain and forward to the Client the following guarantees in writing from the Software Owner in favour of the Client within 7 (seven) days:
- In the event that the Company fails or is unable to perform any of its obligations in terms of this Terms pursuant to any termination thereof or for any other reason whatsoever; or
- In the event that the distribution or any such similar Terms(s) between the Software Owner and the Company terminates for any reason whatsoever, then the Software Owner will comply with and perform, as the case may be, all of the Company’s obligations in line of the Terms, with immediate effect.
The Software Owner shall further succeed to all the rights and benefits of the Company under this Terms, including but not limited to the right to receive fees for so long as the Software Owner continues to perform the Company’s obligations thereunder fully.
14. LIMITATION OF LIABILITY
To the extent permitted by law, each Party will be liable for Losses arising out of or relating to its performance or failure to perform under these Terms.
The above limitation will not:
- Apply in any way to the Company’s liability to the Client arising from or in relation to a breach of warranty, any indemnity, any confidentiality obligation, a data protection obligation or any Intellectual Property rights contained in this Terms, including a breach of any of the following clauses – Warranties, Indemnification, Confidentiality, Data Protection) and / or Intellectual Property Rights;
Each Party (the “Receiving Party”) undertakes, during the operation, and after termination of this Terms, to keep confidential all Confidential Information.
The Receiving Party agrees to only use the Confidential Information to provide the Services and not to disclose or use any Confidential Information for its own or anyone else’s benefit.
The Company will not release or disclose Confidential Information to any other party, unless required by Law.
If the Receiving Party is uncertain about whether any information is to be treated as Confidential Information, it will be obliged to treat it as such.
Neither Party will use the Intellectual Property and/or Confidential Information of the other Party for any purpose, other than the performance of the Services, without having secured the prior written approval of the other Party.
The obligations of confidentiality placed on the Receiving Party in terms of this clause will not apply in respect of any information or data which the Receiving Party can show:
- At the time of disclosure, is or has become generally available and known by the public and / or any competitors of the Disclosing Party in a manner other than by the negligence or default of the Receiving Party or by breach of this Terms by the Receiving Party;
- Has lawfully become known by or come into the possession of the Receiving Party on a non-confidential basis from a source other than the Disclosing Party having the legal right to disclose same:
- Provided that such knowledge or possession is evidenced by the written records of the Receiving Party; or
- Is disclosed pursuant to a requirement or request by operation of Law, regulation or court order, only to the extent of compliance with such requirement or request, or
- To have been developed for the Receiving Party at any time independently of any information disclosed by the Disclosing Party; or
- Is disclosed by the Receiving Party with the prior written approval of the authorised representative of the Disclosing Party,
- The onus will at all times rest on the Receiving Party to establish that such information falls within the exclusions set out in clauses; and
- Such information will not be deemed to be within the foregoing exclusions merely because the information is embraced by more general information in the public domain or in the Receiving Party’s possession.
If the Receiving Party is required to disclose Confidential Information as contemplated in this clause, the Receiving Party will:
- As soon as possible advise the Client thereof in writing prior to making any disclosure, provided that there is no restriction on the Company to inform the Client;
- Take steps to limit any disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;
- Afford the Client an opportunity to intervene in the proceeding, if possible, and comply with the Client’s requests as to the manner and extent of any such disclosure.
- The Parties’ obligations of confidentiality under these Terms will survive the termination of this Terms.
16. DATA PROTECTION
The Company acknowledges that, it may be exposed to the Data of the Client’s employees, service providers, customers and / or clients, whilst providing the Services.
All Data provided by the Client to the Company, or to which the Company may be exposed, will constitute Confidential Information and, where applicable, Intellectual Property belonging to the Client.
The Company warrants in favour of the Client that it will at all times strictly comply with all applicable Laws and with all the provisions and requirements of any of the Client’s Data protection policies and procedures which may be in force from time to time.
The Company warrants and undertakes that it will not do any of the following: copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use Data for any purpose other than with the express prior written consent of the Client and/or the Data owner (where applicable), and to the extent necessary to provide the Services to the Client.
The Company warrants that it will immediately inform the Client in writing, if any Data it has access to is compromised. The Company undertakes to immediately inform the Client in writing as to how it will manage such compromise and what steps will be taken, at the Company’s cost, to rectify the situation to the satisfaction of the Client.
The Company warrants that it will ensure that all its systems and operations which it uses to provide the Services, including all systems on which Data is: copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the Services, will at all times be of a minimum standard required by Law and be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of Data.
The Company warrants that it will not, without the written consent of and on the terms approved by the Client, do anything, or omit to do anything that would cause Data to be transferred to and / or stored in a country other than the Republic of South Africa and the European Union.
The Company’s obligations under this clause 16 will survive the termination of this Terms.
17. INTELLECTUAL PROPERTY RIGHTS
Subject to the remaining provisions of this clause, all Intellectual Property owned by either Party (whether before or after the Effective Date) will remain the sole and exclusive property of that Party.
For the Software:
All Intellectual Property in the Software and all Updates and Upgrades shall at all times remain vested in the Company, and the Client acknowledges that it shall not obtain any right, title or interest in or to the Software, other than as granted to it in terms of this Terms or otherwise agreed to in writing.
The Client shall be entitled to:
- Develop interfaces between the Software and any other applications within the Client’s environment; and / or
- Make modifications or develop applications which operate in conjunction with the Software without having modified the source code of the Software. All Intellectual Property in and to the interfaces, modifications and/or applications referred to in this clause shall, however, vest in the Company.
- Upon termination of these Terms for any reason whatsoever, the Parties agree that the Intellectual Property rights which have accrued to the Company in terms of this Terms, will remain vested in the Company and that, notwithstanding such termination, the Company will have full rights in or to such Intellectual Property rights.
- The Parties’ obligations in respect of the Intellectual Property under this Terms will survive the termination of this Terms.
18. CHANGE CONTROL
From time to time during the term of this Terms, either Party may propose changes in or additions to the Services. No such changes or additions shall be effective or binding on the Parties unless a written Change Order is signed by authorised representatives of both Parties. All such Change Orders shall be implemented in accordance with the Change Order Procedures.
