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Global Terms of Engagement

HEADSUP INC. 
Software as a Service: Terms and Conditions

By using the Services provided by HeadsUp Inc. you (the “Client”) are indicating your acceptance to be bound by the provisions of these Terms and Conditions. 

 
1.    INTRODUCTION

1.1    HeadsUp Inc. and its affiliates (hereinafter referred to as “HeadsUp”, “Provider”, “we”, “our” or “us”) provide survey offerings to Clients through its Services (“the Services”).

2.    DEFINITIONS AND INTERPRETATION

2.1    In the interpretation of these Terms and Conditions, unless the context otherwise requires, headings are for reference and convenience only and shall not be taken into account in the interpretation of the Terms and Conditions; the singular shall include the plural and vice versa; and references to one gender shall include references to the other genders.

2.2    If any period is referred to in these Terms and Conditions by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the day shall be next succeeding business day.

2.3    The words “include”, “includes”, “including”, “for example”, or “such as” are not used as, and are not to be interpreted as, words of limitation, and when introducing an example do not limit the meaning of the words to which the example relates to that example or examples of a similar kind. 

2.4    References in the Terms of Conditions to any statute or statutory provision include a reference to that statute or statutory provision as amended, extended, consolidated, or replaced from time to time (whether before or after the date of the Terms and Conditions) and include any order, regulation, instrument or other subordinate legislation made under the relevant statute or statutory provision.

2.5    If figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail.

2.6    The rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply.

2.7    The following expressions bear the meaning assigned to them below and cognate expressions bear corresponding meanings:

2.7.1    "Act of Insolvency” occurs when:

2.7.1.1    A creditor of a Party receives a judgment in its favour against the Party and the Party cannot satisfy the judgment debt;

2.7.1.2    A Party makes or attempts to dispose of any of its property to the detriment of its creditors;

2.7.1.3    A Party offers or makes an arrangement with any of its creditors to be discharged from a debts in whole or in part; or

2.7.1.4    A Party gives notice to any of its creditors that it cannot pay its debts.

2.7.2    “Affiliate” means all other persons or entities which directly or indirectly control or are controlled by or are under common control of a Party or its successors in time from time to time. 

2.7.3    “Applicable Law” means all and any statutes and subordinate legislation and common law; regulations; ordinances and by-laws; directives, codes of practice, circulars, guidance notes, judgments and decisions of any competent authority or any governmental, intergovernmental agency, body, department, or regulatory authority of which compliance is mandatory for that Party.

2.7.4    “Authorised User” means an employee, agent, or independent contractor of the Client, as the case may be, or its Affiliates, who is authorised by the Client and the Provider to use the Services and the Documentation. 

2.7.5    “Business Day” means any day other than a Saturday, Sunday and/or any day which is a federal holiday in the United States or any day on which banking institutions in the State of New York are authorised or required by law to close. 

2.7.6    “Client” means an entity, partnership, organisation or person (including a juristic or a natural person) who uses the Services. 

2.7.7    “Client Data” the data inputted by the Client, Authorised Users, or the Provider on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services and any data generated by, or derived from the Client's use of the Services, whether hosted or stored within the Services or elsewhere.

2.7.8    “Commencement Date” means the date on which the Terms and Conditions become effective, that being the earlier date on which (i) the Client starts using the Services or (ii) the Client signs the Sales Order (if applicable). 

2.7.9    “Confidential Information” means these Terms and Conditions and any and all information relating to the business conducted by the Parties, its subsidiaries or affiliate entities which by its nature or content is identifiable as, or could reasonably be expected to be, confidential and/or proprietary and includes but is not limited to: all software and associated material and documentation, all information relating to the Parties past, present and future research and development, the Parties business activities, products, systems, customers, as well as the Parties technical knowledge and trade secrets.

2.7.10    “Data Protection Legislation” means the applicable state-based privacy legislation applicable to the Services.

2.7.11    “Data Subject”, “Personal Data”, “Process”, shall bear the meanings ascribed to each term in the Data Protection Terms and Conditions published on the HeadsUp website.

2.7.12    “Documentation” means the documents, user guides, online help, release notes and training documentations (if any) made available to the Client by the Provider which sets out the description of the Services and the user instructions for the Services. 

