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| SUBSCRIPTION | Please read the following terms and conditions carefully before accessing or using the SERVICE. By accessing or using the SERVICE, you agree to be bound by these terms and conditions.
1 INTERPRETATION
The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings –
1.1 "AGREEMENT" - means these terms and conditions, and all annexures hereto (as set out in the completed and accepted PPO application form), as may be amended from time to time in accordance with the provisions of this AGREEMENT;
1.2 "BUSINESS DAY" - means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.3 "CPI" - means the weighted average of the consumer price index (for all areas and all items) of the Republic of South Africa as published by Statistics South Africa (or its successor in title) (statistical release PO141.7) from time to time;
1.4 "LICENSEE" – means the entity that has subscribed to the SERVICE;
1.5 "EFFECTIVE DATE" – means in respect of each SERVICE, the date of acceptance of this AGREEMENT, being the date on which the PPO INSTANCE REQUIRED FORM is actioned by PPO and the SERVICE is made available to the USER;
1.6 “PPO INSTANCE REQUIRED FORM” – means the LICENSEE’S electronic application requesting the SERVICE;
1.7 "PPO SITE” – means the websites in the ppolive.com domain (e.g. www.ppolive.com), from which the SERVICE will be accessed by the LICENSEE for the purposes of utilising such SERVICE;
1.8 “PPO” - means Post Vision Technology (Pty) Limited, (Registration Number 2004/019163/07) and the PPO Partners;
1.9 “PPO Partners” – means affiliates, and authorised resellers, distributors, partners and/or vendors of Post Vision Technology (Pty) Limited;
1.10 "SERVICE” – means the PPO product which is accessed through the PPO SITE;
1.11 “USER/S” - means the named users that are authorised to access and use the SERVICE in terms of this AGREEMENT;
1.12 “HELP FILE” – means the electronic manual available on the PPO SITE.
1.13 where any number of days is to be calculated, such number shall be calculated as excluding the first day and including the last day . If the last day does not fall on a BUSINESS DAY, the last day shall be deemed to fall on the next BUSINESS DAY;
1.14 any reference to days (other than a reference to BUSINESS DAYS), months or years shall be a reference to calendar days, months or years, as the case may be;
2 USE OF THE SERVICE
PPO hereby allows the LICENSEE to use the SERVICE, subject to the terms and conditions of this AGREEMENT, on a non-exclusive and non-transferable basis.
3 OBLIGATIONS OF PPO
3.1 For the duration of this AGREEMENT, PPO shall provide the LICENSEE with the following maintenance and support services in relation to the SERVICE:
3.1.1 PPO will provide adequately skilled technical staff to provide technical assistance and ongoing technical expertise, support and advice to the LICENSEE on BUSINESS DAYS for the purpose of enabling the LICENSEE to adequately use the SERVICE.
3.1.2 PPO will maintain the SERVICE by:
3.1.2.1 diagnosing problems; and
3.1.2.2 correcting legitimate errors.
3.2 Within two BUSINESS DAYS of logging a complaint or problem regarding the SERVICE, PPO will respond electronically.
3.3 Other than the SERVICES listed, PPO shall not be obliged to provide any other maintenance and support services to the LICENSEE in relation to the SERVICE and should PPO elect to do so, such additional services shall be charged to the LICENSEE in accordance with PPO’s standard rates.
3.4 For the avoidance of doubt it is recorded that services rendered by PPO in connection with the following shall not form part of the obligations of PPO and shall be charged at PPO’s standard rates:
3.4.1 connection problems related to accessing the SERVICE where such problems are related to the LICENSEE’s infrastructure or Internet Service Provider.support of other software used in connection with accessing the service, accessories, attachments, machines, systems or other devices not supplied by PPO;
3.4.2 rectification of lost or corrupted data arising for any reason other than PPO's gross negligence. PPO will endeavour to recover lost or corrupted data electronically using application functionality, utilities or operating system commands, but it will not do so by using manual capture methods or the like;
3.4.3 attending on faults caused by the LICENSEE utilising the SERVICE outside the parameters set by PPO, including but not limited to:
3.4.3.1 utilisation outside the design or other specifications in regard to the SERVICE; and
3.4.3.2 utilisation outside the permission set forth in this AGREEMENT or in any documentation or manuals supplied by PPO in respect of the SERVICE;
3.4.4 loss or damage caused directly or indirectly by the negligent and/or incorrect use of the SERVICE by the LICENSEE;
3.4.5 diagnosis and/or rectification of problems not associated with the SERVICE;
3.4.6 any additional training which may be required by the LICENSEE in respect of the SERVICE.
