TotalSend – Terms of Service
general terms for the provision of services
These terms are the general terms of the relationship between us and you. The terms 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:
additional fee means a charge you must pay us for the supply of any services outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between the parties;
administrator means an authorised user that you employ who is authorised to provide, manage and administer certain services;
agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
authorised user means you or a user in your employ where you are a juristic person, who has been assigned credentials;
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;
business hours means our normal business hours on business days;
contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;
credentials means a unique username and password that has been assigned to an authorised user;
dashboard means the section on the website accessible by you through a web browser that allows you to control certain aspects of the services;
effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
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;
personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in the relevant companies legislation;
services means any services we or related persons provide to you, under orders;
sign means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of each of our duly authorised representatives;
signature date means the date of signature by the party signing last;
tax means any:
- tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction);
- duty (including stamp duty);
- tariff, rate, levy; or
- any other governmental charge or expense payable;
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 contractor means any contractor, supplier, service provider or licensor of a part of the services, which is not a party to the agreement;
third party software means all third party software owned by a third party but legally licensed to us for use in providing the services;
we, us, or our means Total Holdings Ltd, the service provider that enters into an order and, if specified in the order, those related to it;
writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;
you or your means the customer that enters into an order and, if specified in the order, those related to it;
your data means your data (including information about an identifiable person) that:
- you provide (or any third party on your behalf provides) to us; or
- we generate, process, or supply to you in providing the goods or services; but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors, or which belongs to third parties
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.
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 relevant consumer legislation, you may terminate the relevant service prior to the expiry of the term on 20 business day’s written notice to us. However, we may charge you an early termination fee.
4.1 Capacity. You represent and warrant that you (and any person who places an order):
- are old enough under applicable law to enter into the agreement;
- are legally capable of concluding any transaction;
- possess the legal right, full power, and authority to enter into the agreement;
- are authorised to use the credentials required for any account; and
- will submit true, accurate and correct information to us.
If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the agreement or that you have obtained legal status in another manner.
4.2 Invitation to do business. The marketing of the services by us is merely an invitation to do business or for you to make an offer to procure services. The parties only conclude a valid and binding order when we accept the offer made by you. Unless proven to the contrary, we only accept an offer relating to services, when we begin providing the services. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.
4.3 Deemed order. You will be deemed to have placed an order in regard to services when you start consuming any services you have requisitioned automatically from the dashboard, it being agreed that each click of a button to requisition a service constitutes a billable event.
4.4 Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you if we do so without cause.
4.5 Fees. Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any services when we accept your offer.
4.6 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 you have your head office. We do not need to communicate the acceptance of the offer to you.
4.7 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.
5.1 Grant of right. We grant you a limited, non-exclusive, non-transferrable, revocable right to use our services in accordance with the terms and the terms of any third party agreement. Any person wishing to use the services contrary to the terms or third party agreement must obtain our prior written consent.
5.2 Consent to monitoring. You consent to us monitoring your use of the service for security purposes and in order to ensure that the service is always running and functioning as it should.
5.3 Service levels. We will provide the services to you at the service levels.
5.4 Third party software. Some software used in our services may be third party software that we will make available to you in accordance with third party software license terms. You agree that the use of the services is subject to these third party software license terms and that they may change from time to time. Please note that there may be provisions in the third party software license agreement that expressly override some of these terms.
6. Unmanaged services
6.1 Introduction. We provide various unmanaged services to you, including the ability to create electronic messages in the form of emails, send electronic message campaigns, and monitor the effectiveness of those campaigns.
6.2 Registration. Each authorised user must provide their full legal name, a valid email address, and any other information requested by us to complete the registration process.
6.3 Access. Only authorised users may access the services by using the credentials issued to them.
6.4 Authorised user obligations. Each authorised user agrees:
6.5 Administrator obligations. The administrator agrees:
6.6 Security. Each authorised user is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has defrauded both us and you, unless you have notified us in writing prior to you acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to an authorised user’s failure to maintain the confidentiality of their credentials.
7. Acceptable use
7.1 No illegal activities. You may not use the services for any activities that the law prohibits, like illegal gambling, illegal competitions, child pornography, or pyramid schemes.
7.2 No harmful activities. You may not use the services for any activities that could harm someone, like offering fraudulent goods or services.