2.7.13    “Intellectual Property” shall mean all Intellectual Property Rights, regardless of whether or not such rights are registered or capable of being registered, including but not limited to patents, copyrights, designs, trademarks (including goodwill in those trademarks), service marks, domain names, logos, inventions (whether patentable or not and whether registered or not) and any right to have Confidential Information kept confidential; any application or right to apply for the registration of any patent, copyright, design, trademark or domain name; know-how including confidential industrial and commercial information and techniques in any form, utility models database rights; all software and associated material and Documentation including the source code and related documents; and all rights of a similar nature which may subsist worldwide.

2.7.14    “Parties” means the Provider and the Client collectively, and “Party” means either one of them as the context indicates. 

2.7.15    “Provider” means HeadsUp Inc. a private company with limited liability duly incorporated in accordance with the laws of the state of Delaware and includes all its Affiliates.

2.7.16    “Sales Order” means the order provided by the Provider to the Client (if applicable) which sets out the Services, the Subscription Fees and further terms, including further payment terms. 

2.7.17    “Services” means the subscription services provided by the Provider to the Client under the Terms and Conditions, including the access and use of the System if required (whether direct or indirect and whether limited or unlimited, as the case may be). 

2.7.18    “Software” means the HeadsUp software, including the source code and related materials and Documentation.

2.7.19    “Subscription Fees” means the fees payable by the Client to the Provider for the User Subscriptions. 

2.7.20    “Subscription Term” means the period during which the Client will have access and use of the System through the Services.

2.7.21    “System” means the HeadsUp systems(i.e. HeadsUp CX and/or HeadsUp AX, as applicable), including without limitation future updates, modifications, and upgrades thereto and any documents associated with the System, vested in and implemented by the Provider to provide the Services to the Client. 

2.7.22    “Terms and Conditions” means these Terms and Conditions, read with the Sales Order (if applicable) and may include any additional terms that may be incorporated as published on the website from time to time. 

2.7.23    “User Subscriptions” means the user subscriptions purchased by the Client pursuant to clause 6 which entitles the Authorised Users to access and use the Services and the Documentation in accordance with the Terms and Conditions. 

3.    APPOINTMENT

3.1    By making use of the Services and/or by signing the Sales Order (if applicable), you appoint the Provider to provide the Services and the Provider accepts such appointment in terms of the provisions of these Terms and Conditions. By using the Systems or Services and/or by signing the Sales Order (if applicable), you acknowledge that you have read through, understand and agree to be bound by these Terms and Conditions. 

3.2    These Terms and Conditions are subject to change at the sole discretion of the Provider. The most recent version of the Terms and Conditions, available on our website, governs your use of the Services. Each time you use the Services, you are bound by the current Terms and Conditions. It is your responsibility to familiarise yourself with the prevailing Terms and Conditions before using the Services. 

3.3    If you enter into these Terms and Conditions on behalf of a company or entity, the term “Client” or ”you” refers to that company, which undertakes to comply with these Terms and Conditions. If you act for and on behalf of a company in your use and dealings with the Provider, you confirm that you have all the necessary legal grounds, authority and permissions to act on behalf of that company, and that you have followed all internal regulations and any other legally binding documents to bind the company to these Terms and Conditions. 

3.4    In the event of a conflict between these Terms and Conditions and the terms set out in the Sales Order (if applicable), the provisions of the Sales Order shall prevail.

4.    COMMENCEMENT, DURATION AND TERMINATION

4.1    The Terms and Conditions shall become effective and binding on the Parties on the Commencement Date and shall continue for an indefinite term, subject to the Subscription Term. 

4.2    The Client shall be entitled to terminate the Terms and Conditions by furnishing the Provider with 30 (thirty) days’ written notice. In the event of such termination for convenience, the Client shall be liable to the Provider for any unpaid fees for the unexpired number of months in the applicable Subscription Term at the time of such termination. 