If the Client desires to propose a change or addition referred to in clause, the Client shall deliver a written notice to the Company, describing the proposal. The Company shall respond to such proposal within 7 (seven) days of receipt of the written notice by preparing at the Company’s expense, and delivering to the Client, a written proposal (“Change Order Proposal“), indicating:
- The effect of the proposal, if any, on the amounts payable by the Client and the basis on which such effect was calculated (including, if requested by the Client, comparisons with the existing charges for similar services, if any):
- the effect of the proposal, if any, on service levels with a full explanation reasonably acceptable to the Client;
- the anticipated impact on resources of the Company with specific reference to capacity, risk and security;
- the anticipated impact on planned capital expenditure for the provision of the Services; and
- the anticipated time schedule for implementing the proposal, including details of the exact deliverables in terms of the proposal and milestone dates by which, if a Change Order results, weekly progress reports must be furnished by the Company.
Any discussions or communications required to implement this clause shall not bind the Parties and only a signed Change Order shall be binding.
If the Company desires to propose a change or addition referred to in the clause above , it may do so by preparing at its expense and delivering a Change Order Proposal to the Client.
A Change Order Proposal, once submitted as aforesaid, shall constitute an offer by the Company to implement the proposal described therein on the terms set out therein. If the Company’s offer is not accepted by the Client in writing within 30 (thirty) days from the date of the Company’s proposal, the Company shall be entitled to revoke its offer. The Client shall not be obliged to accept the proposal.
If the Client elects to accept the offer set out in the Change Order Proposal, as evidenced by the written acceptance of the Client, the Change Order Proposal shall become a Change Order, any changes in or additions to the Services described in the Change Order Proposal shall thereafter be “Services”.
Any other changes described in the Change Order Proposal shall automatically amend the applicable Transactional Document and/or other aspect of this Terms and the Parties shall make any further modifications to the applicable Transactional Document and/or other aspect of this Terms required to reflect the Change Order.
All Change Orders shall be implemented pursuant to the procedures set out in this clause.
19. DISPUTE RESOLUTION
Any dispute which arises will be referred to a committee consisting of 2 (two) appointed senior members each from the Client and Company, who will use their best efforts to resolve a dispute within 14 (fourteen) days of the dispute being referred to them. Such period may be extended by the Parties in writing. The committee will meet at the premises agreed to by the members, failing which they will meet at the local offices of the Client or Company, failing they will meet by conference or video call. The committee members will act as experts and not as arbiters.
If the committee is unable to resolve a dispute in accordance with this clause, then the dispute may be submitted to and decided by arbitration or litigation. Neither Party will be entitled to refer the matter to arbitration or litigation without first attempting to resolve the dispute.
20. ARBITRATION / LITIGATION
Subject to clause 19, any dispute connected with this Terms, including the validity, interpretation, implementation, execution, rectification, and/or termination of this Terms, may, at the instance of the Party seeking relief be decided either by way of arbitration first and then litigation as a last resort.
In the case of arbitration:
- Unless otherwise agreed to by the Client, the arbitration will take place in Cape Town in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA“); and
- The arbitrator, as agreed upon by the Parties, will be, if the question in issue is:
- Primarily an accounting matter, an independent accountant with not less than 10 (ten) years’ experience;
- The arbitrator, as agreed upon by the Parties, will be, if the question in issue is:
- Primarily a legal matter, a practising senior counsel with no less than 10 (ten) years’ standing; or
- Any other matter, an independent person, with expertise relevant to the dispute.
- If the Parties cannot agree upon a particular arbitrator in terms of the above requirements within 7 (seven) business days after the arbitration has been demanded, as the case may be, will be made by the President of the Law Society of the Cape of Good Hope (or its successor) or his or her nominee, within 7 (seven) days after the Parties have so failed to agree.
- In the event that the arbitration is not held in the Republic of South Africa, the head of the organisation governing the legal profession in the country of arbitration will select an arbitrator.
- The Parties agree that the decisions in these arbitration proceedings:
- Will be binding on them, subject only to review;
- Will be carried into effect;
- May be made an order of any Court of competent jurisdiction; and
- Will not exclude the Parties’ right to urgent relief.
- Neither Party may appeal the decision of the arbitrator(s).
- No Party will be prevented or prohibited from applying to the appropriate court for urgent relief pending the outcome of the arbitration proceedings.
- Any arbitration in terms of this clause will be conducted in camera and the Parties will treat it as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of all the disputants.
In the case of litigation, each Party consents and submits to the Western Cape High Court having jurisdiction in respect of all proceedings and disputes arising from or connected with this Terms, notwithstanding that the amount claimed or the value of the matter in dispute falls outside such High Court jurisdiction.
If either Party to this Terms (the “Defaulting Party”) commits a breach of any of the terms and conditions of this Terms and remains in default for a period of 14 (fourteen) days after receipt by it of a written notice from the other Party calling for such breach to be remedied, then the aggrieved Party will be entitled, without prejudice, and in addition to any other rights it may have hereunder or in Law, to terminate this Terms immediately by written notice to the Defaulting Party.
22. FORCE MAJEURE
If a Party (the “Invoking Party“) is prevented from fulfilling any of its obligations in terms of this Terms due to any Act of God, war, fire, flood, legislation, insurrection, sanctions, trade embargo or any economic or other cause beyond the reasonable control of the Invoking Party (“force majeure“), then the Invoking Party will immediately give written notice to the other Party:
- Specifying the cause and anticipated duration of the force majeure event; and
- Promptly, upon termination of the force majeure event, inform the Client that the force majeure has terminated.
- Performance of any obligations will be suspended from the date on which notice of the force majeure is given to the other Party until the date on which notice is given of the termination of the force majeure (the “Suspension Period“), subject always to the remaining provisions of this clause.
