Terms and Conditions
1 Preamble
1.1 This document contains the Terms and Conditions which govern the use of the Service Provider’s Services.
1.2 These Terms and Conditions must be read together with the Specific Terms and Conditions and any mentioned Policies.
1.3 By using and paying for any of the Services offered by the Service Provider, the Client agrees to be bound by the provisions of these Terms and Conditions, the relevant Specific Terms and Conditions and any mentioned Policies.
1.4 In the event of a discrepancy between the Terms and Conditions and the Specific Terms and Conditions, the Specific Terms and Conditions will take precedence.
1.5 These Terms and Conditions regulate all aspects of the business and working relationship between the Parties.
2 Definitions
2.1 ‘Client’ or ‘You’ means the Client, including all of the Client’s users, making use of the Services provided by the Service Provider.
2.2 ‘Confidential Information’ includes but is not limited to any client lists, contracts signed, trade secrets, operational procedures, company policies, financial information, and other details, assistance or advice given or requested by either Party, but does not include information which is lawfully in the public domain.
2.3 ‘Fees’ means the fees charged by the Service Provider for the provided Services.
2.4 ‘Intellectual Property’ includes but is not limited to copyrights, patents, trademarks, service marks, trade and business names, rights in designs, patents, database rights, and rights in know-how and other intellectual property rights in each case whether registered or unregistered.
2.5 ‘Malicious Code’ means anything that contains computer software or code intended to allow unauthorised or unlawful access or use of a computer system by any party or is intended to disable, damage, erase, disrupt or impair the normal operation of a computer system.
2.6 ‘Party’ means the Client or the Service Provider and ‘Parties’ means the Client and the Service Provider as the case may be.
2.7 ‘Personal Information’ shall have the meaning given to it in the Protection of Personal Information Act, No.4 of 2013 as amended from time to time, including any regulations and/or code of conduct made under the Act.
2.8 ‘Processing’ shall have the meaning ascribed to it in Chapter 1 of the Protection of Personal Information Act, No.4 of 2013 as amended from time to time.
2.9 ‘Resource Allocation’ means the maximum allowable amount of resources which includes, but is not limited to, data bandwidth, traffic usage, data storage, memory, number of and usage of CPU’s as provided with any Service during a predefined period.
2.10 ‘Responsible Party’ shall have the meaning ascribed to it in Chapter 1 of the Protection of Personal Information Act, No.4 of 2013 as amended from time to time.
2.11 ‘Service Provider’ means Optima Business Systems and Consulting (Pty) Ltd (trading as OptimaBSC) which is a company registered in the Republic of South Africa with business registration number 2018/288445/07.
2.12 ‘Software’ means any computer software or program, including the associated databases, installed or provided by the Service Provider for the purpose of providing the Services.
2.13 ‘Software Licences and Subscriptions’ means all software licences and subscriptions as described in the Specific Terms and Conditions under the Software Licences and Subscriptions heading.
2.14 ‘Service’ or ‘Services’ means all services provided by the Service Provider as specified on the Service Provider website or in these Terms and Conditions and in the Specific Terms and Conditions, whether free or charged.
2.15 ‘Supplier’ means a supplier of goods, products or services to the Service Provider.
2.16 ‘System’ means any equipment provided by the Service Provider or its Suppliers to provide the Services.
2.17 ‘Terms and Conditions’ means this document together with all Specific Terms and Conditions as may be amended from time to time.
3 Interpretation
3.1 In these Terms and Conditions unless the context otherwise requires:
3.1.1 A reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit;
3.1.2 Words importing any one gender includes the other gender and the singular includes the plural and vice versa;
3.1.3 A reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person;
3.1.4 In the context of permission, “shall not” or “may not” in connection with an action of the Client, means “must not”;
3.1.5 The headings to the paragraphs and schedules (if any) in these Terms and Conditions are inserted for convenience only and do not affect the interpretation;
3.1.6 Any agreement by either Party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;
3.1.7 Except where stated otherwise, any obligation of any person arising in these Terms and Conditions may be performed by any other person;
3.1.8 A reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to;
3.1.9 These Terms and Conditions apply to all supplies of Services by the Service Provider and they prevail over any terms and conditions proposed by the Client; and
3.1.10 These Terms and Conditions are made only in the English language. If there is any conflict in meaning between the English language version of these Terms and Conditions and any version or translation of these Terms and Conditions in any other language, the English language version shall prevail.