4.3    Without affecting any other right or remedy available to it, either Party may terminate the Terms and Conditions with immediate effect by giving written notice to the other Party if the other Party: 

4.3.1    Fails to pay any amount due under the Terms and Conditions on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; 

4.3.2    Is liquidated or wound up (whether provisionally or finally and whether voluntarily or by compulsion) or is subject to any such similar procedure in another jurisdiction;

4.3.3    Is subject to business rescue or similar proceedings; 

4.3.4    Commits an Act of Insolvency; 

4.3.5    Suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; 

4.3.6    Commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

4.3.7    Is submitted to an application which is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership); or

4.3.8    Financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the provisions of the Terms and Conditions is in jeopardy.

4.4    On termination of the Terms and Conditions for any reason:

4.4.1    All licences granted under the Terms and Conditions shall terminate on the date of termination of this Terms and Conditions. 

4.4.2    Each Party shall return and make no further use of any equipment, property, Documentation and other items (inclusive of all copies thereof) belonging to the other Party. 

5.    SERVICES

5.1    The Provider shall, for the duration of the Subscription Term, provide the Services and make available the Documentation to the Client in accordance with the provisions of the Terms and Conditions. 

5.2    The Client acknowledges its understanding and acceptance that it is not commercially possible to produce computer software products that are error free, and the Client accepts unconditionally that the Provider does not warrant that the Services are error free or that the Services will be uninterrupted, including without limitation for:

5.2.1    Planned maintenance carried out during the Provider’s maintenance window; and

5.2.2    Unscheduled maintenance. 

6.    USER SUBSCRIPTIONS

6.1    From the Commencement Date, the Provider grants to the Client a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Client’s internal business operations. 

6.2    In relation to the Authorised Users, the Client undertakes that:

6.2.1    The maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

6.2.2    It will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

6.2.3    It shall, no more frequently than once per year, permit the Provider or the Provider’s designated auditor to audit the Services to verify that the Client’s use of the Services does not exceed the number of User Subscriptions purchased by the Client; 

6.2.4    If any of the audits referred to in clause 6.2.3 reveal that the Client has underpaid Subscription Fees to the Provider, then without prejudice to the Provider’s other rights, the Client shall pay to the Provider an amount equal to such underpayment as calculated by the Provider.

6.3    The Client shall not knowingly: 

6.3.1    Distribute or transmit to the Provider, via the Services, any viruses;

6.3.2    Store, access, publish, disseminate, distribute or transmit via the Services any material which:

6.3.2.1    is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

6.3.2.2    facilitates illegal activity;

6.3.2.3    depicts sexually explicit images;

6.3.2.4    promotes unlawful violence;

6.3.2.5    is discriminatory based on race, gender, religious belief, sexual orientation, disability; or

6.3.2.6    is otherwise illegal or causes damage or injury to any person or property;

6.3.3    Attempt to copy, modify, duplicate, replicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

6.3.4    Attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; 

6.3.5    Access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; 

6.3.6    Use the Services and/or Documentation to provide services to third parties;

6.3.7    License, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

6.3.8    Attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 6.

6.4    The Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, if there is any such unauthorised access or use, notify the Provider in writing immediately.

6.5    Subject to additional fees and clause 6.6, the Client may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Provider shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Terms and Conditions.

6.6    If the Client wishes to purchase additional User Subscriptions, the Client shall notify the Provider in writing and the Provider shall activate the additional User Subscriptions within 5 Business Days of the Client’s request.

7.    FEES AND PAYMENT TERMS

7.1    The Client shall be liable for the Subscription Fees and other fees (collectively “the Fees”) which shall be payable in accordance with the relevant payment terms.

7.2    The Fees shall become payable from the Commencement Date. Any delay to the provision of Services caused by the Client, whether directly or indirectly, shall not extend the Commencement Date. 

7.3    The Fees shall escalate in accordance with the latest rates as published on the Provider’s website. The Provider shall endeavour not to increase its fees more than once per annum.

7.4    All Fees shall be paid via payment gateway or electronic funds transfer into the Provider’s nominated bank account, without deduction or set-off, and such payment will be deemed to have been made upon the funds reflecting in the Provider’s nominated bank account.

7.5    The Client shall be liable for all applicable taxes, government charges and foreign exchange fees including, where applicable any sales tax and/or value added tax. 

