November 2015 | Version 1.0
These terms are the general terms of the relationship between us and you. The terms cover any situations where we provide services to you. The terms of any instance will be contained in a request that will incorporate these terms. The request will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any requests.
Definitions and interpretation
In the agreement:
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means the agreement between us and you, consisting of the terms and any requests the parties enter into;
business day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant request is organised;
business hours means our normal business hours on business days;
calendar day means a day counted from midnight to midnight. It includes all days of the month, including weekends (Saturday and Sunday) and public holidays.
contract year means, in respect of a request, each successive 12 calendar month period during the term of the request, calculated from the effective date;
credentials means a unique user ID and password that has been assigned to an authorised user;
effective date means in respect of each request, the effective date stipulated in each request, in the absence of which it will be the date the request is accepted by us;
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;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in applicable law;
request means a services request agreed to and signed by both the parties describing the specific goods or services that we will provide to you;
services means any services we or related persons provide to you, under requests;
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;
terms means the terms, consisting of:
- these terms of service; and
- any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific services);
third party contractor means any contractor, supplier, licensor, or service provider 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 InnoRuption Holdings (Pty) Ltd (Registration number: 2015/414292/07) the service provider that enters into a request and, if specified in the request, 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 a request and, if specified in the request, those related to it;
your data means any data belonging to you (including information about an identifiable person) that:
- you (or any third party on your behalf) provide to us; or
- we generate, process, or supply to you in providing the services;
but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors;
Definitions in the request
Words defined (or assigned a meaning) in a request will have that meaning in the terms, unless the context clearly indicates otherwise.
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.
If there is a conflict of meaning between these terms and any request, the request will prevail in respect of the relevant services.
The terms commence on acceptance and continue until terminated.
You represent and warrant that you (and any person who places a request):
- 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
- 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.
The promotion of the services by us is merely an invitation to make a request of our services. The parties only conclude a valid and binding request when we actually provide the services
You will be deemed to have placed a request 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 an event.
Unless otherwise agreed, we may cancel any request at any time in our absolute discretion.
Time and place
The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant request and at the place where you have your head office. We do not need to communicate the acceptance of the request to you.
The terms in effect at the time you place a request will govern the request. Each request will create a separate agreement. Despite that, we may consider the breach of any one request to constitute a breach of any or all requests.
We may not always have the services on which you make requests available. If the services are not available, you may cancel the request or make another request on the part of the services that are available.
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.
Only authorised users may access the services by using the credentials issued to them.
Authorised 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.
Each authorised user is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by what appears to be you as 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.
Grant 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.
Consent 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.
Third 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.
We are not responsible for any of your data stored on our system.
Location of your data
We are able to provide the website in multiple locations that are located in different countries. Your data will remain in whatever location you place it, unless we have to transfer it across a country border to enable us to comply with our obligations under the agreement.
Privacy and protection of personal information
We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. We both acknowledge that we are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
Trans-border flows of your data
You consent to us transferring your data across a country border to enable us to comply with our obligations under the agreement.
You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
Preservation of integrity of your data
Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
You agree that our records are prima facie evidence of the services provided to you.
You own all your data. We do not own your data or other third party content used as part of the website. All title, ownership rights and intellectual property rights in and to the content accessed through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.
Your data license
When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.
Retention of rights
We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.
Use of our technology
If we utilise any of our technology in connection with our performance under a request, our technology will remain our property and you will not acquire any right or interest in it.
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.
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, decompiled, reverse engineered, or copied; or
- reproduced, transferred, or distributed.
All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
Responsibility to keep information confidential
Each party must keep confidential any information it receives from the other party or under this agreement.
The 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.
End 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.
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.
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.
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.
No party will, during the currency of any request 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 request.
We warrant that:
- we have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement;
- we and our personnel will not knowingly introduce any malicious software into your material or your system; and
- we will at all times comply with our obligations in terms of the agreement with the care and diligence required in accordance with the current best practices and standards prevailing in our industry.
Disclaimer of warranties
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; or
- 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.
Exclusion 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.
You warrant that:
- you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;
- by entering into a request 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.
Intellectual property infringement
We will defend you against any claims made by any third party that any services infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgement (or settlement to which we consent). We will reimburse you with all costs you incurred in connection with assisting us with the defence of the action immediately on demand (including attorneys fees on an attorney and own client basis). You will notify us of the claim in writing and we will have sole control over its defence or settlement.
Consequences of successful claim by third parties
If any third party succeeds in its claim for the infringement of any intellectual property rights, we may within 30 calendar days of the infringing item having been found to so infringe:
- obtain for you the right to continue using the infringing item or the parts that constitute the infringement;
- replace the infringing item or the parts that constitute the infringement with another product that does not infringe and that in all respects operates substantially in accordance with its specifications;
- alter the infringing item in a way as to render it non infringing while still in all respects operating substantially in accordance with its specifications; or
- withdraw the infringing item and refund to you all fees paid by you to us under the relevant request specifically with regard to the infringing item in the preceding six calendar month period.
We will not be liable for any claim that arises out of goods or services you select and acquire from third parties.
This clause will survive termination of the agreement.
Limitation of liability
Direct damages limited
To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to a you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount. If the services were free, then this amount is zero.
Indirect damages excluded
To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.
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.
We are not liable for your default
We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
Other goods or services
We are not liable for any other deliverable, including website, goods, or service provided by any third party.
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.
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.
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 million rand, within 21 days; then the other party may, without prejudice to any of its rights:
- claim specific performance of this agreement (make the party comply with this agreement); or
- immediately cancel this agreement in writing; and
- claim damages from the other party, including any claim for any fees already due.
Suspension of service
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.
Preservation 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.
Termination 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.
Duties 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.
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.
Effect of termination
Post 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 fees and terms that we may impose for such assistance.
You acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect::
- continued service for any period whether definite or indefinite;
- the renewal or extension of the term of any agreement; or; or
- the conclusion of any further agreement between you and us or our personnel.
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.
Notifying each other
There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- negotiation (direct talks to try and agree how to end the dispute); failing which
- mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
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.
If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
Agree otherwise in a request
The parties may agree otherwise in a request.
The parties may agree in writing to change the periods for negotiation or mediation.
Urgent interim relief
This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
Notices and domicile
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.
Service (delivery) address for legal documents
Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
Change of addresses or numbers
Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.
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.
Notice actually received
If a party actually receives any notice or other communication, this will be good enough.
Parties not liable
No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
Party affected to notify other party
If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
Right to cancel
If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.
Assignment and subcontracting
Assignment by you
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.
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.
Our third party contractors
We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
No temporary employment service or partnership
Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
No employment relationship
Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
The agreement is the entire agreement between the parties on the subject.
Changes to the terms
We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on 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.
Changes to any third party software license agreement
We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on 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.
Acceptance of changes
If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
Waiver (giving up of rights)
Any favour we may allow you will not affect or substitute any of our rights against you.
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.
South African law governs this agreement.
You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.