3.5 PPO 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 as a result of PPO’s failure, delay or inability to perform any of the maintenance and support services.
4 OBLIGATIONS OF LICENSEE
4.1 The LICENSEE shall at its cost -
4.1.1 provide its own hardware, software and all communications equipment required to connect to and access the SERVICE (including any costs of ISP, or telephone operator in regard thereto);
4.1.2 provide its own security policies, systems and procedures, so to ensure the integrity and security of its data (including anti-virus software, password policies and employee termination procedures);
4.1.3 use the SERVICE in accordance with any instructions that are set out on the PPO SITE from time to time;
4.1.4 use the SERVICE solely for the purpose for which it is designated or intended;
4.1.5 immediately notify PPO of any defects or faults in the SERVICE.
4.1.6 immediately notify PPO of any suspected security breach or compromised account details.
4.2 The LICENSEE warrants that it understands the logical access mechanisms associated with the SERVICE to limit access to data to authorised users. It is the sole responsibility of the LICENSEE to configure the required logical access controls.
4.3 The LICENSEE undertakes, for the duration of this AGREEMENT, that it will not procure the provision of maintenance, support and training services or any other services in respect of the SERVICE from any third party expressly prohibited by PPO in writing from time to time.
4.4 The LICENSEE shall ensure that its access to the PPO SITE and the use of the SERVICE is not illegal or prohibited by laws that apply to it. The PPO SITE may not satisfy the laws of every country. It is the LICENSEE’s responsibility to ensure whether the PPO SITE and the use of the SERVICE is not contrary to the laws of the jurisdiction where it operates or is based.
5 TERM AND TERMINATION
5.1 In respect of the SERVICE, this AGREEMENT shall commence on the EFFECTIVE DATE and shall continue thereafter indefinitely, until terminated by either party giving the other at least ninety (90) days prior written notice of termination.
5.2 Notwithstanding any other provision of this AGREEMENT, on termination of this AGREEMENT for any reason whatsoever ("termination date") -
5.2.1 any amounts due and owing to PPO shall immediately be paid to PPO; and
5.2.2 PPO shall be entitled to permanently delete and destroy all copies of the LICENSEE’s data and documentation.
6 FEES AND PAYMENT
6.1 In consideration for the access to and use of the SERVICE, the LICENSEE shall pay to PPO fees monthly calculated per USER, and based on the maximum number of licensed USERS whether or not they accessed or used the SERVICE during that month.
6.2 PPO shall charge the LICENSEE in accordance with PPO’s standard development rates, from time to time, for any customisation and development work that may be commissioned by the LICENSEE.
6.3 All fees and charges are payable by the LICENSEE without deduction or set off of any nature, free of exchange, bank costs and other charges.
6.4 PPO shall be entitled to increase all rates, fees and charges annually on the 28th of February every year, in accordance with the published CPI% (CPI percentage) or 10% (ten percent), whichever is higher.
6.5 Unless otherwise clearly stipulated, all fees and charges payable under this AGREEMENT are exclusive of VAT and any other statutory levies, taxes and imposts (collectively referred to as “taxes”), and such taxes shall be paid by the LICENSEE.
6.6 PPO shall be entitled, on or before the first day of each month, to e-mail the LICENSEE, at the e-mail address provided hereto, an electronic invoice setting out the amount due by the LICENSEE to PPO. The LICENSEE shall pay the full amount set out in each invoice furnished by PPO to it within 30 (thirty) days of receipt of such invoice by electronic funds transfer into such bank account as may be nominated by PPO in writing from time to time.
6.7 The LICENSEE shall not under any circumstances be entitled to withhold payment of any amount due under this AGREEMENT.