7.6    All amounts paid by the Client are non-refundable. 

7.7    The Provider shall invoice the Client for the Fees either monthly or annually in advance (as applicable) and the Client shall pay each invoice within 7 days after the date of such invoice. Should the Client fail to pay the Provider, the Provider reserves the right, without prejudice to the Provider’s other rights in law, to:

7.7.1    Limit and/or suspend the functionality of the Services as set out in the Terms and Conditions; and

7.7.2    Charge an interest for any overdue amounts, calculated at the prime rate of interest plus 2%, applicable at the time of non-payment. The amounts overdue by the Client shall be calculated by reference to data recorded by the Provider and not data recorded by the Client.

7.8    All amounts and Fees stated or referred to in these Terms and Conditions shall be payable in US Dollars.

7.9    If, at any time whilst using the Services, the Client exceeds the amount of disk storage space specified in the Documentation, the Provider shall charge the Client, and the Client shall pay, the Provider’s then current excess data storage fees. 

8.    CLIENT’S OBLIGATIONS

The Client shall:

8.1    Ensure that if any Affiliates of the Client uses the Services in terms of these Terms and Conditions, that each such Affiliate company agrees to be bound by the provisions of the Terms and Conditions. The Client specifically agrees that it shall be responsible and liable for all acts and omissions of that Affiliate company in terms of these Terms and Conditions. 

8.2    At all times comply with the data protection requirements as may be applicable to the Services in terms of the Applicable Law, including the Data Protection Legislation. The Client shall not, in its use of the Services, cause nuisance, annoyance, inconvenience, or property damage to the Provider or a third party. 

8.3    At all times ensure that prior to providing the Provider with any Personal Data, it shall have obtained all consents that may be required in terms of the relevant Data Protection Legislation.

8.4    Comply with all Applicable Law with respect to its activities under the Terms and Conditions. 

8.5    Ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time. 

8.6    Advise the Provider immediately of any infringement of the Provider’s copyright, Intellectual Property Rights, Confidential Information and all components thereof. 

8.7    Take all such steps as may be necessary to ensure and protect the confidentiality of the Provider’s Intellectual Property Rights and all components thereof. 

8.8    Pay the Provider in accordance with the Fees set out in the relevant invoice. 

8.9    Provide all relevant information as and when required by the Provider in order to give effect to the Services. The Client shall not unreasonably withhold any information required by the Provider to perform its duties as set out in the Terms and Conditions. 

8.10    Operate the Systems in a proper, professional manner and not cause any damage to same.

8.11    Provide the Provider with:

8.11.1    All necessary cooperation in relation to the Terms and Conditions; and

8.11.2    All necessary access to such information as may be required by the Provider, in order to provide the Services, including but not limited to Client Data, security access information and configuration services. 

9.    INTELLECTUAL PROPERTY RIGHTS

9.1    The Client acknowledges that the Services and Systems, including without limitation the HeadsUp Software, the Documentation and any other related materials and documents, constitute the Provider’s original work and that copyright and any other Intellectual Property Rights including all rights, title and interest in any Intellectual Property is vested in the Provider exclusively. 

9.2    The Client agrees that neither it nor its present or future employees, agents or contractors shall, during the Terms and Conditions or at any time thereafter sell, let, publish, adapt or attempt to adapt, copy or duplicate or reproduce or attempt to do so, disassemble, reverse engineer, or otherwise infringe on the Provider’s Intellectual Property Rights. 

9.3    Any modification, development or upgrade of the Services or Systems or other Intellectual Property Rights vested in the Provider, whether undertaken in conjunction with or by suggestion of the Client, shall vest solely in the Provider notwithstanding the Client’s involvement therein. 

9.4    Notwithstanding anything to the contrary contained in the Terms and Conditions, the Provider shall continue to own the Intellectual Property, and nothing contained in the Terms and Conditions shall be deemed to transfer ownership of any Intellectual Property or Intellectual Property Rights belonging to the Provider to the Client. 
9.5    The Client agrees, when discharging its obligations herein, to identify the Provider’s Intellectual Property Rights as being the invention, innovation, development and proprietary property of the Provider. The Client agrees not to remove any copyright notice, trademark or proprietary legends or identification from the Provider’s Intellectual Property Rights or any documentation relating thereto. 