- The Invoking Party will not be liable for any delay or failure in the performance of any obligation in terms of this Terms, or loss or damage due to or resulting from the force majeure during the Suspension Period provided that:
- the Invoking Party uses and continues to use its best efforts to perform its obligations; and
- if the force majeure continues for more than 60 (sixty) consecutive days, then the other Party will be entitled to terminate this Terms on the expiry of such period. The other Party will not be entitled to claim damages against the Invoking Party as a result of the delay or failure in the performance of any obligations, due to or resulting from the force majeure. If the Company provides the Client with fixed term Services, paid for in advance by the Client, then the Company will refund the portion of the fees paid, as from the date of the notice of the force majeure being given by the Company.
- Without prejudice to any other rights of the Client, where the Company is the Invoking Party and gives written notice to the Client that it is unable to provide the Services due to the force majeure, the Client will be entitled to make arrangements for the provision of those Services or that part of the Services that the Company is unable to perform during the period that the force majeure persists.
- If the Services:
- Cannot be performed by the Company, the Client’s payment set out in the relevant Transactional Document will be suspended until such time as performance is resumed, provided that any fees and charges incurred prior to the force majeure are payable; or
- Are performed in part by the Company, the fees payable by the Client as set out in the relevant Transactional Document will be appropriately reduced to take into account the extent and period of the Company’s inability to provide the full Services to the Client; or
- Are fixed term Services, paid for in advance by the Client, then the Company will refund the portion of the fees paid for the Services that the Company was unable to provide during the Suspension Period.
23. ADDRESSES FOR SERVICE
Each Party hereby selects as its domicilium citandi et executandi the address set out opposite its name below, at which all notices and legal processes must be delivered to it for the purposes of this Terms:
Client: As provided by the Client.
Company: Black River Office Park North
2 Fir Street, Observatory
Cape Town, South Africa
E-mail: [email protected]
Any legal and / or termination and / or breach notice will be valid and effective only if in writing and delivered by hand and electronic mail message (“e-mail”) to the address as set out above by a party authorised to do so.
Any termination and / or breach notice sent by email to a Party using its chosen email address will be regarded as having been received by the recipient when the complete data message enters the information system designated and used for that purpose by the recipient, and is capable of being retrieved and processed by the recipient, or upon receipt by the sender, of an automated acknowledgement of receipt by the recipient or any conduct of the recipient reasonably sufficient to indicate to the sender that the email has been received.
Any termination notice sent by email to a Party will be deemed, unless the contrary is proved, to have been received by the recipient, 24 (twenty-four) hours after the email was sent.
If either Party changes its domicilium address, it will notify the other Party in writing of the change.
Notwithstanding anything to the contrary contained in this Terms, a notice actually received by either Party from the other Party and proven, as such, will be adequate written notice or communication to such Party, despite the terms and conditions of this clause were not strictly complied with.
24. CESSION AND ASSIGNMENT
The Client acknowledges and agrees that the Company will be entitled to cede, assign, transfer or make over this Terms to any of its Affiliates.
Except as provided for in the clause above, no part of this Terms may be ceded, assigned, transferred by the Client without having secured the prior written consent of the Company.
25. GOVERNING LAW
This Terms will be governed by and construed under and in accordance with the Laws of the Republic of South Africa.
These Terms constitutes the entire Terms between the Parties in relation to its subject matter and supersedes all prior Terms and/or proposals, whether oral and/or written, between the Parties on this subject. Unless otherwise agreed, the provisions set out in this clause will apply to any active Transactional Document still in place under any preceding Terms.
No Party will have any claim or right of action arising from any undertaking or representation not included in this Terms whether tacit or implied.
No failure or delay by a Party in exercising any right, power or privilege under this Terms or delay by a Party to enforce a provision of the Terms will be deemed to be a waiver thereof. Any waiver of a subsequent breach will not nullify the effectiveness of that provision. No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Terms will be of any force or effect unless reduced to writing and signed by both Parties. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
No Terms to amend or cancel this Terms or any part thereof, including this clause, will be effective unless reduced to writing and signed by both Parties. For this purpose, ‘writing’ will not include a data message as contemplated in the Electronic Communications and Transactions Act, 25 of 2002.
Any invalidity, in whole or in part, of any provision of this Terms will not affect the validity of any other of its provisions, and such invalid provision will be severed from the Terms.
Any provision of this Terms which contemplates performance or observance after any termination or expiration of this Terms will survive and continue in full force and effect, notwithstanding that the clause itself does not provide for such survival.
This Terms will be binding and enforceable by the trustees, permitted assigns liquidators or other legal successors of the Parties.
This Terms may be executed in counterparts, each of which will be deemed to be an original and which together will constitute one and the same Terms.
An electronically reproduced copy or image of this Terms will be deemed as an original and may be submitted in any action or proceeding as competent evidence of the execution, terms and existence hereof.
1. CLOUD SERVICES
- This Annexure A – Cloud Services will form part of the Terms and will govern all cloud-based / SaaS services accordingly.
- This Annexure A sets out the terms applicable to provision of any cloud-based services, which, for clarity, includes any computing services provided over the internet by or on behalf of the Company to the Client (the “Cloud Services”). For clarity, the Cloud Services shall be deemed to be included in the definition of ”Services” under the Terms.
- In the event of any conflict between this Annexure A and the Client’s cloud policy(ies) and/or the decision(s) of the Client’s committee(s), then in such event the Client’s cloud policy(ies) and/or the decision(s) of the Client’s committee(s) will take precedence over this Annexure A.