7.3 No offensive activities. You may not use the services for any activities that could offend someone, like chain letters or multi-level marketing campaigns.
7.4 No illegal content. You may not use the services to distribute any content that the law prohibits the distribution of, like pirated software, unlicensed copyrighted content, or other content that infringes other people’s intellectual property rights.
7.5 No harmful content. You may not use the services to distribute any content that could harm someone, like viruses, malware, or other malicious software.
7.6 No offensive content. You may not use the services to distribute any content that could offend someone, like defamation, pornography, or other obscene content.
7.7 No security breaches. You may not use the services to breach any system security, including:
7.8 No network abuse. You may not abuse any network connections available to you through the service without permission from the recipient, including by:
7.9 Enforcement. We may immediately cancel your account without notice to you if you use the services contrary to this acceptable use clause.
7.10 Remedy. We may remove or change any content that violates this acceptable use clause.
8. Acceptable sending
8.1 Electronic messages. The services allow you send electronic messages in the form of emails or SMSs
8.2 No spam. You may not use the services to send spam, which means sending electronic messages with a specific subject matter to someone without their permission to send them those messages with that specific subject matter.
8.3 Anti-spam legislation. Any electronic messages that you send through the services must comply with all relevant anti-spam legislation.
8.4 Unsubscription. Any electronic messages that you send through the services must contain an unsubscribe link that is valid for at least 30 calendar days.
8.5 Disclosure. Any electronic messages that you send through the services must contain any information that you are required to disclose by law, including your physical address, phone number, or other non-Internet contact information.
8.6 Reason. Any electronic messages that you send through the services must contain the reason why the recipient is receiving the message.
8.7 No third party lists. You may not use the services to send messages to lists of contact details that you have bought, scraped from the Internet, or otherwise not built yourself.
8.8 Enforcement. We may immediately cancel your account without notice to you if you send any electronic messages contrary to this acceptable sending clause.
9. Message monitoring
9.1 Right to monitor. We may monitor your electronic messages and activity on your account and distribute the content within our organisation for the purposes of investigating any violation of these term or misuse of our services.
9.2 Right to use content. We may use the content of your electronic messages to develop tools to help us manage accounts that do not conform to our acceptable use clause.
9.3 Not private. Electronic messages are not always a private method of communication and you should not use the services to send any confidential information. Server administrators may be able to read your emails as they move from server to server across the Internet.
10. Managed services
10.1 Introduction. We provide various managed services, including helping you create electronic messages in the form of emails, send electronic message campaigns, and monitor the effectiveness of those campaigns, or doing any of those things on your behalf.
10.2 Agreement. The managed services agreement between us and you is made up of:
- these terms of service, including this managed services clause; and
- all applicable orders entered into between the parties.
10.3 Definitions. For the purposes of this clause:
- deliverable means any bespoke task we undertake for you, including an electronic message or electronic message campaign;
- development timetable means the timetable upon which the development of a deliverable will proceed as amended by the parties in writing;
- documentation means any available installation and operating instructions, user and support manuals and technical literature pertaining to the deliverables as supplied by us with the deliverables;
- due date means a deliverable related timeframe goal agreed between the parties in writing;
- milestone means a deliverable related progress goal agreed between the parties in writing;
- project means any scoped project to make changes to a deliverable (i) that results in a feature not present in a deliverable prior to the introduction of the changes, (ii) designed to permit the use of a deliverable in an environment other than that for which the deliverable was initially designed, (iii) that requires business requirements analysis, functional specification, or wire framing; or (iv) has a development time of more than two business days.
- services means any managed services we, or related persons, provide to you under orders, including development, deployment, and reporting;
- specification means the specification of the deliverables, which may be (i) in or attached to an order, or (ii) in writing, dated and signed by the parties; and
- support means ad hoc support which could result in a configuration change, service restart, or performing end-user actions on your behalf.
10.4 Transfer of services. If anyone other than us has been providing the services to you prior to the effective date, then the parties will as soon as possible after the effective date do all things as may be necessary to transfer the relevant services to us to enable us to provide the services. The parties will endeavour to complete the transfer of the services to us prior to the effective date or as soon as possible thereafter. The transition of the services will be co-ordinated by the steering committee (or if no steering committee exists then by the account managers of the parties, or alternates appointed by the account managers) and during the transfer period the parties will cooperate with each other (and will ensure that their respective third party suppliers cooperate with each other), to effect a smooth transfer of all the services to us.
