These are the general terms of our relationship with you. They cover any transactions where we provide services to you. Under these terms:
An order is a separate document or form that contains the commercial terms of each specific transaction and incorporates these terms and includes the proposal.
2.1. Composition. The agreement consists of these terms of service and any orders or any other specific terms applicable to the services.
2.2. Definitions. In the agreement, unless the context indicates otherwise, the following terms shall have themeanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised
business hours means our normal business hours on business days
effective date means the first business day following the date on which this agreement is signed by the party signing last in time
day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays
services means any service we or related persons provide to you under the agreement as fully described in the proposal
sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives
we, us, or our means the service provider
writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email
you, you or your means the customer
2.3. Interpretation. The following rules apply to the interpretation of the agreement:
2.4. Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in the relevant order or other specific terms.
2.5. Conflict. If there is a conflict of meaning between these terms and any word or phrase in an order or other specific
3.1. This agreement shall commence on the effective date or these terms start whenever you accept them by:
and continue until terminated.
4.1. Placing orders. You place orders with us whenever you order or start using the services through the website or application. These orders are offers to us to buy our services.
4.2. Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.
4.3. Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.
4.4. Cancellations. We may cancel any order, but we will refund any money you have paid in relation to that particular order if we do.
4.5. Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.
4.6. Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.
5.1. Right. We grant you a right to use the services subject to the following limitations:
5.2. Breach. We may cancel your right if you breach the agreement.
6.1. Basis. We provide the online services to you on the following basis:
6.2. Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:
6.3. Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.
7.1. Definition. Your data is any data belonging to you or your customer that:
but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.
7.2. You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.
7.3. We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.
7.4. Responsibility. We take the protection of your data very seriously and will always do everything in our power to protect it. We will
7.5. Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that:
7.6. Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.
8.1. Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.
8.2. Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:
8.3. End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:
8.4. Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.
8.5. Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.
9.1. Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.
9.2. Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.
9.3. Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.
9.4. Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.
9.5. Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.
9.6. Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.
You will not contract with any of our personnel, other than through us, who were involved in providing services under an order for the duration of that order or for 12 calendar months after its termination.
11.1. Payment. You will pay us the fee due for the services provided to you within 30 (thirty) calendar days after receiving the month end statement
Payment will be made in the manner agreed to between the parties in writing. You may not withholdpayment to us for any reason.
11.2. Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.
11.3. Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:
Interest will be payable on a claim for damages from when the damages were suffered.
11.4. Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.
11.5. Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.
11.6. Tax. All fees exclude any tax (unless indicated otherwise), which you will pay where applicable in addition to the fees.
11.7. Payment profile. We may provide any registered credit bureau with information about your payment of amounts.
12.1. Service warranties. We warrant that we will:
12.2. General warranties. We warrant further that we:
13.1. Disclaimer. Subject to our warranties provided in terms of this Agreement, You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause.
13.2. Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.
14.1. Agreement warranties. You warrant that:
14.2. Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.
15.1. Direct damages limited. Either party is liable to the other for any direct damages that the services may cause up to the total amount of fees that you have already paid for the services.
15.2. Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.
15.3. Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.
16.1. Breach. If either party
16.2. Suspension. We may immediately suspend your right to use the services if:
We may need to terminate the agreement immediately if we:
Otherwise we can terminate on 30 days written notice.
If we need to terminate, we will give you as much notice as reasonably possible in writing.
18.1. Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.
18.2. Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.
18.3. No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.
19.1. Governing Law. For businesses contracting via ChannelCenter PTY LTD South African law governs this agreement and for businesses contracting through ChannelCenter (UK) Limited Scottish law governs this agreement.
19.2. Mediation. If negotiation fails, and the contract is governed by South African law, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means theArbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead). If negotiation fails, and the contract is governed by Scottish law, the parties must refer the dispute to mediation under the code of practice as laid out by Scottish Mediation.
19.3. Arbitration. If mediation fails and the contract is governed under South African law, 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 Cape Town. 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. If mediation fails, and the contract is governed by Scottish law, the parties must refer the dispute to arbitration under Scottish Arbitration Rules (forming Schedule 1) to the Arbitration (Scotland) Act 2010 or its successor act.
19.4. Jurisdiction. Should the contract be governed under South African law, 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. Should the contact be governed under Scottish law, you consent to the jurisdiction of the Scottish Sheriffs 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.
19.5. Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognized and appropriate forum for arbitration that is accessible to both parties.
19.6. Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.
19.7. Beyond control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.
19.8. Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.
19.9. Relationship. The agreement does not create an employment relationship between the parties.
19.10. Entire agreement. The agreement is the entire agreement between the parties on the subject.
19.11. Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future services orders. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
19.12. Waiver. Any favour we may allow you will not affect any of our rights against you.
19.13. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.