9.6    The Client understands and unequivocally agrees that its viewing, access and use of the System and Services will be limited to the purpose for which it is intended and that the Client will not use the Provider’s Intellectual Property for any purpose other than for the use of the Services which are expressly and unequivocally authorised by the Provider. 

10.    CONFIDENTIALITY

10.1    For the purposes of the Terms and Conditions, it shall be necessary for the Parties to exchange and obtain certain information. The Party receiving the information must treat and hold as confidential all information which it may receive from the Party disclosing the information. Neither Party shall, during the existence of these Terms and Conditions or at any time after the Terms and Conditions are terminated, use, divulge, disclose, exploit, permit the use of or in any other manner whatsoever use the other Party’s Confidential Information other than as provided or contemplated in the Terms and Conditions.

10.2    The Parties undertake not to disclose any Confidential Information, or part thereof, to any third parties except:

10.2.1    To officers, employees or subcontractors who require such Confidential Information for the purposes of the Terms and Conditions, provided that such officers, employees or subcontractors have agreed to be bound by confidentiality obligations no less stringent than the provisions of the Terms and Conditions;

10.2.2    With prior written consent of the other Party, which consent may be given or withheld in its absolute discretion or given subject to any conditions that the Party requires and without any reasons as to why such consent has been withheld; or

10.2.3    If the Party is required to do so in terms of any law or regulation or by any judicial, governmental, supervisory or regulatory body, court of law or legal process, provided that, where practically possible, sufficient written notice of such request/requirement is given to the Party so as to enable them to defend or protect such disclosure.

10.3    The obligations of each of the Parties in relation to the maintenance and non-disclosure of Confidential Information as set out above, in terms of the Terms and Conditions do not extend to information that is:  

10.3.1    Lawfully in the public domain at the time of disclosure or becomes public knowledge, other than pursuant to a breach of this clause 10 by any Party;

10.3.2    Required by the provisions of any law, statute or regulation, or during any court proceeding, or other rules or regulations of any recognised stock exchange to be disclosed; 

10.3.3    Lawfully disclosed to any Party by a third party who is lawfully in possession of the information and having the lawful right to make such disclosure. 

10.4    The Party disclosing the Confidential Information may, at any time, request the Party receiving such Confidential Information to return or destroy any material containing, pertaining to or relating to the Confidential Information disclosed pursuant to the terms of the Terms and Conditions and may, in addition, request the Party receiving the Confidential Information to furnish a written statement to that effect, including that, upon such return or destruction, such Party has not retained in its possession, or under its control, either directly or indirectly, any such material. 

10.5    This clause is severable from the remainder of the Terms and Conditions and shall remain valid and binding upon the Parties indefinitely, notwithstanding any termination of the Terms and Conditions.

11.    DATA USE AND DATA PROTECTION

11.1    The Provider shall Process the Personal Data of the Client, its customers, employees, contractors, agents and Authorised Users in accordance with the Data Protection Terms and Conditions published on the HeadsUp website. 

11.2    The Client warrants that it has obtained the necessary consents from its Data Subjects for purposes of the Services. 

12.    WARRANTIES

12.1    Each Party hereto warrants that it has the authority necessary to enter into these Terms and Conditions, and that such authority has validly been provided to the signatory, to bind the Client to the Terms and Conditions and to do all things necessary to procure the fulfilment of its obligations in accordance with the Terms and Conditions.

12.2    Should the person or representative not be authorised to bind the Client, or should the Client not have conducted the necessary internal requirements as set out above, the Client nevertheless agrees that by using the Services, the Client has ratified any such lack of authority or failure to undertake the necessary internal requirements, whether actual or purported, as the case may be. 

12.3    The Parties warrant and undertake to and in favour of the other Party that it shall at all times comply with Applicable Law relating to the performance of the Services and it shall not engage in any conduct or behaviour that would be regarded as being anti-competitive, corrupt, deceptive, misleading, unethical or unlawful in terms of Applicable Law; and it shall not do anything that may prejudice or be adverse to the operations, business, and reputation of the other.

12.4    The Client warrants in favour of the Provider that:

12.4.1    It will at all times for the duration of the Terms and Conditions comply with the provisions set forth in the Terms and Conditions. 

