WeconnectU (Pty) LTD
TERMS AND CONDITIONS OF SERVICE AND USE
1 RECITALS
WeconnectU has developed certain software applications and platforms which it makes available to subscribers via the Internet on a subscription basis for the purpose of providing solutions for the property management industry.
1.1 The Customer wishes to use WeconnectU’s service in its business operations.
1.2 WeconnectU has agreed to provide, and the Customer has agreed to take and pay for WeconnectU’s service subject to the terms and conditions of this agreement including any and all annexures hereto as well as the Software Proposal Agreement.
2 INTERPRETATION
The headings of the clauses in this Agreement are for purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention appears –
2.1 Words importing any on gender includes all other genders;
2.2 Words importing the singular includes the plural and vice versa.
2.3 Words importing a natural person includes juristic persons (corporate or unincorporated)
and vice versa.
2.4 A reference to statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5 References to clauses, and annexures are to the clauses and annexures of this Agreement; references to paragraphs are to paragraphs of the relevant annexures to this Agreement.
2.6 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
2.7 When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first day inclusively of the last day unless the last day is not a business day, in which case the last day shall be the next succeeding business day.
2.8 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement 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 this.
2.9 The terms and conditions of this Agreement are to be read and interpreted in conjunction with the WeconnectU Software Proposal Agreement and any and all annexures thereto.
2.10 Any reference in this Agreement to a “User” shall include references to a “Customer” and “Client” as well as all registered Users, and these terms are used interchangeably throughout the Agreement and the Software Proposal Agreement. Any reference to the actions of a specific User shall apply to the Customer.
3 DEFINITIONS
In this Agreement, unless the context indicates otherwise, the following words shall have the following meanings:
3.1 “AFSA” means the Arbitration Foundation of Southern Africa;
3.2 “Agreement” means this software service agreement and any schedules and annexures thereto;
3.3 “Authorised Users” means those individuals who are authorised to use the Services and the Documentation provided by WeconnectU (pty) Ltd, as further described in clause 4;
3.4 “Confidential Information” means all information exchanged between the Parties to this Agreement, whether in writing, electronically or orally, including information on WeconnectU web-based application. It includes all information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by a Party, or information which the receiving Party knows or reasonably should have known is of a proprietary or confidential nature;
3.5 “Customer Data” means the data inputted by the Customer, Authorised Users, or WeconnectU on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, and includes (without limitation) Personal Information;
3.6 “Documentation” means the document made available to the Customer by WeconnectU online via www.weconnectu.co.za or such other web address notified by WeconnectU to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
3.7 “Intellectual Property Rights” means all the rights in and to Intellectual Property including (without limitation) the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any Confidential Information or processes relating to that subject matter;
3.8 “Party” means either WeconnectU or the Customer, and “Parties” means both WeconnectU and the Customer;
3.9 “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013 (“POPI”), and any applicable law in South Africa and/or in any other jurisdiction where the Services are provided and/or used;
3.10 “Services” means the subscription services provided by WeconnectU to the Customer under this Agreement via www.weconnectu.co.za or any other website notified to the Customer by WeconnectU from time to time, as more particularly described in the Documentation;
3.11 “Subscription Fees” means the subscription fees payable by the Customer to WeconnectU for the User Subscriptions, as set out in Software Proposal Agreement and all annexures thereto;
3.12 “Subscription Term” means the Initial Subscription Term till the date of termination;
3.13 “Support Services Policy” means WeconnectU’s policy for providing support in relation to the Services as made available at www.weconnectu.co.za;
3.14 “User Subscriptions” means the user subscriptions purchased by the Customer pursuant to clause 9.1, which entitles Authorised Users to access and use the Services and the Documentation in accordance with this Agreement; and
3.15 “Virus” means a device or thing (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other
service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
4 USER SUBSCRIPTIONS
4.1 Subject to the Customer purchasing the User Subscriptions in accordance with the terms and conditions of this Agreement, WeconnectU hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
4.2 In relation to the Authorised Users, the Customer undertakes that:
4.2.1 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User;
4.2.2 each Authorised User shall keep a secure password for his use of the Services and Documentation and shall keep that password confidential; and
4.3 The Customer shall not access, store, distribute, or transmit any Viruses, or any material during its use of the Services that:
4.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; and WeconnectU reserves the right to disable the Customer’s access to any material that breaches the provisions of this clause.
