Customer Relationship Terms

for the provision of ICT related services
1. Introduction

These are the general terms of the relationship between us and you. They cover any transactions where we provide services to you. The commercial terms of any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.

2. Definitions and interpretation

Definitions. In the agreement:

agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
business day means any day other than a Saturday, a Sunday or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;
existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;
fees means the fees, charges, or purchase consideration that you will pay to us in respect of services we provide under orders;
order means a services order agreed to and signed by both the parties describing the specific services that we will provide to you;
our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;
services means any services we or related persons provide to you, under orders;
sign means the handwritten signature , of each of our duly authorised representatives;
terms means the terms, consisting of:

  • these customer relationship terms; and
  • any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific services);

third party software means software that is owned by third parties and includes open source software that we have been authorised to use to provide the services or sub-license;
we, us, or our means iMod Digital (Pty) Ltd.
you or your means the customer that enters into an order and, if specified in the order, those related to it;

2.1 Definitions in the order. Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.
2.2 Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
2.3 Conflict. If there is a conflict of meaning between these terms and any order, the order will prevail in respect of your use of the relevant services.

3. Duration

The terms commence on acceptance and continue until terminated. Where the duration of this agreement is specified in an order, if you are a “consumer” for purposes of the Consumer Protection Act, you will be entitled to terminate the relevant service prior to the expiry of the term on 20 business day’s written notice to us. However, we will be entitled to charge you an early termination fee.

4. Orders

4.1 Invitation to do business. The marketing of the services by us is merely an invitation to do business or for you to place an order to procure services. The parties only conclude a valid and binding order when we start providing the services.
4.2 Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any services when we accept your offer.
4.3 Time and place. The parties conclude any agreement between each other at the time when our duly authorised representative accepts the relevant offer and at the place where we have our head office. We do not need to communicate the acceptance of the offer to you.
4.4 Orders. The terms in effect at the time you make an offer will govern the order. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders.

5. Fees and payment

5.1 Due dates. You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the order.
5.2 Manner of payment. You must make payment in the manner specified.
5.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may halt the provision of any services until you have paid all amounts that are due.
5.4 Interest on overdue amounts. To the extent permitted by applicable law, any amount not paid by you on the date of the statement of outstanding invoices will bear interest for our benefit, from the due date until the date you pay it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of our bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
5.5 Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the agreement.
5.6 Withhold payment. You may not withhold payment of any amount due to us for any reason.
5.7 Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
5.8 Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
5.9 Reimburse costs. If we suspend the service, you will pay to us the costs incurred by us (including redeployment, travel and associated expenses) in remobilising our employees affected by the agreement and recommencing the services.

6. Intellectual property

6.1 Ownership in works. Once you pay us the fees in full, we assign ownership in any intellectual property we develop for you under an order.
6.2 Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.
6.3 Use of our technology. If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right or interest in it.
6.4 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
6.5 Restrictions. Except as expressly permitted under the agreement, the website may not be:

  • modified, distributed, or used to make derivative works;
  • rented, leased, loaned, sold or assigned;
  • decompiled, reverse engineered, or copied; or
  • reproduced, transferred, or distributed.

6.6 Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.

7. Our warranties

7.1 Service warranties. We warrant that in relation to the services:

  • We and our personnel will possess and have the right to use knowledge and expertise sufficient to enable us to provide the services.
  • We will employ a sufficient number of suitably trained personnel to provide the services and to achieve the service levels;
  • We will provide the services in accordance with all applicable laws, enactments, and regulations.

7.2 General warranties. We warrant further that:

  • We have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement;
  • We and our personnel will not knowingly introduce any malicious software into your material or your system.

8. Disclaimer of warranties

8.1 Disclaimer. You use our services at your sole responsibility and risk. We provide the services on an “as is” and “as available” basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:

  • any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement;
  • any warranties regards third party software;
  • that the services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure, error-free or free from infection by malicious software.

You should keep up-to-date security software on any systems used to access the services.
8.2 Exclusion of liability. Despite any warranty we give, we will not be liable regards any defect arising from negligence, failure to follow our instructions (whether oral or in writing) or misuse.

9. Your warranties

You warrant that:
9.1 you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;
9.2 by entering into an order you are not acting in breach of any agreement to which you are a party;
and you agree to indemnify, defend, and hold harmless us (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs.

10. General warranty

We both warrant that we have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the agreement.

11. Termination

11.1 Termination for convenience. You may, in your discretion, terminate the agreement or a specific order, upon at least 60 days prior written notice to us.
11.2 Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:

  • We discontinue the services;
  • We believe providing the services could create an economic or technical burden or material security risk for us;
  • Termination is necessitated by us having to comply with the any applicable law or requests of governmental entities; or
  • We determine that your use of the service or the provision of any of the services to you has become impractical or unfeasible for any legal or regulatory reason.

11.3 No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect:

  • continued service for any period whether definite or indefinite;
  • the renewal or extension of the term of any agreement; or
  • the conclusion of any further agreement between you and us or our personnel.

12. Limitation of liability

12.1 Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, each party’s maximum liability for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid (or due and payable) by you to us in respect of this agreement for the period 12 months preceding the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
12.2 Indirect damages excluded. To the extent permitted by applicable law, in no event will a party be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from this agreement.

13. Notices and domicile

13.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.
13.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
13.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers in South Africa by writing to the other party 14 days before the change.
13.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
13.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

14. Force Majeure

14.1 Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
14.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
14.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.

15. General

15.1 Electronic communications. To the fullest extent permitted by law, you consent to receiving all notices and other communications from us electronically. We may post electronic communications on our website or send them to the email address we have on record for you. Please print a copy of each communication and retain it for your records.
15.2 Entire agreement. The agreement is the entire agreement between the parties on the subject.
15.3 Changes. No change to this agreement is effective unless in writing and signed with a handwritten signature by authorised signatories of both parties.
15.4 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.
15.5 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.
15.6 Governing law. South African law governs this agreement.
15.7 Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
15.8 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.