12.4.2    It is fully authorised to request and receive the Services.

12.4.3    It has adequate systems and/or procedures to ensure that all information supplied to it by the Provider is kept confidential and secure, and is protected against unlawful intrusion, wrongful alternation, unauthorised disclosure or access by any unauthorised third parties, including online access.

12.4.4    It shall not engage in any conduct or behaviour that would be regarded as being anti-competitive, corrupt, deceptive, misleading, unethical or unlawful in terms of Applicable Law; and it shall not do anything that may prejudice or be adverse to the operations, business, and reputation of the Provider.

12.5    The Provider warrants that it has the knowledge and skill to perform the Services set out in the Terms and Conditions.

12.6    To the extent that any of the above exclusions or restrictions are specifically prohibited by any statute or applicable law that the Client is subject to, such exclusion or restriction shall not apply in the circumstances expressly provided for in such statute or applicable law and to the extent of such prohibition.

13.    LIMITATION OF LIABILITY

13.1    Under no circumstances shall the Provider be liable to the Client (or any party claiming through or on behalf of Client) in respect of any other form of loss or damages of whatsoever kind, whether based on contract, tort or delict (including strict liability), statute, the breach of any warranty, other legal or equitable grounds or otherwise, for indirect, special, incidental, exemplary or consequential damages or loss, loss of anticipated profits, loss of business opportunity, loss of business data/information or loss of contracts by either the Client or any third party arising from the use of the Services or any other provision of the Terms and Conditions.

13.2    The Provider shall not be held liable for any fault that occurs or is discovered in the hardware or other software used by the Client nor does the Provider warrant the integrity of any third-party data or electronic information, including but not limited to converted data.

13.3    Notwithstanding anything contained herein, the Provider’s aggregate liability shall be limited to 3 (three) months’ Fees paid by the Client to the Provider. 

13.4    Without limiting the generality of the foregoing, the Provider shall not be liable for any delay, failure, breakdown or damage caused by software, programs and support services supplied by or obtained by the Client without the consent or knowledge of the Provider; or software or programs modified by the Client or any third party not authorized to do so in terms of the Terms and Conditions; or the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or if a problem relates to services and/or systems not supported by and/or supplied by the Provider in terms of the Terms and Conditions; or if the Provider determined in its sole discretion that a problem with the System or alleged service failure has occurred as a result of any acts or omissions of the Client or any member of staff of the Client; or the use by the Client of the System or Services other than for those usages as specified by the Provider and/or as defined in the Terms and Conditions and the Quotation; or refusal and/or failure by the Client to upgrade any facilities as instructed by the Provider; or failure by the Client to comply with the requirements set out in the Documentation; or the use of the Systems or Services by the Client in breach of the Terms and Conditions; or if the Client withholds its cooperation and assistance in determining the cause of any problem or if the Client fails to provide the information requested by the Provider to perform its obligations in terms of the Terms and Conditions.

13.5    To the extent that any of the above exclusions or limitations are specifically prohibited by any statute or Applicable Laws that the Client is subject to, such exclusion or limitation shall not apply to the Client in the circumstances expressly provided for in such statute or Applicable Laws and to the extent of such prohibition.

13.6    Notwithstanding any provision in the Terms and Conditions, any claim against the Provider must be instated within 6 (six) months of the cause of action arising from such claim, failing which such claim shall by agreement between the Parties prescribe. 

14.    INDEMNITY

14.1    The Client hereby indemnifies, holds harmless and undertakes to defend the Provider and its officers, directors, employees, agents and contractors (“Indemnified Parties”) from all and any damages, loss and liability whatsoever claimed against the Indemnified Parties (including all associated costs, attorneys’ fees and costs on an indemnity basis, damages and losses and all and any consequential losses incurred by the Indemnified Parties), arising from or connected with:

14.1.1    The use by the Client and/or its employees, officers, directors, agents, contractors and Authorised Users of the Services, the System, any data or reports made available to it by the Provider in terms of the Terms and Conditions.

14.1.2    The Client’s failure to comply with the provisions of the Terms and Conditions, and/or all Applicable Law.

14.1.3    The Client withholding its co-operation and assistance in determining the cause of any problem that may arise with regards to the Services.