4.4 The Customer shall not:
4.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:
4.4.2 and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, 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
4.4.3 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
4.5 In the event that WeconnectU becomes aware that any password has been provided to any individual who is not an authorised user, then without prejudice to WeconnectU’s other rights, WeconnectU may disable such passwords and refuse to issue any new passwords to any
such individual.
4.6 It is the sole responsibility of the User to ensure that its username and password are secured at all times as the User is responsible for all activities which take place on its account.
4.7 The Customer shall prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify WeconnectU.
4.8 WeconnectU shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the loss or liability resulting from the unauthorised use or misuse of the User’s username or password.
5 SERVICES
5.1 WeconnectU shall, during the Subscription Term, provide the Services and make available the Documentation to the customer on and subject to the terms of this Agreement.
5.2 WeconnectU offers the Service on an ‘as-is’ basis and does not warrant that WeconnectU web-based application and website will meet the User’s requirements. It is the responsibility of the User to ensure that it is satisfied with the Service and that it meets all the desired requirements prior to binding themselves to this Agreement.
5.3 It is the responsibility of the User to ensure that its hardware and software is compatible with the Services prior to signing the Software Proposal Agreement and making use thereof.
5.4 WeconnectU shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for:
5.4.1 planned maintenance carried out during the scheduled maintenance window, the dates and times of which WeconnectU will provide reasonable notice to the User prior to the maintenance being carried out.
5.4.2 unscheduled maintenance performed, as is necessarily required from time to time.
5.5 WeconnectU does not warrant that the Service or Website will be continuously available, or that the User’s use thereof will be uninterrupted, error or bug-free, or that WeconnectU webbased application website server will be free from any form of cyberattack.
5.6 WeconnectU does not warrant that any defect or security breach in the Services can or will be corrected.
5.7 WeconnectU will, as part of the Services provide the Customer with WeconnectU’s standard customer support services during business hours (8:30am to 5:00pm) on weekdays, excluding public holidays and in accordance with WeconnectU’s Support Services Policy. The
End User Support Services is free and provided on a best effort basis but does not include correction of any User mistakes or errors.
6 THIRD PARTY PROVIDERS
6.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
6.2 WeconnectU shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
6.3 The User agrees and acknowledges that WeconnectU shall not be liable in any form whatsoever for the User’s inability to access and make use of WeconnectU web-based application or website due to the fault, negligence or system downtime of any of its third-party providers.
6.4 WeconnectU does not endorse or approve any third-party website, nor the content of any third-party website made available via the Services.
7 WeconnectU’s OBLIGATIONS
7.1 WeconnectU undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to WeconnectU’s instructions, or medication or alteration of the Services by any party other than WeconnectU or WeconnectU’s duly authorised contractors or agents.
7.3 If the Services do not conform with the undertaking in clause 7.1, WeconnectU will use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Customer with an alternative means of accomplishing the desired performance.
7.4 Notwithstanding the foregoing, WeconnectU:
7.4.1 does not warrant that the Customer’s use of the Services will be uninterrupted or errorfree; and
7.4.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities.
7.5 WeconnectU warrants that it has and will maintain all necessary licenses, consents and permissions necessary for the performance of its obligations under this Agreement.
8 USERS’ OBLIGATIONS
The User shall:
8.1 provide WeconnectU with:
8.1.1 all necessary co-operation in relation to this Agreement; and
8.1.2 all necessary access to such information as may be required by WeconnectU;
8.1.3 comply with all applicable laws and regulations of the Republic of South Africa with respect to its activities under this Agreement;
8.1.4 comply with any reasonable directions from WeconnectU regarding access to or use of the web-based application and website;
8.1.5 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement;
8.1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its system to WeconnectU’s data centres;
8.1.7 ensure that the User’s details and other information given in relation to the use of WeconnectU web-based application and the website are, and are maintained to be true, correct and accurate;
8.1.8 not attempt to undermine the security or integrity of WeconnectU’s computing systems or networks;
8.1.9 not attempt to gain unauthorised access to any materials other than those to which the User has been given express permission to access;
8.1.10 not transmit or input into WeconnectU web-based application or website any files that may damage any other person’s computing device or software, content that may be offensive material or use details or company details in violation of any law;
8.1.11 use WeconnectU web-based application only for lawful, internal business purposes, in accordance with this Agreement;
8.1.12 comply with all contractual obligations, as imposed upon the User by these terms and conditions; and
8.1.13 ensure that the web-based application and website are not used in such a way that could cause a disproportionate load on the software infrastructure.