Other than the terms defined below, any capitalised terms used in this Annexure A shall bear the meaning assigned to them in the Terms:
2.1 ”API” means the application programming interface consisting of various subroutine definitions, protocols, and tools for building computing software and applications, facilitating the electronic processing of data commands between information systems;
2.2 ”Client Data” means Data as defined under the Terms together with all information, data and content which is either (a) provided by or on behalf of the Client to the Company when accessing, using or receiving the Cloud Services or otherwise in connection with the Terms; (b) uploaded to the System by or on behalf of the Client; (c) related, developed or generated by the or on behalf of the Client while accessing, using or receiving the Cloud Services or otherwise in connection with the Terms; (d) generated specifically and solely for (i) the performance of the Cloud Services for the benefit of the Client; or (ii) access by or on behalf of the Client to the Cloud Services; and/or (e) derived and/or generated from, or based on, (in whole or in part) any of the foregoing;
2.3 ”Content” means any and all content which is not Client Data and which is made available by the Company on or through the System or the Cloud Services;
2.4 ”Data Protection Laws” means any applicable Laws relating to the processing, privacy and/or use of Client Data, as applicable to either Party or the Cloud Services, including (a) the EU General Data Protection Regulation EU 2016/679 (”GDPR”); (b) the Protection of Personal Information Act, 2013; and (c) all guidance, guidelines, codes of practice and codes of conduct issued by any relevant Regulator having regulatory or supervisory authority over the Services relating thereto;
2.5 ”Documentation” means the documents (in whatever media) provided or made available to the Client to facilitate the use of the System or the Cloud Services;
2.6 ”Exit Assistance” means the provision of all reasonable information and assistance by the Company to the Client to enable the Client or a third-party designated by the Client to take over the Company’s obligations in the event of termination or expiration of the Cloud Services, the Terms or any Transactional Document for any reason;
2.7 ”Hosting Environment” means any networks and network devices, servers, server hardware, storage systems, computer systems, file systems, print systems, applications, software or software components, database management systems and related systems, used by the Company to perform the Cloud Services;
2.8 ”Maintenance and Support Services” has the meaning given to it in clause 4.1; and
2.9 ”System” means the systems (including all hardware, equipment, software, peripherals and communications networks) owned, controlled, operated and/or used by the Company to supply the Cloud Services (but excluding all systems owned or made available by the Client or the Client’s third-party Companies).
3. Performance and use of the cloud Services
3.1 The Company will perform the Cloud Services in accordance with the terms of the Terms generally, Annexure A – Cloud Services specifically and in line with ”Best Practice” (being the highest degree of professionalism, skill, diligence, prudence and foresight which would be expected from an internationally recognised and market leading company engaged in the same type of activity under the same or similar circumstances and which is best in class).
3.2 The Company shall perform the Cloud Services in accordance with all service levels specified in the relevant Transactional Document. In the event that the Company fails to meet the service levels, the Client shall, in addition to and without limiting any other remedies of the Client, whether under the Terms or otherwise, be entitled to the service level credits (where applicable) as may be agreed under a Transactional Document. Without prejudice to any other rights or remedies of the Client, the Company shall notify the Client immediately on becoming aware of any anticipated, likely or actual failure to meet any service level and of the steps that the Company will take or has already taken to prevent and/or remedy the failure.
3.3 The relevant Transactional Document must describe the following in detail:
3.3.1 the Cloud Service provided to the Client;
3.3.3 the service levels applicable to the Cloud Service; and
3.3.4 the Hosting Environment from which the Cloud Service shall operate.
3.4 In the absence of any conflicting terms under the Transactional Document:
3.4.1 the scope of the Cloud Services will not be limited by, nor will the agreed fees increase in any way, due to (i) the number of users; (ii) the number or volume of transactions; (iii) the number of interfaces; (iv) the equipment on which the Cloud Service may be used or from which it may be accessed from time to time, including, without limitation, the number, size or specification of CPUs; or (v) the location of equipment on which the Cloud Service may be used or from which it may be accessed;
3.4.2 the Client gives no guarantees and accepts no liability for the volume of Cloud Services which may be ordered by the Client from the Company, with any indication of volumes being estimates only; and
3.4.3 the agreed fees shall be all inclusive for all software, hardware, hosting, Maintenance Services and Support Services (as defined in clause 4 below);
3.5 The Company grants the Client and its authorised users access to the Cloud Services throughout the term of the Transactional Document. Notwithstanding anything to the contrary in the Terms or the Transactional Document, the Client retains the right to use the Cloud Services to access and retrieve all or any part of the Client Data at any time during the term of the Transactional Document and for a period of as required by the Client following the expiry or termination thereof.
3.5.1 Each Party shall appoint a contact person under the Transaction Document who will be the primary contact for the day-to-day management of the Cloud Services. The Client shall be entitled to request, and the Company shall promptly comply with any request, to remove and replace the Company’s primary contact.
4. SERVICE ENVIRONMENT
4.1 The Company shall provide the Cloud Services to the Client through its own Hosting Environment. The Company shall ensure that the Hosting Environment complies fully with Best Practice, the Client’s requirements therefor and policies relating thereto.
4.2 To the extent that the Company wishes to make use of a third-party’s Hosting Environment, this shall be subject to the Client’s prior written approval and the relevant third-party’s compliance with this Annexure A – Cloud Services.
4.3 Where the Client has approved any such use, the Company shall, notwithstanding such approval, at all times be completely responsible, and have prime liability, for the actions and/or omissions of such third-party as though the Company was itself hosting such environment and shall ensure, and warrants that such Hosting Environment shall at all times adhere to Best Practice, together with the standards and obligations agreed between the Parties. The Company shall immediately bring to the Client’s attention any changes or potential changes that have occurred or are expected to be made in respect of the Cloud Services (including within the Hosting Environment) or the arrangements (or part thereof) between the Company and its third-party providing the Hosting Environment. Should the Client, in its sole discretion, consider such change/s to be material, the Client may terminate the Terms or any part thereof immediately with no consequence and without any liability to the Company, provided that any such termination will be in addition and without limitation to any other available rights or remedies available to the Client, whether under the Terms or otherwise.
4.4 The Company shall ensure that the third-party and the third-party Hosting Environment complies with Best Practice, the Client’s requirements for the Cloud Services, any applicable Client policies and this Annexure A – Cloud Services and fully indemnifies the Client against any breach of such requirements and this Annexure A – Cloud Services by it and/or such third-party.
5. Maintenance and Support Services
5.1 The Company undertakes to provide the maintenance and support specified in this clause and the applicable Transactional Document (“Maintenance and Support Services”) for the Cloud Services provided thereunder. The Maintenance and Support Services will be subject to any service levels the Parties agree to under any relevant Transactional Document.