14.1.4    The negligence, recklessness, fraudulent behaviour or wilful misconduct of the Client in the performance of its obligations under the Terms and Conditions, as determined in the Provider’s sole discretion.

14.1.5    Any unauthorised disclosure of Personal Data by the Client or by a third party, or any of its employees, officers, contractors or agents.

14.1.6    The use of systems or services not supported by and/or provided by the Provider.

14.1.7    The use by the Client of the Services other than those specified by the Provider in the Terms and Conditions, the Sales Order (if applicable), and/or the Documentation.

14.1.8    Refusal by the Client to upgrade any facilities, as required at the sole discretion of the Provider.

14.1.9    Any conduct or omission caused by an Authorised User which results in any direct or indirect damage to the Provider and/or to a third party. 

14.2    The Provider shall defend the Client against direct damages and losses suffered or incurred by the Client arising directly out of any claim brought against the Client for the infringement of a third party's intellectual property rights in any jurisdiction. 

14.3    If the Provider is required to indemnify the Client under this clause 14, the Client shall:

14.3.1    Notify the Provider in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 14.2) (“IPRs Claim”);

14.3.2    Allow the Provider, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim;

14.3.3    Provide the Provider with such reasonable assistance regarding the IPRs Claim as is required by the Provider; and 

14.3.4    Not make any admission relating to the IPRs Claim or attempt to settle it.

14.4    In the defence or settlement of any claim, the Provider may procure the right for the Client to continue using the Services, replace or modify the Services without a reduction or alteration in functionality so that they become non-infringing.

14.5    In no event shall the Provider, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

14.5.1    A modification of the Services or Documentation by anyone other than the Provider or its agents, subcontractors or partners; or

14.5.2    The Client’s use of the Services or Documentation otherwise than in accordance with the Documentation; or

14.5.3    The Client’s use of the affected Services or Documentation after notice of the alleged or actual infringement from the Provider or any appropriate authority. 

15.    FORCE MAJEURE

The Provider shall have no liability to the Client under the Terms and Conditions if it is prevented from or delayed in performing its obligations under the Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, fire, flood or storm. 

16.    BREACH

16.1    Should any Party (“the Defaulting Party”) commit a breach of any provision of the Terms and Conditions and fail to remedy such breach within 10 (ten) Business Days from the date of written notice from the other Party to the Terms and Conditions (“the Aggrieved Party”) calling upon it to do so, the Aggrieved Party shall, without prejudice to any other rights in law and in terms of the Terms and Conditions, have the right to cancel the Terms and Conditions, claim specific performance by the Defaulting Party of its obligations at the date of default and to take whatever action as may be necessary to enforce its rights under the Terms and Conditions.

16.2    The foregoing is without prejudice to such other rights as the Aggrieved Party may have in law, provided always that, notwithstanding anything to the contrary contained in the Terms and Conditions, the Aggrieved Party shall not be entitled to cancel the Terms and Conditions for any breach by the Defaulting Party unless:

16.2.1    Such breach is a material breach going to the root of the Terms and Conditions; and

16.2.2    Specific performance is or has become impossible; or

16.2.3    The breach is incapable of being remedied by payment of money, or if it is capable of being remedied by payment in money, the Defaulting Party fails to pay the amount concerned within 10 (ten) Business Days after such amount has been finally determined.

17.    DISPUTE RESOLUTION 

17.1    If any dispute arises out of or in connection with the Terms and Conditions, or related thereto, whether directly or indirectly (“the Dispute”), the Parties shall be obliged to refer the dispute for resolution firstly by way of negotiation and in the event of that failing, by way of mediation. 

17.2    A Dispute shall arise when the issue and the particularity thereof is communicated, in writing, by one Party to another. 

17.3    Within 15 (fifteen) Business Days of the Dispute arising, the Parties shall seek an amicable resolution of same by referring such Dispute to the duly authorised representatives of each of the Parties concerned for its negotiation and resolution (“the Negotiation”). The representatives as nominated by the Parties shall be authorised to, inter alia, to resolve the dispute.