9 CHARGES AND PAYMENT
9.1 The Customer shall pay the Subscription Fees to WeconnectU for the User Subscriptions in accordance with Schedule 1 of the Software Proposal Agreement.
9.2 WeconnectU shall invoice the Customer on a monthly basis for all Subscription Fees and all other fees and cost recoveries, as agreed to in Schedule 1 of the Software Proposal Agreement.
9.3 The total amount due for every invoice will be collected via Debit Order every month, in accordance with the Debit Order Mandate included under Schedule 5 of the Software Propsal Agreement.
9.4 In the event of non-payment of any outstanding invoices, WeconnectU reserves the rights to:
9.4.1 disable the Customer’s password;
9.4.2 charge interest on the outstanding amount at the prime rate plus 3% and
9.4.3 immediately terminate this Agreement in accordance with clause 14.
10 INTELLECTUAL PROPERTY
10.1 The User acknowledges and agrees that WeconnectU and/or its licensors own all Intellectual Property rights in and to the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other Intellectual Property Rights, or licenses in respect of the Services of the Documentation.
10.2 The exclusive right to authorise or prohibit the direct or indirect, temporary or permanent reproduction of the Intellectual Property by any means and in any form, in whole or in part, and to make the Intellectual Property available to the public, and to distribute any copyright
protected material in WeconnectU web-based application and the website shall remain with WeconnectU.
10.3 WeconnectU may incorporate any technical and other protective measures to prevent any unauthorised and/or illegal use of WeconnectU web-based application and the website.
10.4 In the event that WeconnectU web-based application or the website become the subject of any form of claim of infringement of a third-party’s intellectual property rights, WeconnectU may elect to either:
10.4.1 obtain the right for the User to continue its use of WeconnectU web-based application or the website, in accordance with the terms and condition of this Agreement; or
10.4.2 modify or replace the alleged infringement so as to avoid any infringement or alleged infringement, with reasonable endeavours to ensure that the functionality and performance of WeconnectU web-based application or the website remains as it was prior to any claim of
infringement.
10.5 In the event that the User becomes aware of any alleged infringement as described above in clause 10.4, the User agrees to:
10.5.1 promptly notify WeconnectU in writing of any claim or threatened action concerning the use of WeconnectU web-based application or the website;
10.5.2 refrain from independently defending or responding to such claim or threatened claim; and
10.5.3 co-operate with WeconnectU in the defence of any such claim or threatened claim.
11 DATA PRIVACY AND PROTECTION
11.1 The User shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
11.2 The User agrees to be bound by the terms and conditions of WeconnectU Privacy Policy, available at www.weconnectu.co.za. WeconnectU reserves their right to update this Privacy Policy from time to time, and agrees to notify the User of any such changes.
11.3 WeconnectU agrees to take all reasonable steps to ensure the safe-keeping of the Customer Data through the use of Amazon Database Services, which allows point in time recovery for up to 7 (seven) days.
11.4 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for WeconnectU to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by WeconnectU.
11.5 WeconnectU may disclose personal identifiable information under special circumstances including but limited to the following:
11.5.1 any court order compelling the company to do so; or
11.5.2 if the User violates any term or condition in this Agreement or any and all annexures thereto.
12 CONFIDENTIALITY
12.1 The information contained in this Agreement between the parties is confidential, privileged and only for the use of the intended recipient and may not be used, duplicated, published or redistributed to any other individual or company. WeconnectU reserves its right to protect and enforce the confidentiality of its software and the use thereof.
12.2 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:
12.2.1 is or become publicly known other than through any act or omission of the receiving Party;
12.2.2 was in the other Party’s lawful possession before the disclosure;
12.2.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
12.2.4 is independently developed by the receiving Party, which independent development can be done by written evidence; or
12.2.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.3 Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the Implementation of this Agreement.