6.8 In the event that the LICENSEE fails to make due and timeous payment of any amount owing to PPO under this AGREEMENT-
6.8.1 PPO shall be entitled to suspend the use of the SERVICE and/or the supply of all maintenance and support services, until such time as the LICENSEE has paid such fees, including any interest which may have accrued thereon;
6.8.2 PPO shall have no obligation to preserve any of the LICENSEE’S data that may have been captured by using the SERVICE; and
6.8.3 such amount shall bear interest at the prime rate plus 2% (two percent) from the due date until payment thereof has been received by PPO in full. For the purposes of this clause, the prime rate shall mean the prime bank overdraft rate as charged by the Standard Bank of South Africa Limited to its corporate customers in respect of overdraft facilities, calculated and compounded monthly in arrear, as certified by any manager of such bank whose appointment and designation it shall not be necessary to prove.
6.9 Should any dispute arise out of the provisions of this clause and failing agreement between the parties, a certificate under the hand of PPO’s auditor shall be final and binding on the parties.
7 INTELLECTUAL PROPERTY
7.1 All right and title in and to the SERVICE, including without limitation any and all of the trade names, trademarks, copyrights, source codes, and other intellectual property rights used or embodied in or in connection with the SERVICE, including any documentation or manuals in relation thereto, shall be and remain the sole property of PPO and no intellectual property rights therein are granted or assigned under this AGREEMENT. The LICENSEE shall not at any time in any way question or dispute the ownership of PPO of any such item and undertakes not to infringe or prejudice any rights of PPO in and to the SERVICE.
7.2 In the event that new copyright, inventions, designs or processes evolve in the performance of or as a result of this AGREEMENT, the LICENSEE acknowledges that such new inventions, designs or processes shall be the property of PPO unless otherwise agreed to in writing by PPO.
7.3 Neither party shall acquire any right, title or interest (without the prior written consent of the other party) entitling it to use the name, service marks, trademarks or logos of the other. The parties undertake in favour of one another not to perform any act, which would injure the reputation or goodwill attaching to their respective names and trademarks or which would prejudice their rights in and to such names and trademarks.
8 CONFIDENTIALITY
8.1 The SERVICE and all information, data, drawings, documentation, manuals, source and object codes relating thereto (collectively referred to as the "trade secrets") are proprietary to PPO and constitute trade secrets and confidential information of PPO.
8.2 Each party shall, for the duration of this AGREEMENT, keep all written instructions, drawings, notes, memoranda, manuals or records and any trade secrets of the other party which comes into its possession, in strict confidence and will not divulge any such information to any third party or use any such information other than as contemplated in this AGREEMENT.
8.3 The LICENSEE further agrees that it shall not attempt to and shall not, directly or indirectly, modify, vary, enhance, decompile, disassemble, reverse, engineer, copy, sell, lease, licence, sub-licence or otherwise deal with the SERVICE or any part, variation, modification, copies, releases, versions or enhancements thereof or any supporting software or have any software or other programme written or developed for it based on any confidential information or trade secrets supplied to it by PPO or which it becomes possessed of pursuant to this AGREEMENT, save and except with the prior written consent of PPO.
9 DATA PROTECTION
9.1 PPO acknowledges that in providing the SERVICE to the LICENSEE, PPO may be exposed to certain data of the LICENSEE (“DATA”).
9.2 The parties specifically record that all DATA provided or to which PPO may be exposed, shall constitute Confidential Information and where applicable, intellectual property belonging to the LICENSEE.
9.3 PPO hereby warrants and undertakes that it shall not, at any time, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use DATA for any purpose other than to the extent necessary to provide the SERVICE to the LICENSEE, without the express prior written consent of the LICENSEE.
9.4 PPO further warrants that it shall ensure that all its systems and operations which it uses to provide the SERVICE, including all systems on which DATA is copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the SERVICE, shall at all times be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of data within the industry in which PPO operates.
10 FAIR USE AND USAGE RESTRICTIONS
10.1 The PPO SITE provides for customer data to be accessed programmatically via a number of mechanisms including programmatic web access, web services, and e-mail based integration. PPO reserves the right to terminate such access or otherwise suspend the SERVICE without notice if such programmatic access, at its sole discretion, is deemed to be excessive, malicious or if it adversely affects its ability to provide the SERVICE.
10.2 The PPO SITE provides the capability for the LICENSEE to store documents. Although there are no restrictions on the number or aggregate size of the documents stored, PPO reserves the right to limit or otherwise prevent the storage of documents if, at its sole discretion such document storage does not constitute fair use.