4 Commencement and Duration
4.1 The effective date of these Terms and Conditions shall be from the date the Client:
4.1.1 Signs these Terms and conditions;
4.1.2 Makes the first payment to the Service Provider for Services provided; or
4.1.3 Initiates any Service via the Service Provider’s website or via any other platform.
4.2 On the effective date of the Terms and Conditions, the Client appoints the Service Provider to provide the Service(s) to the Client for the duration as described in these Terms and Conditions.
4.3 The minimum duration of these Terms and Conditions shall be one (1) month.
4.4 These Terms and Conditions shall continue on a month to month basis, subject to the Specific Terms and Conditions.
4.5 The termination date shall be after the completion of one (1) calendar month written notice of termination by one Party to the other Party, but not before the end of the minimum duration.
4.6 In the event that the termination is before the end of the minimum duration, all Fees due to the Service Provider for the balance of the minimum duration will be immediately due and payable by the Client.
4.7 The Service Provider may suspend the Services without notice if:
4.7.1 Any of the Fees are not paid in full and by the due date by the Client;
4.7.2 The information provided by the Client to the Service Provider is found to be incorrect or false;
4.7.3 The Service Provider reasonably believes that the Client’s use of the Services may result in a criminal offence or is otherwise unlawful;
4.7.4 The Client commits a serious or repeated breach of the Terms and Conditions; or
4.7.5 The Client engages in any conduct which would have any negative impact on the Service Provider, the Service Provider’s other customers or the Service Provider’s staff.
4.8 In the case of a Service suspension, the Client:
4.8.1 Shall not be able to use the Services with immediate effect;
4.8.2 Shall not be entitled to a re-imbursement or credit for any Fees paid in advance for the Services; and
4.8.3 May be barred from using any of the Service Provider’s Services in future.
4.9 The Service Provider will determine the period of any suspension considering the circumstances which lead to the suspension.
4.10 If the Client has not complied with these Terms and Conditions, the Service Provider may delay providing the Services until the Client has complied. If the Client does not comply within a reasonable period, the Service Provider may terminate all Services and will not be liable for any damage that the Client may suffer as a result.
4.11 The Service Provider may terminate all Services without liability if a Supplier agreement is terminated which is relevant to the provision of any Service.
5 Fees and Payments
5.1 The Fees payable for Services are available either on the Service Provider’s website or can be requested directly from the Service Provider.
5.2 The Service Provider reserves the right to amend the Fees at any time with reasonable notice.
5.3 Subject to the Specific Terms and Conditions, regular or re-occurring Services will be renewed automatically, unless the Client cancels the Service with at least one calendar month written notice to the Service Provider, before the next expiry date of the Service.
5.4 Fees and any other amounts payable are quoted inclusive of VAT unless otherwise indicated.
5.5 All invoices shall be sent to the Client by e-mail and the Client is responsible to keep the Service Provider informed of all changes to their e-mail addresses.
5.6 Fees for regular or re-occurring Services, including subscriptions, service and support packages, are payable in advanced by the Client on or before the invoice due date.
5.7 All payments for regular or re-occurring Services shall be paid by debit order or credit card, and payments by electronic funds transfer may only be made by prior arrangement at the Service Provider’s discretion.
5.8 Fees for irregular or ad-hoc Services, including project services, consulting services and usage fees, are payable in arrears by the Client on or before the invoice due date.
5.9 All payments shall be without deduction and free of exchange or set-off.
5.10 In the event of a debit order being returned by the Client’s bank, the Service Provider shall charge a debit order return fee of the greater of five (5) percent of the attempted debit order amount or fifty South African Rands (R50.00).
5.11 The Service Provider shall charge monthly compounded interest, at the current prime interest rate plus two (2) percent, for any amounts due to the Service Provider which are outstanding for thirty (30) days or more.
5.12 In the event that the Service Provider instructs its attorneys to pursue legal action to recover outstanding amounts from the Client in cases where any amount is outstanding for sixty (60) days or more, then the Client shall be liable for the legal fees and disbursements incurred by the Service Provider on the scale as between attorney and client, irrespective of whether summons is served or not.
5.13 All invoices presented to the Client by the Service Provider will be in South African Rands (ZAR) and payment shall be made by the Client in South African Rands (ZAR), unless it is mutually agreed in writing by the Parties to use a different currency for selected or all of the transactions between the Parties.