5.2 As part of the Maintenance and Support Services to the Client, the Company agrees that it will apply continuous effort and resources to correct and repair any failure, malfunction, defect, problem or non-conformity identified by the Client or otherwise, brought to the Company’s attention to ensure the Cloud Services remain up to date, operable, functional and available in accordance with the Client’s requirements. Where the Cloud Services are integrated with any Client system, as agreed pursuant to a Transaction Document, any installation of an upgrade shall be at no additional cost.
5.3 The Company shall ensure that any Maintenance and Support Services cause minimum disruption to the Client and that any scheduled maintenance does not endure any longer than as directed by the Client by the in writing. the Company will ensure that any Maintenance and Support Services are undertaken during periods which will have the least impact to the Client and any scheduled maintenance will be subject to the Client’s written approval.
5.4 The Company shall provide the Maintenance and Support Services and any and all technical support required by the Client in respect of the Cloud Services throughout the term of any relevant Transactional Document and shall not declare any aspect of the Cloud Services to be end of life or end of support without the prior written consent of the Client.
6. CHANGES TO THE SERVICES
6.1 Any change to the Cloud Services and/or Maintenance and Support Services will be communicated to the Client well in advance.
6.2 In the event the Company stops providing or unbundled any modules, features or functionality from the Cloud Services (or any party thereof) and subsequently offers those features or functionality in a new or different product (whether directly or indirectly or through a third party), then the Cloud Services provided under the applicable Transaction Document will be deemed to include the relevant portion of or the entire (as necessary to ensure the continuance of all functionality originally provided to the Client) new, different, bundled or unbundled products, as applicable, without payment of any additional fees by the Client.
7. COOPERATION WITH THIRD-PARTIES
7.1 The Company shall cooperate with, and provide reasonable assistance to the Client in connection with Services or Systems that interface or operate with the Cloud Services and such co-operation and assistance shall include:
7.1.1 providing such information about the interface requirements for the System and/or the Cloud Services, including any APIs, and about the manner in which the Cloud Services are provided as is reasonably necessary for any such third‑party Companies to interface or operate with, or provide their services to the Client, including any changes to any such information as a result of any change to the Cloud Services;
7.1.2 making information available to, or accepting information from, such third-party Companies as requested by the Client from time to time; and
7.1.3 participating in any joint testing initiatives, as and when required, as agreed between the Company and the Client.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The provisions of this clause 7 shall apply in addition to and shall not limit any Intellectual Property rights and/or provisions contained in the Terms.
8.2 Unless otherwise agreed in a Transactional Document, the Company hereby grants the Client a licence to access and use the System, the Cloud Services, the Content and Documentation, and to permit such use and access by the Client’s authorised users.
8.3 All rights, title and interest in and to Intellectual Property arising in connection with the Client Data shall remain with the Client, irrespective of whether commissioned, created, invented or authored by or on behalf of the Company (in which event the Company hereby agrees to the assignment of such rights to the Client with full title guarantee) or by or on behalf of the Client and nothing in this Terms shall operate so as to assign or transfer any Intellectual Property rights in and to any Client Data to the Company.
8.4 The Client hereby grants to the Company a non-exclusive, revocable, worldwide, royalty free, non-transferable and non-sublicensable licence to use the Client Data solely and to the extent necessary to provide the Cloud Services and otherwise perform its obligations in accordance with the terms of this Terms. The Company shall not have any right to use the Client Data whether in raw form, aggregated or anonymised.
8.5 In addition to and without limiting any other indemnity under the Terms, the Company agrees to fully indemnify the Client and/or any of the Client’s authorised users against any Losses incurred as a result of or in connection with any action demand or claim:
8.5.1 that the Client or any of its authorised users’ use or receipt of or access to the System, the Cloud Services, the Content, the Documentation or any other resources provided by the Company to the Client or to any of the Client’s authorised users infringes the Intellectual Property Rights of any third-party; or
8.5.2 based upon the Company’s performance of the Cloud Services being an infringement of third-party Intellectual Property rights.
9. Client Data
9.1 The provisions under this clause 8 apply in addition and without limitation to (i) any provision of the Terms relating to Data and/or Data Protection; and (ii) the Company’s obligations under any applicable Laws, including Data Protection Laws.
9.2 During the term of the Terms and any applicable Transactional Document, the Company shall compile and maintain a record of each geographical region where it will store and process Client Data, and promptly provide such information to the Client on its written request.
9.3 the Company shall deal promptly and properly with all enquiries from the Client regarding any processing of Client Data by the Company and promptly comply with any request from the Client requiring the Company to amend, transfer, remove or return Client Data to the Client in a format prescribed by the Client and to certify to the Client’s satisfaction that this has been done.
9.4 If the Company receives any request for disclosure of Client Data by a law enforcement authority or anyRegulator, the Company shall, unless prevented by law:
9.4.1 promptly notify the Client prior to making any such disclosure in order to enable the Client to take such steps as it deems reasonably necessary in order to maintain the confidentiality of such Client Data; and
9.4.2 agree the timing and exact content of any such disclosure with the Client in advance of it being made, with any disclosure being subject to the Client’s prior written approval.
9.5 The Company shall not delete any Client Data (including back-ups) without the Client’s prior written consent, including any back-ups or copies of it.
9.6 The Company shall establish and maintain appropriate safeguards against the destruction, loss, theft or alteration of Client Data in the Company’s possession or control that are in any event no less rigorous than those maintained by the Company for the Company’s own information of a similar nature or that otherwise comply with Applicable Laws, Data Protection Laws and Best Practice.
The Company will ensure:
9.6.1 there is a clear process for disaster recovery and continuity services;
9.6.2 define recovery time objectives and recovery point objectives (RTOs and RPOs);
9.6.3 the Client should have access to audit reports and testing results;
9.6.4 consider whether the Cloud Services are compliant with global Best Practice;
9.6.5 ensure the respective obligations of the parties are clearly defined; and
9.6.6 plans are reviewed at least once annually.