10.5 Basis. We agree to provide the services to you in respect of:
- the deliverables; and
- any related tasks we agree to undertake for you in writing.
10.6 Our obligations. We will be responsible for the management and supervision of the performance of the services by our personnel.
10.7 Your responsibilities. You will provide the assistance and input as we may reasonably require to enable us to provide the services.
10.8 Exclusivity. During the currency of this agreement, you will only use us for the provision of the services in relation to the deliverables.
10.9 Suitably qualified personnel. We will, during the currency of this agreement, ensure that sufficient suitably qualified personnel devote of their time, attention, and abilities to the services as may be necessary for the completion of the services to your reasonable satisfaction.
10.10 Advice. We agree to advise and assist you with respect to all aspects of the services. In the performance of the duties, we will comply with all your reasonable requests and directions, including ensuring that our personnel attend the meetings as you may require from time to time.
10.11 Reporting. We must provide you with progress reports outlining any changes in direction, priorities, or progress with the services in the manner and at intervals agreed between the parties in writing.
10.12 Personnel performance and data. You will be responsible for the performance of your personnel and for the accuracy of all data and information you provide to us for purposes of our performance of our services.
10.13 Specification change procedure. If a party, at any stage, requires any amendment to the specifications, it will submit a written change request to the other party, setting out:
- the nature of the desired changes;
- the reason for the changes; and
- the effect of the changes on the deliverables
10.14 Specification change format. If the proposal is made by:
- you, we will investigate the likely impact of any proposed changes upon the development timetable and fees payable and will provide you with a written response;
- us, we will detail the likely impact of any proposed changes upon the development timetable and fees payable in the change note.
10.15 No changes until sign-off. Until any changes have been mutually agreed in writing, the parties will continue to perform their respective obligations.
10.16 Intellectual property rights vest in us. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the deliverables will vest in us.
10.17 Licence. Upon acceptance of the deliverables by you, we will grant you a licence to use the deliverables in accordance with a separate agreement to be entered into between the parties.
10.18 Existing material. During an order, each party grants to the other party (and their contractors as necessary) a temporary, non-exclusive license to use, reproduce and modify any of its existing material provided to the other party solely for the performance of the services. Your license to our existing material is conditioned upon your compliance with the agreement.
10.19 Licence to use. Upon payment in full, we grant you a non-exclusive, perpetual, fully paid up license to use, reproduce and modify (if applicable):
- our existing material in the form delivered to you as part of the deliverables; and
- the perpetual license applies solely to that which we leave with you at the conclusion of the order and is only for your internal business operations.
10.20 Deliverables not error-free. We do not warrant that any deliverables will be error free after acceptance by you.
10.21 Relationship.The parties will be deemed to be independent contractors, and the personnel of one will not be deemed to be personnel of the other.
11. Your data
11.1 Your data. We are not responsible for any of your data stored on our system.
11.2 Location of your data. We are able to provide the website in multiple locations that are located in different countries. Your data will remain in whatever location you place it, unless we have to transfer it across a country border to enable us to comply with our obligations under the agreement.
11.3 Privacy and protection of personal information.
- Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. The parties both acknowledge that they are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
- Responsible party. You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
- Trans-border flows of your data. You consent to us transferring your data across a country border to enable us to comply with our obligations under the agreement. You are solely responsible for determining that any transfer of your data across a country border complies with the applicable laws.
- Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
11.4 Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
11.5 Preservation of integrity of your data. Both of the parties will take reasonable precautions (having regard to the nature of each of their obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
11.6 Records. You agree that our records are prima facie evidence of the services provided to you.
11.7 Return of data. On termination of any order, each party will return to the other party in the form in which it was received all of the other party’s data or information provided to the party for the purpose of the performance of the relevant order.
12. Data privacy
12.1 Authorised processing. We will only carry out the actions in respect of the personal information that we process on your behalf that you have expressly authorised us to carry out.
12.2 Security measures warranty. We agree that we will take the necessary steps to keep the personal information secure and confidential, and will follow anyrequirements as laid out in the relevant data privacy legislation.