5.14 The Service Provider retains the right to suspend any and all its Services for non-payment (which may not be limited to the particular Service in question), and to withhold such Services until all arrears are settled in full on any and all products and Services. While Services are in a suspended state the Client will have no access to the Services, but will continue to be liable for the full cost associated with the Service(s) and no refunds or pro-rata of any kind will be provided to the Client for the period in which the Service was suspended.
6 Services and Changes to Services
6.1 The Service Provider offers various Services and may provide recommendations to customers, based on the information provided by the customers. The Service Provider provides Services on the basis of information provided by the Client, and the Service Provider offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Client. The Client is solely responsible for ensuring that their choice of Services provided by the Service Provider are suitable to their requirements or desired outcome. The Service Provider will not be liable for compensation, costs or damages resulting from incorrect selection of Services, or resultant delays in rectifying such errors.
6.2 While every effort is made by the Service Provider and its Suppliers to ensure that all Services retain a constant uptime (99.9% on a yearly basis and 99% on a monthly basis) and high level of service quality, given the nature of the Services, technology, infrastructure and number of Suppliers involved in the provision of such Services this is not always achievable. As such all Services unless otherwise agreed to in writing are based on the best effort premise where no guarantees can be provided. If in the instance that the Service Provider cannot meet such standard of service quality its liability will not exceed the monthly or pro-rata Fees due for the Service in question in the preceding three (3) months or two thousand five hundred South Africa Rand (R2500.00), whichever is the lesser.
6.3 To the extent that the provisions of the Consumer Protection Act (No. 68 of 2008) are applicable to these Terms and Conditions, in the event that the Client alleges that there is a defect in the quality of the Services, the only remedy that the Client will have against the Service Provider, is to require the Service Provider to remedy the defect in the quality of the Services performed.
6.4 The Service Provider reserves the right to stop offering particular Services if it deems it necessary. The Service Provider will then either provide the Service for the remainder of the time that has been paid for or refund the amount paid for that specific Service.
7 Security
7.1 The Client shall not do anything thing that will prejudice the Service Provider’s System and must take all reasonable measures to ensure that:
7.1.1 No unlawful or unauthorised access is gained to the Service Provider’s System or the Client’s own system;
7.1.2 No Malicious Code is introduced into the Service Provider’s System;
7.1.3 No person or third party is allowed to modify, copy or cause damage to the Service Provider’s System or any software used within it;
7.1.4 No person or third party downloads software used within the Service Provider’s System without written consent from the Service Provider; and
7.1.5 The Client data is safeguarded.
7.2 If the Client discovers a security violation, or believes a security violation may occur, the Client must immediately notify the Service Provider in a way that does not further compromise security.
7.3 If a security violation occurs, or the Service Provider believes a violation may occur, the Service Provider may take whatever steps it considers necessary to maintain the proper functioning of the Service Provider’s System including without limitation:
7.3.1 Changing the Client’s access codes and passwords or those of any user of the Service Provider’s System; and
7.3.2 Preventing access to the Service Provider’s System.
7.4 The Client must give its full cooperation to the Service Provider in any investigation that may be carried out by the Service Provider regarding a security violation.
7.5 Although reasonable measures have been taken to ensure the security of the Service Provider’s System, the Service Provider gives no warranty that breaches of security will not take place.
7.6 Although reasonable measures have been taken to provide disaster recovery, the Service Provider does not warrant that recovery will be successful or that it will be completed within any time limit.
7.7 If the Client is providing any Service to third parties that makes use of the Service Provider’s System, the Client must contractually bind those third parties to equivalent terms regarding security as are set out in the clauses of these Terms and Conditions under the Security heading.
8 Client Duties
8.1 The Client is prohibited from selling, reselling or otherwise dealing with the Services(s) which are proprietary to the Service Provider in any manner whatsoever without its consent.
8.2 The Client is prohibited from allowing any person, other than its employees or other authorised parties, to have access to the Service(s).
8.3 The Client shall only use the Service in compliance with South African Laws, these Terms and Conditions and the Service Provider’s policies, as published on the Service Provider’s Website. The Client acknowledges that the Service Provider has no obligation to assist the Client in obtaining knowledge and/or clarity in terms of the applicable South African Law.
8.4 Where any Service is provided to the Client with a Resource Allocation, such Resource Allocation may not be exceeded. In the event of such Resource Allocation being exceeded by the Client, the Service Provider shall charge the Client for such over usage as applicable to the particular Service and at the prevailing over usage rate for that Service.