17.4    In the event of the Negotiation failing for whatsoever reason, the Parties shall be obliged, within 15 (fifteen) Business Days of receipt of written notice of such failure, to refer the Dispute for resolution by way of mediation in accordance with the American Arbitration Association (“the Mediation”). 

17.5    All proceedings held by the Parties for the purpose of resolving disputes shall be held in private except as permitted or required by any other provision of the Terms and Conditions, and shall not be open to third parties, it being agreed that for the purposes of the Terms and Conditions the record and outcome of any proceedings shall also constitute Confidential Information of each Party hereto and as such will not be open to third parties.

17.6    This clause shall remain in effect even if the Terms and Conditions terminate, are nullified or cancelled for whatsoever reason or cause.

17.7    During the currency of any dispute resolution process, the Provider and Client shall continue to perform their respective obligations under the Terms and Conditions until such time that the Dispute has been fully resolved.

17.8    Notwithstanding what is set out above, in the event of breach as a result of non-payment by the Client for any reason whatsoever, the Provider may, at its sole discretion proceed by way of court action for the recovery of such payment, without being required to attend at Negotiation and/or Mediation first.

18.    GOVERNING LAW AND JURISDICTION

18.1    The Terms and Conditions and any Dispute or claim arising out of, or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the United States of America, and more specifically the State law of Delaware, unless otherwise provided by the Provider.

19.    NOTICES

19.1    For the purposes of giving or sending any notice provided for or required under these Terms and Conditions, the Parties agree to use the following addresses:

19.1.1    For the Provider: The email address as published on the Providers website from time to time.

19.1.2    For the User: The email address provided during account registration or updated in the user's account settings.

19.2    Either Party may change their chosen address for notices by updating their information on the website or by contacting the other Party in writing. Changes to the Provider’s chosen address will be posted on the website and will be effective immediately. Changes to the User's chosen address will be effective 5 (five) Business Days after receipt of the notice detailing the change. 

19.3    Unless otherwise specified in these Terms and Conditions, any notice given by one Party to the other ("Addressee") shall be deemed to have been received as follows:

19.3.1    Notices sent by email shall be deemed received on the next Business Day following the day of delivery.

19.3.2    Notices posted on the Website shall be deemed received on the date of posting.

19.3.3    Notices sent through other electronic means (such as in-app notifications) shall be deemed received when the Addressee has the ability to access and read the notice.


20.    NON-SOLICITATION

The Client shall not, for the duration of the Terms and Conditions and for a period of 12 (twelve) months after the termination of the Terms and Conditions, for whatsoever reason, furnish any information or advice to anyone else which results in an employee, representative and/or agent of the Provider who was involved in the implementation or execution of the Terms and Conditions to terminate his or her employment with that Party and/or any other contractual relationship, in order to become employed by, or directly or indirectly interested in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the Client.

21.    GENERAL

21.1    The Terms and Conditions constitutes the entire contract between the Parties and the terms, as well as the terms contained in the Sales Order, and any additional terms that may be incorporated as published on the website from time to time, govern the whole relationship between the Parties. No representation which is not contained in the Terms and Conditions shall be binding on and enforceable against the Parties. 

21.2    No alteration, variation, amendment or purported consensual cancellation of the Terms and Conditions shall be of any force or effect unless reduced to writing and signed by the Parties.

21.3    No relaxation, extension of time, latitude or indulgence which any Party ("the Grantor") may show, grant or allow to the other Party ("the Grantee") shall, in any way, constitute a waiver by the Grantor of any of its rights in terms of the Terms and Conditions and the Grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the Grantee which may have then already arisen or which may arise thereafter.

21.4    If any particular provision and/or term of the Terms and Conditions is found to be defective or unenforceable or is cancelled for any reason, by any competent Court, then the remaining provisions and/or terms shall continue to be of full force and effect. 

21.5    The Client shall not be entitled to cede, assign or otherwise transfer any of its rights, interests or obligations under, and in terms of, the Terms and Conditions without the prior written consent of the Provider, which consent shall not be unreasonably withheld. The Provider shall be entitled to cede, assign or otherwise transfer any of its rights, interests or obligations under, and in terms of, the Terms and Conditions.

21.6    Nothing in the Terms and Conditions is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as an agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.