9.7 The Company shall perform secure and frequent backups of all the Client Data in accordance with the Client’s requirements and shall ensure that such back-ups are available to the Client, upon request, within 24 hours. All back-ups shall comply with the Client’s designated security standards and applicable policies at all times.
9.8 In providing the Cloud Services to the Client, the Company warrants, represents and undertakes that it shall ensure that the Client’s designated security requirements are complied with at all times and that all Client Data is secured and encrypted as required by the Client from time to time. In addition and without limiting the foregoing, the Company warrants, represents and undertakes that it shall identify all reasonably foreseeable internal and external risks to the security and integrity of the Client Data, implement the necessary safeguards to mitigate those risks and take all necessary steps to ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
As a minimum the Company will:
9.8.1 take reasonable precautions to preserve the integrity of any Client Data or other data which it processes and to prevent any corruption or loss of such data;
9.8.2 ensure that where Client Data is moved to or within the cloud, that all Client Data will be encrypted with the Client having the encryption key on premise;
9.8.3 follow archiving procedures for such Client Data as per the standard agreed with the Client; and
9.8.4 in such event and if attributable to any default by the Company, promptly restore the Client Data at its own expense or, at the Client’s option, promptly reimburse the Client for any reasonable expenses it incurs in having the data restored by a third party.
9.9 To the extent that, as part of the Cloud Service, Client Data may be stored on a shared hardware or software environment and/or shared network or platform (collectively, “Shared Resources“), this will only be permitted to the extent that:
9.9.1 the Parties have expressly agreed thereto under a relevant Transactional Document;
9.9.2 the Client is provided with full details of where and how the Client Data is stored and accessed on the Shared Resources;
9.9.3 such Shared Resources shall be logically partitioned in such a manner that all the Client Data remains separated from and is under no circumstances commingled with the data of third-parties utilising such Shared Resources; and
9.9.4 the Client shall be provided with regular audit reports by the Company confirming the location of the Client Data and confirming that the integrity of the Client Data is maintained and that such Client Data is securely partitioned within the Company ‘s environment.
9.10 On the Terms of the relevant Transactional Documents (as applicable) termination or expiry, the Company shall return to the Client in a reasonably commonly used digital format the Client Data it processed under the Terms or the relevant Transaction Document (as applicable) and then promptly delete and cease processing all such Client Data, unless otherwise instructed by the Client in writing or as required under applicable laws.
9.11 In addition to and without limiting any other indemnity under the Terms, the Company agrees to fully indemnify the Client and/or any of the Client’s authorised users against any Losses incurred as a result of or in connection with the loss of, damage to and/or destruction of Client Data and/or any unauthorised access gained to Client Data or Client systems.
9.12 Notwithstanding anything to the contrary contained in the Terms or a Transaction Document, the Company shall ensure that:
9.12.1 it allows and reasonably collaborates with the Client, an auditor mandated by the Client, a Regulator and/or law enforcement authority concerned carrying out an audits and/or inspections of the Company, any of its subcontractors and/or any of the facilities and IT systems used to process Client Data on behalf of the Client from time to time (including before the processing commences) to verify the Company’s compliance with its obligations under the Terms, this Annexure A – Cloud Services and any Applicable Laws;
9.12.2 provide promptly all such information as the Client may require in connection with the Company’s access to, processing and storage of Client Data in connection with the Terms or a Transaction Document (as applicable), in order to comply with the request or instructions of a Regulator or law enforcement agency; and
9.12.3 Client Data is not stored in a jurisdiction where such Client Data (or any part thereof) is not accessible.
10.1 In addition to and without limiting any other warranty provisions under the Terms, the Company warrants, represents and undertakes the following in respect of the Cloud Services:
10.1.1 that it has the right, power and authority to grant to the Client the rights contemplated in the Transactional Document and to supply the Cloud Services and Documentation;
10.1.2 that the performance or making available of the Cloud Services and Documentation by the Company to the Client does not and shall not infringe the Intellectual Property rights of any third-party;
10.1.3 that it will make available the Cloud Services and the Cloud Services will perform and continue to perform in accordance with the description of the Cloud Services provided in the relevant Transactional Document and the Documentation;
10.1.4 that it shall take all reasonable efforts to ensure that the Cloud Services are free from any code or instruction that may be used to access, monitor, modify, delete or damage any Client Data;
10.1.5 that it shall provide the Cloud Services in accordance with and maintain the Client’s security requirements and any applicable Client group policies;
10.1.6 that in performing its obligations, it shall at all times comply with all applicable Laws, including all Data Protection Laws and has and shall maintain all licences, regulatory approvals, permissions, waivers, certificates and consents as are necessary or as may be required for the provision and use of the Cloud Services;
10.1.7 that it shall deal promptly and properly with all enquiries from the Client relating to the processing of Client Data and promptly comply with any request from the Client requiring the Company to amend, transfer, remove or return Client Data and to certify that this has been done;
10.1.8 no Cloud Service will include, or require for its effective use, any open source software, ‘free’ software or any code derived therefrom without the Client’s prior written consent, save where provided, in each instance, as a Special Condition in the Transactional Document describing the open source software and the relevant open source license governing such software;
10.1.9 the Documentation is a full, accurate and up-to-date description of the operation, features, functionality and performance of the Cloud Services that provides sufficient information to enable users with appropriate instructions, training and skills to use the Cloud Services; and
10.1.10 except as expressly set out in the applicable Transactional Document, no additional software API, plug-ins or non-standard browser components licences are required for the effective use of the Cloud Service, including, without limitation, for effective use of any database components thereof.
11.1 Any breach by the Company of any provision of this Annexure A – Cloud Services shall constitute a material breach entitling the Client to terminate the Terms or any part thereof immediately on written notice of 7 days to the Company. Such termination shall be without prejudice to any other rights or remedies the Client may have, whether under the Terms or otherwise. In the event that the Client terminates the Terms or any part thereof pursuant to this Annexure A – Cloud Services or as otherwise permitted under the Terms itself, the Company shall promptly refund any unused pre-paid fees, as agreed, to the Client.
12. EXIT ASSISTANCE
12.1 In addition to and without limiting the provisions of the Terms, the provisions of this clause 11 shall apply in respect of Exit Assistance.