12.4 Each Party shall take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
13 LIMITATION OF LIABILITY
13.1 The User agrees that WeconnectU shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services.
13.2 WeconnectU disclaims any and all loss or liability resulting from, but not limited to:
13.2.1 loss or liability resulting from access delays or access interruptions;
13.2.2 loss or liability resulting from unauthorised use or misuse of your account username or password;
13.2.3 loss or liability resulting from any system security breaches and cyberattacks;
13.2.4 loss or liability resulting from errors, omissions or misstatements in any and all information or services provided under this Agreement; and
13.2.5 loss or liability resulting from the interruption of your Service.
14 TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue on a month-to-month basis, and shall automatically renew each month unless:
14.1.1 either Party notifies the other Party of termination, in writing, at least 1 (one) calendar month notice before the end of the Current Subscription Term; or
14.1.2 otherwise terminated in accordance with the provisions of this Agreement.
14.2 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement, effective immediately, without liability to the other if:
14.2.1 the other Party commits a breach of any of the material terms of this Agreement, including the terms, conditions and provisions of any schedule attached or adopted hereto and all terms of conditions of the Software Proposal Agreement, and fails to remedy, or is incapable of remedying, that breach within 7 (seven) days of that Party being notified in writing of the breach.
14.3 Without prejudice to any other rights or remedies to which WeconnectU may be entitled to, WeconnectU may terminate this Agreement, effective immediately and without liability to the other party if:
14.3.1 the User fails to pay charges that are due and owing to WeconnectU;
14.3.2 the User stops paying for the use of WeconnectU web-based application and website; or
14.3.3 the User becomes bankrupt or compounds or make any arrangement with or for the benefit of its creditors or enters into voluntary or involuntary liquidation or amalgamation (other than for the purposes of a bona fide reconstruction or amalgamation without insolvency), or has a receiver or manager appointed for the whole or substantially the whole of its undertakings or if any distress or execution shall be threatened or levied upon any property of the User or if the User is unable to pay its debts in accordance with the law relating to this Agreement.
14.4 Upon the termination of this Agreement, the User will be granted a period of 30 (thirty) days to retrieve all Customer Data, after which WeconnectU will close the User’s account and the User will no longer have access to and use of WeconnectU web-based application and website.
14.5 On termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate.
15 FORCE MAJEURE
WeconnectU shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 (whether involving the workforce of WeconnectU or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of WeconnectUs or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16 DISPUTE RESOLUTION
16.1 In the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by either Party be submitted to arbitration in Cape Town in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
16.2 Should AFSA, as an institution, not be opening at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration, then any Party to the dispute shall be entitled to forthwith call upon the chairperson of the Cape Town Bar Council to nominate the arbitrator, provided that the person shall be an advocate of not less than 1 (one) years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
16.3 Any Party to the arbitration may appeal the decision of the arbitrator in terms of the AFSA rules for commercial arbitration.
16.4 Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
16.5 Any arbitration in terms of this clause 16 (including any appeal proceedings) shall be conducted in camera and the parties shall treat as confidential the details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
16.6 This clause 16 will continue to be binding on the Parties notwithstanding any termination or cancellation of this Agreement.
16.7 The Parties agree that the written demand by a Party to the dispute in terms of clause
16.1 that the dispute or difference be submitted to arbitration, is to be deemed a legal process for the purposes of interrupting extinctive prescription in terms of the Prescription Act of 1969.
17 WAIVER
17.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude any rights provided by law.
18 SEVERANCE
18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be invalid, enforceable or legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
19 ENTIRE AGREEMENT
19.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
19.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
20 ASSIGNMENT
20.1 The Customer shall not, without the prior written consent of WeconnectU, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20.2 WeconnectU may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligation under this Agreement.
21 GOVERNING LAW AND JURISDICTION
21.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of South Africa.
21.2 The Parties irrevocably agree that the High Court of South Africa has exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
21.3 Should a dispute relating to the terms and conditions of this Agreement arise and proceed to litigation, the successful party will be entitled to legal costs on the scale as between attorney and own client.