9 Limitation of Liability and Indemnity
9.1 The Service Provider shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where the Service Provider’s negligence, failure, delay or inability to perform any of the Service(s), any defect or failure in the equipment, or due to the occurrence of any of the following events:
9.1.1 The Client’s failure to perform, or delay in performing its obligations in terms of these Terms and Conditions, including non-payment of fees;
9.1.2 Circumstances that constitute an event of force majeure as contemplated in these Terms and Conditions;
9.1.3 Compliance by the Service Provider with any applicable national and international legislation and laws;
9.1.4 Any alteration to the Software and System by the Client ; and/or
9.1.5 Any defect and/or hazard in any third party software and/or equipment required by the Client to be used in the provision of the Services.
9.2 The Client shall indemnify and hold the Service Provider and any of its members, representatives, officers or employees as well as any third parties whose networks are connected to the Service Provider System, harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of the clauses under the Limitation of Liability and Indemnity heading of these Terms and Conditions.
9.3 In the event that the Service Provider is nonetheless held liable, the limit of the Service Provider’s liability will not exceed the monthly or pro-rata Fees due for the Service that occasioned the loss, in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of the Service Provider or any other cause.
9.4 From time to time, the Service Provider may deem it necessary to conduct maintenance, repair and/or improvement work on its technical infrastructure by means of which the Services are provided and in order to perform these activities, the Service Provider may have to suspend the Services. The Service Provider undertakes to provided reasonable notice to the Client by way of a notice on its website and the Client agrees that all liability on the part of the Service Provider of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
9.5 Use of the Services indicates that the Client indemnifies and holds harmless the Service Provider in respect of any damages, loss or costs or claims instituted against the Service Provider arising from any application or subscription to or use of any Service or breach of these Terms and Conditions.
9.6 Nothing contained in the clauses under the Limitation of Liability heading will limit the Client’s liability in respect of charges incurred for ongoing Services.
10 Intellectual Property
10.1 The Parties shall ensure that no infringements of whatsoever nature are made on the Intellectual Property rights and privileges of each other as relied on in these Terms and Conditions, as well as the Specific Terms and Conditions.
10.2 All Intellectual Property rights in and to the Service Provider’s Software, Systems, procedures and policies relating to or used in connection with the Service(s) provided under these Terms and Conditions shall belong to the Service Provider.
10.3 All intellectual property rights in and to Suppliers’ software and systems, procedures and policies relating to or used in connection with the Service(s) provided under these Terms and Conditions and licensed to the Service Provider shall be made available to Clients in the sole discretion of the Service Provider and subject to the Service Provider’s agreement with its Suppliers.
10.4 The Client recognises and agrees that certain of the Services are provided with, or facilitated by, certain open source software and the use of such open source software is subject to the applicable open source license terms which are either presented with the applicable Services or are readily accessible from within the applicable software or from a publicly-available source, in which case the Client shall be responsible to access, review, and abide by all such license terms prior to any use Services which are provided with, or facilitated by the corresponding software. By using the Services, the Client agrees to comply with and be bound by these Terms and Conditions governing the use of open source software programs.
10.5 The Client undertakes that it shall at no time, have any right, title or interest in the Intellectual Property of the Service Provider or the applicable Suppliers and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the software, systems, procedures and policies owned by the Service Provider , or any of its Suppliers.
10.6 The Client agrees to only make use of properly licensed third party software in connection with its use of the Services and agrees to indemnify and hold the Service Provider and any of its members, representatives, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any third party claims relating to its involvement in any copyright infringement or alleged copyright infringement.
10.7 The Client warrants that it shall not use the Service(s) to produce, host or present any content in contravention of any person’s Intellectual Property rights, and in particular warrants that it shall recognise, acknowledge and use any content in accordance with any third party’s Intellectual Property rights. The Client furthermore warrants that it has received all necessary permissions to make use of any Intellectual Property relating to third parties.
10.8 The Client warrants that it shall notify the Service Provider of any suspected or actual infringement of the Intellectual Property rights.