12.2 At cancellation, expiration or termination of this Terms or any relevant Transactional Document in terms of which the Client has contracted the Company to perform Cloud Services, or any part thereof, the Company shall, at the request of the Client and at no additional cost, makes itself available to provide Exit Assistance.
12.3 The Company shall accomplish a complete transition of any terminated Cloud Services from the Company to the Client and/or to any third-party service provider(s) to whom the Client may contract for replacement services following termination of these Services (“Replacement Company(s)“), as part of the Exit Assistance, and shall cooperate with the Client and/or the Replacement Company and/or any other third-party providing services, so as to not cause any unnecessary interruption of, or cause any unnecessary adverse impact on the Cloud Services and/or any other services provided by third parties to the Client (the “Handover“).
12.4 Without limiting the generality of the foregoing, the Company shall:
12.4.1 cooperate with the Client and/or the Replacement Company, including by promptly taking all steps required to assist the Client in effecting a complete Handover;
12.4.2 at the election of the Client, which election shall be exercised in the Client’s sole discretion, continue to provide the Cloud Services for such period of time as the Client may require during the Handover and if required, following its completion. For purposes of clarity, the Company shall under no circumstances provide the Cloud Services beyond the expiry of the term of the Terms (or relevant Service Document) unless the Client has provided written notification to the Company to continue its provision of the Cloud Services beyond the expiry of the term of the Terms (or relevant Transactional Document) at an agreed fee with the Company.
12.4.3 provide to the Client and/or the Replacement Company all information regarding the Cloud Services required to successfully carry out the Exit Assistance including, without limitation, data conversions, data compilation and migration, provision of documentation, interface specifications and all work in progress, documentation and reports and related professional services such as training related to the Handover of the Cloud Services to the Client; and
12.4.4 provide for the prompt and orderly conclusion of all work, as the Client may direct, including documentation of work in process and other measures to provide an orderly transition to the Client and/or the Replacement Company.
12.5 The Company agrees that it shall use its best efforts in relation to its Terms with all third-parties relating to the Cloud Services, not to include any terms that would prohibit or otherwise restrict such third-parties from entering into Terms with the Client and/or the Replacement Company (whether directly or through an assignment) as provided herein.
12.6 The Company shall cooperate with the Client and all of the Client’s other service providers, to provide a smooth transition, with no unnecessary interruption of the Cloud Services, no unnecessary adverse impact on the provision of the Cloud Services or the Client’s activities and no unnecessary interruption of, or unnecessary adverse impact on, any services provided to the Client by third-parties.
12.7 Without limiting any of the other obligations of the Company in terms of this Terms and subject to the terms of any Third-party contracts and software licence Terms, if requested by the Client as part of Exit Assistance, the Company shall use its best efforts to procure any third-party authorisations necessary to grant the Client the use and benefit of any third-party contracts (including any software licence Terms) between the Company and third-party contractors used to provide the Cloud Services.
12.8 The Company shall deliver to the Client and/or the Replacement Company all Deliverables, Client Data and documentation for all Deliverables (including all work in progress) and any other relevant documentation and data related to the Client’s receipt of the Cloud Services and required by the Client in order to enable continued operation of services (similar to the Cloud Services), provided that the Company shall not be obliged to provide the Client with any documentation that is proprietary to the Company.
ACCEPTABLE USE POLICY
The Acceptable Use Policy (“AUP”) applies to the use of any product, service or website provided by us, whether we provide it directly or use another party to provide it to you. This AUP is designed to ensure compliance with the laws and regulations that apply to the Flexyforce Service. This AUP also protects the interests of all of our clients and their customers, as well as our goodwill and reputation. These terms are so important that we cannot provide the Flexyforce Service unless you agree to them. By using the Flexyforce Service, you are agreeing to these terms.
If you are using any Flexyforce Service, this AUP applies to you. Every client of ours agrees to abide by this AUP and is responsible for any violations. You are not allowed to assist or engage others in a way that would violate this AUP. We will enforce and ensure compliance with this AUP by using methods we consider to be appropriate, such as complaint and email failure monitoring. We may also suspend or terminate your use of Flexyforce Services pursuant to our Customer Terms of Service for violations of this AUP.
We periodically update these terms and we will let you know when we do through the Notification app in the Flexyforce portal used to access your Flexyforce subscription (if you have one), or by posting a revised copy on our website. You agree to review the AUP on a regular basis and always remain in compliance.
- Reporting Suspected Violations
We encourage recipients of email messages sent using the Flexyforce Service to report suspected violations of this AUP to us by forwarding a copy of the received email with FULL headers to [email protected] If you know of or suspect a violation of this AUP, you will promptly notify us in writing of the known or suspected violation of this AUP.
- Prohibited Email Actions
- You may not use Flexyforce to send spam. Spam can be in the form of bulk email or one to one commercial emails.
Bulk email is spam when it is unsolicited. Unsolicited means the recipient has not granted verifiable permission for the message to be sent. Bulk means that the message is sent as part of a larger collection of messages that have substantially similar content.
You may not use the Flexyforce Service in any way (directly or indirectly) to send, transmit, handle, distribute or deliver:
(a) spam in violation of any legislation or any other law;
(b) email to an address obtained via Internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting);
(c) email to an address that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications, using best efforts and best practices in the industry;
(d) commercial electronic messages in violation of any Anti-Spam Legislation, or
(e) in violation of the General Data Protection Regulation (GDPR).
- You may not use any misleading or false names, addresses, email address, or subject line.
Email sent, or caused to be sent to or through the Flexyforce Service may not:
(a) use or contain invalid or forged headers;
(b) use or contain invalid or non-existent domain names;
(c) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
(d) use other means of deceptive addressing;
(e) use a third party’s internet domain name without their consent, or be relayed from or through a third party’s equipment without the third party’s permission;
(f) contain false or misleading information in the subject line or otherwise contain false or misleading content; or
(g) use our trademark(s), tagline(s), or logo(s) without our prior written consent and only then pursuant to our trademark usage guidelines.