10.3 The SERVICE may not be accessed by a direct competitor of PPO (or an employee, contractor or agent thereof) without the prior written consent of PPO.
11 WARRANTIES
11.1 PPO warrants to the LICENSEE that:
11.1.1 it has the right to grant to the LICENSEE the rights granted in this AGREEMENT;
11.1.2 it has the necessary resources and skills to comply with its obligations in terms of this AGREEMENT;
11.1.3 the SERVICE will perform in accordance with the description set out in the HELP FILE on the EFFECTIVE DATE .
11.2 No other warranties, whether express, implied in law or residual, including, without limitation, the warranties of merchantability and fitness for a particular purpose of the SERVICE, are made by PPO.
12 LIMITATION OF LIABILITY
12.1 Neither party shall have any claim against the other in respect of any loss, claim, action, damage, or expense suffered or sustained by the other party pursuant to a breach by that party of its obligations under this AGREEMENT, unless such loss, claim, action, damage or expense arises out or is attributable to a negligent act or omission on the part of the other party.
12.2 Notwithstanding anything to the contrary contained in this AGREEMENT, neither party shall be liable to the other in any circumstances whatsoever for any indirect, contingent or consequential loss (including but not limited to loss of revenue, loss of business, loss of profit and/or loss of data) sustained or incurred by the other party howsoever arising.
12.3 Notwithstanding anything to the contrary contained in this AGREEMENT, PPO’s maximum aggregate liability for any loss, liability, damage or expense of whatsoever nature that may arise in respect of this AGREEMENT shall be limited to the fees payable by the LICENSEE in the previous 3 (THREE) months.
13 DOMICILIUM AND NOTICES
13.1 PPO may give notice by means of a general notice on the Service or electronic mail to the LICENSEE’s e-mail address on record in PPO’s account information. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending.
13.2 LICENSEE may give notice to PPO (such notice shall be deemed given when received by PPO) at any time by electronic mail to support@ppo.co.za.
14 PUBLICITY
For the duration of this AGREEMENT PPO shall be entitled to publish notification of the existence of this AGREEMENT in any list indicating the identity of the LICENSEE as being a LICENSEE of PPO utilising the SERVICE.
15 FORCE MAJEURE
15.1 If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this AGREEMENT by reason of any event constituting force majeure, then the other party shall be relieved of its obligations hereunder during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations under this AGREEMENT during such period.
15.2 An "event of force majeure" shall mean any event or circumstance whatsoever which is not within the reasonable control of that party including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities, the downtime of any external line.
15.3 Should the force majeure continue for a period of longer than (30) thirty days, either party may cancel this AGREEMENT.
16 ASSIGNMENT
16.1 PPO shall be entitled to transfer all or any of its rights or obligations in terms of this AGREEMENT without the prior written consent of the LICENSEE, provided that, in the event of the transfer of obligations, the assignee is capable of fulfilling PPO’s obligations under this AGREEMENT .
16.2 The LICENSEE may not cede, assign or otherwise transfer (collectively "transfer") any of its rights and/or obligations under this AGREEMENT to another party.
17 APPLICABLE LAW AND JURISDICTION
17.1 Save as otherwise provided herein, the parties hereby consent and submit to the non-exclusive jurisdiction of the North Gauteng Division of the High Court of the Republic of South Africa for the purpose of all or any legal proceedings arising from or concerning this AGREEMENT.
17.2 This AGREEMENT (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the parties in terms of and arising out of the conclusion, breach and termination of the provisions of this AGREEMENT) shall be interpreted and governed in all respects by the laws of the Republic of South Africa.
17.3 This AGREEMENT constitutes the sole record of the agreement between the parties in regard to the subject matter thereof, and supersedes all previous agreements, understandings and arrangements between the parties, whether written or oral.
17.4 Neither party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein.
17.5 No indulgence which either party may grant to the other shall constitute a waiver of any of the rights of the grantor.
18 AMENDMENTS
PPO reserves the right to amend the terms and conditions of this AGREEMENT at any time without prior notice. The LICENSEE shall be informed of such amendments by e-mail or by notice on the PPO SITE.
Last updated on : 2011/09/16 |
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