11 Confidential Information and Non-Disclosure
11.1 Both Parties undertake that they shall:
11.1.1 Not at any time, during the operation of these Terms and Conditions or after their termination, disclose to any third party any Confidential Information pertaining to the other of them for any reason or purpose whatsoever without the prior written consent of the other Party, save in accordance with the provisions of these Terms and Conditions; and
11.1.2 Not to utilize, employ, or exploit or in any other manner whatsoever use the Confidential Information disclosed to it by the other Party pursuant to these Terms and Conditions.
11.2 Both Parties each acknowledge that the unauthorized disclosure of the Confidential Information of the other Party to a third party may cause irreparable loss, harm and damage to the other Party, and accordingly, each Party indemnifies and holds the other Party harmless against any loss, action, expense, claim, harm or damage, of whatever nature, suffered or sustained by the innocent Party pursuant to a breach by the other Party of the provisions of this clause.
11.3 Unless the Parties otherwise agree in writing, any documentation or electronic records relating to the other Party’s Confidential Information which comes into the possession of each of them during the existence of these Terms and Conditions or at any time thereafter:
11.3.1 Shall be deemed to form part of the Confidential Information of the Party disclosing such information;
11.3.2 Shall be deemed to be the property of such Party;
11.3.3 Shall not be copied, reproduced, published or circulated by the other Party; and
11.3.4 Shall be surrendered to the disclosing Party on request, and neither of them shall retain any extracts, samples, copies or images thereof.
11.4 Both Parties shall ensure that any of its representatives, employees, agents, consultants or other parties who may have the opportunity of receiving or having any access to any of the Confidential Information of the other Party are aware of and are bound by these Terms and Conditions.
12 Protection of Personal Information
12.1 A Party ("Operator") shall at all times treat and hold all Personal Information it receives and processes from the other Party ("Responsible Party") as confidential and must not disclose it unless required by law or in the course of the proper performance of their duties and may only process such information with the knowledge or authorisation of the Responsible Party.
12.2 The Operator undertakes that it will endeavour to:
12.2.1 In order to protect the proprietary interests of the Responsible Party in and to its Confidential Information and Personal Information the Operator will not at any time, whether during the currency of these Terms and Conditions or at any time thereafter, either use any Confidential Information or Personal Information of the Responsible Party or directly or indirectly divulge or disclose any Confidential Information or Personal Information of the Responsible Party to third parties; and
12.2.2 Upon termination, cancellation or expiry of these Terms and Conditions the Operator will deliver to the Responsible Party, or at the Responsible Party’s option, destroy all originals and copies of Confidential Information in its possession.
12.3 The aforegoing obligations will not apply to any information which:
12.3.1 Is lawfully in the public domain at the time of disclosure to the Operator;
12.3.2 Subsequently becomes lawfully part of the public domain by publication or otherwise;
12.3.3 Subsequently becomes available to the Operator from a source other than the Responsible Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information or Personal Information to the Operator;
12.3.4 Is disclosed pursuant to requirement or request by operation of law, regulation of court order; or
12.3.5 Is required to be processed or retained in terms of any legal obligation or law.
12.4 The Client consents and agrees as part of the conclusion and performance of contract to the Service Provider Processing Personal Information transmitted to the Service Provider’s System in a way which is consistent with the Service being provided. Where the Client’s use of the Service(s) leads to the transmission of Processing of Personal Information, which includes personal information to or from the Republic of South Africa, the Client acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Client warrants that it has obtained the consent of any third party for the use and Processing of that party’s Personal Information in this way, or otherwise that such Processing is lawful, and indemnifies the Service Provider from any claim brought by such third party as a result of its failure to do so.
12.5 The Service Provider will use reasonable endeavours to ensure the safekeeping of any Personal Information or content which may be uploaded to the Service Provider’s Systems from time to time, such as and without being limited to, photographs, websites, videos and e-mail messages (hereinafter collectively referred to as “your data”). However, the Service Provider does not provide any guarantees against data loss, and as such you agree to retain your own backups of your Personal Information and indemnify and hold harmless the Service Provider from any claims as a result of your Personal Information being lost for whatsoever reason.
12.6 The Service Provider shall immediately delete all of your Personal Information from the Service Provider’s Systems upon termination of the Service or termination of these Terms and Conditions. It is thus the Client’s responsibility to ensure that they have made local copies of all of their Personal Information prior to the termination of the Service. The Service Provider shall not retain backups of any kind once the Service is terminated.