- You may not email purchase lists.
You are prohibited from using the Flexyforce Service to email:
(a) purchased, rented, or borrowed lists, and
(b) lists that are likely to result in an excessive number of unsubscribe requests or Spam complaints or notices, as determined by acceptable industry practices.
- Email Opt-out Requirements
You warrant that each email you send or is send for you using the Flexyforce Service will contain:
(a) header information that is not false or misleading; and
(b) an advisement that the recipient may unsubscribe, opt-out or otherwise demand that use of its information for unsolicited, impermissible and/or inappropriate communication(s) as described in this AUP be stopped (and how the recipient can notify you that it wants to unsubscribe, opt-out, or stop this use of its information).
These requirements may not apply if the email sent is a transactional email and these requirements are not otherwise required by law. You warrant that you will promptly comply with all opt-out, unsubscribe, “do not call” and “do not send” requests.
- No Disruption
You agree not to use the Flexyforce Service in a way that impacts the normal operation, privacy, integrity or security of another’s property. Another’s property includes another’s account(s), domain name(s), URL(s), website(s), network(s), system(s), facilities, equipment, data, other information, or business operations. You also agree not to use the Flexyforce Service to gain unauthorized access to, use, monitor, make an unauthorized reference to, another’s property, unless you have the appropriate express prior consent to do so. Examples of prohibited actions include (without limitation): hacking, spoofing, denial of service, mailbombing and/or sending any email that contains or transmits any virus or propagating worm(s), or any malware, whether spyware, adware or other such file or program.
You also agree not to use the Flexyforce Service in a way that causes or may cause any Flexyforce IP addresses, Flexyforce domains, or Flexyforce customer domains to be blacklisted. These restrictions apply regardless of your intent and whether or not you act intentionally or unintentionally.
- Proper Usage of the Flexyforce Service
In addition, and without limiting the other requirements in this AUP, you may not (directly or indirectly) use the Flexyforce Service with content, or in a manner that:
- is threatening, abusive, harassing, stalking, or defamatory;
- is deceptive, false, misleading or fraudulent;
- is invasive of another’s privacy or otherwise violates another’s legal rights (such as rights of privacy and publicity);
- contains vulgar, obscene, indecent or unlawful material;
- infringes a third party’s intellectual property right(s);
- publishes, posts, uploads, or otherwise distributes any software, music, videos, or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you have all necessary rights and consents to do so;
- uploads files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another person’s computer;
- downloads any file that you know, or reasonably should know, cannot be legally distributed in that way;
- falsifies or deletes any author attributions, legal or proprietary designations, labels of the origin or source of software, or other material contained in a file that is uploaded;
- restricts or inhibits any other user of the Flexyforce Service from using and enjoying our website and/or the Flexyforce Service;
- harvests or otherwise collects information about others, including e-mail addresses, without their consent;
- violates the usage standards or rules of an entity affected by your use, including without limitation any ISP, ESP, or news or user group (and including by way of example and not limitation circumventing or exceeding equipment use rights and restrictions and/or location and path identification detail);
- is legally actionable between private parties;
- is not a good faith use of the service, such as uploading Contacts in excess of your Contact tier, emailing those Contacts and then purging them shortly thereafter; and/or
- is in violation of any applicable local, state, national or international law or regulation, including the General Data Protection Regulation (2016/679), the Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services.
You will use the Flexyforce Service for your internal business purposes and will not:
(i) willfully tamper with the security of the Flexyforce Service or tamper with our customer accounts;
(ii) access data on the Flexyforce Service not intended for you;
(iii) log into a server or account on the Flexyforce Service that you are not authorized to access;
(iv) attempt to probe, scan or test the vulnerability of any Flexyforce Service or to breach the security or authentication measures without proper authorization;
(v) willfully render any part of the Flexyforce Service unusable;
(vi) lease, distribute, license, sell or otherwise commercially exploit the Flexyforce Service or make the Flexyforce Service available to a third party other than as contemplated in your subscription to the Flexyforce Service;
(vii) use the Flexyforce Service for time sharing or service bureau purposes or otherwise for the benefit of a third party; or
(viii) provide to third parties any evaluation version of the Flexyforce Service without our prior written consent.
- Restricted Industries
Some industries have higher than average abuse complaints, which can directly impact our ability to provide the Flexyforce Service to other customers. To protect our customers, we reserve the right to discontinue your use of the Flexyforce Services if you are in one of these industries. Some examples include:
- Escort and dating services;
- Pharmaceutical products;
- Gambling services or lottery products;
- Multi-level marketing or affiliate marketing;
- List brokers or list rental services;
- Selling ‘Likes’ or followers for a social media platform;
- Flexyforce Trademark Use
Unless you have our express prior written permission, you may not use any name, logo, tagline or other mark of ours or the Flexyforce Service, or any identifier or tag generated by the Flexyforce Service, including without limitation:
(a) as a hypertext link to any website or other location (except as provided for or enabled expressly by us); or
(b) to imply identification with us as an employee, contractor, agent or other similar representative capacity.
You also agree not to remove or alter any of these items as we may have provided or enabled.
- General Terms
We may immediately suspend your access to the Flexyforce Service if you breach this AUP or do not respond to us in a reasonable period after we have contacted you about a potential breach of this AUP. We may also suspend your access as we explain in our Terms of Service and, if you breach this AUP, we may terminate your subscription agreement for cause. You acknowledge we may disclose information regarding your use of any Flexyforce Service to satisfy any law, regulation, government request, court order, subpoena or other legal process. If we make this type of required disclosure we will notify you, unless we are required to keep the disclosure confidential.
We are not obligated to, but may choose to, remove any prohibited materials and deny access to any person who violates this AUP. We further reserve all other rights.
We may update and change any part or all of this AUP. If we update or change this AUP, the updated AUP will be posted on the Website. If you have a Flexyforce subscription, we will we will let you know through the Notification app in the Flexyforce portal used to access your Flexyforce subscription. If you do not have a Flexyforce subscription, we will let you know by posting the revised copy on our Website. When we change this AUP, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this AUP periodically.