13 Force Majeure
13.1 Neither Party shall be liable to the other for any consequences of delay in or failure to fulfil or perform its responsibilities under these Terms and Conditions if and to the extent such delay or failure is caused by circumstances beyond that Party’s reasonable control including, for example, flood, fire, earthquake, war, tempest, hurricane, national industry-wide strike, government restrictions or acts of God.
13.2 The Service Provider shall not be liable for non-performance under these Terms and Conditions to the extent to which the non-performance is caused by events or conditions beyond the control of the Service Provider.
13.3 It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of the Service Provider:
13.3.1 A Supplier’s fault of interruption that affects the Service(s);
13.3.2 The non-performance, inability to perform or delay in performance by the upstream provider relating to the provisioning of equipment, services and/or facilities to the Service Provider that affects the Service(s);
13.3.3 Acts or omissions of any government, government agency, provincial or local authority (including disruption or suspension of the provision of municipal services) or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm or fire;
13.3.4 All telecommunications infrastructure and communication line faults;
13.3.5 Failure or unreasonable delay by the Client to report faults/problems to the Service Provider; and/or
13.3.6 The failure of any hardware, software programme, applications(s) or any other computer systems (or any component thereof) or product or service of any third party on whom the Client relies (whether directly or indirectly) to use the Service(s).
14 Non-Solicitation
14.1 While these Terms and Conditions are in effect, and for a period of one (1) year after the termination of these Terms and Conditions, neither Party shall
14.1.1 Employ, offer to employ or offer employment to any person employed by the other Party; and
14.1.2 Encourage, persuade or induce any employee of the other Party to terminate their employment with that Party.
15 Notices and Domicilia
15.1 All requests by the Client for amendment or termination of the Services or change of any of the business or personal information of the Client must be made in writing in accordance with the clauses under the Notices and Domicilia heading. Any notice required to be given in these Terms and Conditions shall be valid and effective only if in writing, which shall include electronic communications.
15.2 The Parties select their addresses, where they will accept service of any notice or documents for all purposes as their respective domicilia citandi et executandi the physical addresses appearing therein, as follows:
15.2.1 The Service Provider: as disclosed on its website; and
15.2.2 Client: the latest contact details disclosed and recorded by the Service Provider, provided that it is the responsibility of the Client to inform the Service Provider of any changes to such contact details.
15.3 The Parties shall be entitled from time to time by written notice to the other, to vary its contact details, which change will take effect on the date on which the notice is deemed to be received by the other party in terms of the next clause under the Notices and Domicilia heading.
15.4 Any notice given by one Party to the other Party (the “addressee”) which:
15.4.1 Is delivered by hand during normal business hours at the addressee’s physical address shall be deemed to have been received by the addressee at the time of delivery;
15.4.2 Is given by pre-paid registered post shall be deemed to have been received by the addressee on the tenth business day following the day of posting; or
15.4.3 Is given by electronic mail shall be deemed to have been received by the addressee on the second business day following the day of successful transmission of the electronic mail.
15.5 Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the previous clause under the Notices and Domicilia heading.
16 General
16.1 Any previous agreements, contracts or terms and conditions signed between the Parties will not be binding after these Terms and Conditions are in effect.
16.2 The Service Provider may amend the provisions of these Terms and Conditions at any time. The amended Terms and Conditions will be posted on the Service Provider’s website and the Service Provider will make all reasonable efforts to advise the Client of the changes. The Client also has a duty to keep itself informed of the latest version of the Terms and Conditions by accessing the Service Provider’s website on a regular basis. Amendments will become effective fifteen (15) calendar days after the new version has been published on the Service Provider’s website. If a Client wishes to object to any of the amendments, it may terminate the Terms and Conditions and the termination will be effective one (1) month after receipt by the Service Provider of the written notice of termination, where after all Service(s) will be discontinued by the Service Provider. The Client may not make any amendments to the Terms and Conditions.
16.3 The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
16.4 Neither these Terms and Conditions nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by the Client without the prior signed written consent of the Service Provider. In the event of any change in the controlling interest of the Client, the Client shall give written notice of such event and the Service Provider reserves the right to terminate these Terms and Conditions on written notice to the Client. The Service Provider shall be entitled to cede, delegate, assign or otherwise transfer any of its right and obligations hereunder to a third party.
16.5 These Terms and Conditions will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law. The Customer irrevocably consent to the jurisdiction of the Magistrate Courts in accordance with the Magistrates Court Act 32 of 1944, provided that the Service Provider may institute legal proceedings in the High Court of South Africa.
16.6 The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under these Terms and Conditions should they prove not to be so authorised.
17 Breach & Termination
17.1 If either Party commits a breach of any provision of these Terms and Conditions and fails to remedy that breach within seven (7) days after delivery by the other Party of a written notice calling upon the defaulting Party to remedy such breach, the innocent Party shall be entitled, without prejudice to any other rights or remedies it may have, to immediately terminate these Terms and Conditions.
SPECIFIC TERMS AND CONDITIONS
These Specific Terms and Conditions are read in conjunction with the Terms and Conditions and unless otherwise indicated, all the definitions contained have the same meaning as those set out in the Terms and Conditions.
SOFTWARE-AS-A-SERVICE SUBSCRIPTIONS
1. Bitrix24 Cloud and On-Premise
1.1. All subscriptions payable in advance.
1.2. Subject to Bitrix Inc. pricing reviews and excluding promotional pricing.
1.3. Subject to ZAR/USD exchange rate plus applicable Forex commissions/fees at the time of invoicing (in ZAR).
1.4. Invoices issued in ZAR may be revised and re-issued only if the ZAR/USD exchange rate increases or decreases by more than three (3) percent of ZAR/USD the exchange rate used at the time of invoicing.
1.5. The following Bitrix24 Agreements and Terms, which can be found on the Bitrix24 website, apply when using Bitrix24 Cloud and On-Premise services:
1.5.1. Terms of Service
1.5.2. Privacy Policy
1.5.3. GDPR - Data Processing Agreement
1.5.4. Bitrix24 integrations, Third Party Links and Extensions Privacy Statement
1.5.5. On-Premise EULA
1.5.6. Bitrix24.Sign Additional Terms of Service
1.5.7. Rules for using Bitrix24.Sites
1.5.8. Rules for Bitrix24 Contact Center
1.5.9. Rules for Multiple Branches
AD-HOC CONFIGURATION AND SUPPORT SERVICES
2. Service Packages
2.1. Prices include VAT.
2.2. An upfront project initiation fee of thirty (30) percent of the total project cost is payable on commencing the Managed Project and the remaining invoices will be raised by milestone and/or on completion.
2.3. Managed Service monthly invoices are raised and payable in advance.
2.4. Unutilised Managed Service Allocated Hours are not rolled over to following month.
2.5. The Managed Service Excess Hours Rate is used to charge actual hours worked in excess of Managed Service Allocated Hours.
2.6. Invoices for Managed Service Excess Hours are raised at month end and are payable by the invoice due date.
CONSULTING
3. Consulting Contracts
3.1. The Client will be invoiced for consulting services rendered by the Service Provider at the quoted hourly, daily or project rate exclusive of Value Added Tax.
3.2. The fees charged for the consulting contract will be inclusive of travel and accommodation expenses, which may include:
3.2.1. Air fares and taxes;
3.2.2. Expenses incurred for travel by road which will be charged at the appropriate Automobile Association rate for the particular vehicle used at the time the travel occurred;
3.2.3. Expenses incurred for the use of hire cars; and
3.2.4. Accommodation expenses.
3.3. Unless otherwise agreed to in writing between the Client and the Service Provider, the Service Provider will be responsible for booking travel arrangements of staff or consultants employed by the Service Provider.
3.4. Unless otherwise agreed to in writing between the Client and the Service Provider, the Client will be responsible for booking travel arrangements of staff or consultants employed by Client.
3.5. Any other extra or ad-hoc or additional expenses not covered by the Fees charged and which are incurred during the contract and directly associated with carrying out the consulting services for the Client, will be for the Client’s account, including but not limited to:
3.5.1. Printing of training material, operating manuals and project reports;
3.5.2. Hiring of venues for workshops, training, team-building and conferences; and
3.5.3. Acquiring of software, tools, method and techniques.
3.6. The Client will be notified of any extra or ad-hoc or additional expenses as referred to in the previous clause prior to the expenses being incurred, and the expenses will only be incurred after the Client has approved the expenses for the contract delivery.
3.7. The Service Provider will compile time sheets and, if required by the Client, submit these to the Client for approval for time worked.
3.8. These time sheets will be used to determine the amount to be invoiced to the Client.
3.9. Any and all queries the Client has on the time sheets shall be referred back to the Service Provider within five (5) working days of the Client receiving the time sheets, thereafter it shall be accepted that the time sheets are accepted and approved by the Client.