12.3 Indemnity. We agree to indemnify, defend, and hold you harmless (and those related to you and your personnel) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to us failing to comply with our obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
12.4 Trans-border data flows. We will not transfer any of your data across a country border without your prior written consent. We are solely responsible for determining that any transfer of personal information across a country border complies with applicable laws.
13. Intellectual property
13.1 Your data. You own all your data. We do not own your data or other third party content used as part of the website. All title, ownership rights and intellectual property rights in and to the content accessed through the website belong to you or the applicable content owner and may be protected by applicable copyright or other law.
13.2 Your data license. When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.
13.3 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.
13.4 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.
13.5 Trade marks. Our logo and sub-logos, marks, and trade names are our trade marks 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.
13.6 Restrictions. Except as expressly permitted under the agreement, the services may not be:
- modified or used to make derivative works;
- rented, leased, loaned, sold or assigned;
- reverse engineered or copied; or
- reproduced or distributed.
13.7 Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
14. Confidential information
14.1 Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.
14.2 The receiving party’s responsibilities. The party that receives confidential information agrees to protect the interests of the party it is from, and will:
14.3 End of this agreement. At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.
14.4 Exceptions. These responsibilities will not apply to any information that:
- is lawfully in the public domain (available to the general public) when a party received it;
- lawfully becomes part of the public domain afterwards;
- is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or
- is given to comply with a court order or other legal duty.
14.5 Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees or agents.
14.6 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.
No party will, during the currency of any order or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order.
16. Our warranties
16.1 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; and
- we will provide the services in accordance with all applicable laws, enactments, and regulations.
16.2 General warranties. We 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; and
- we and our personnel will not knowingly introduce any malicious software into your material or your system.
17. Disclaimer of warranties
17.1 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.
17.2 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.
18. Your warranties
You warrant that:
18.1 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;
18.2 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 us harmless (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. If permissible under applicable law, legal costs will be on an attorney and own client basis.
19. Fees and payment
19.1 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.
19.2 Manner of payment. You must make payment in the manner specified.
19.3 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.
19.4 Interest on overdue amounts. Any amount not paid by you on the due date 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.
19.5 Appropriation. We may appropriate any payment received from you towards the satisfaction of any of your indebtedness to us under the agreement.
19.6 Withhold payment. You may not withhold payment of any amount due to us for any reason.
19.7 Certificate. A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be proof of the correctness of the certificate’s contents.
19.8 Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
19.9 Payment profile. You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.
19.10 Reimburse costs. If we suspend a service or remove any goods that we supplied, you will pay us the costs that we incurred (including redeployment, travel and associated expenses) in remobilising our employees affected by the agreement and recommencing the services or re-installing the removed goods.
20. Intellectual property infringement
20.1 Defence. We will defend you against any claims made by an unaffiliated third party that any goods or services infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgement (or settlement to which we consent). We will reimburse you with all costs you reasonably incurred in connection with assisting us with the defence of the action. You will promptly notify us of the claim in writing and we will have sole control over its defence or settlement.
20.2 Consequences of successful claim by third parties. If any third party succeeds in its claim for the infringement of any intellectual property rights, we may within 30 calendar days of the infringing item having been found to so infringe:
- obtain for you the right to continue using the infringing item or the parts that constitute the infringement;
- replace the infringing item or the parts that constitute the infringement with another product that does not infringe and that in all respects operates substantially in accordance with its specifications;
- alter the infringing item in a way as to render it non infringing while still in all respects operating substantially in accordance with its specifications; or
- withdraw the infringing item and refund to you all fees paid by you to us under the relevant order specifically with regard to the infringing item in the preceding six calendar month period.
20.3 Exclusion. We will not be liable for any claim that arises out of goods or services you select and acquire from third parties.
20.4 Survival. This clause will survive termination of the agreement.
21. Project managers
21.1 Appointment. On the effective date, each party will appoint a suitably qualified and responsible person to act as their project manager. If a party does not appoint a project manager and that party is a natural person, then that party will be its own project manager. Otherwise, the natural person that is ordinarily responsible for the day-to-day administration of that party will be its project manager.
21.2 Function. The project managers’ responsibilities include to manage and coordinate the services and to discuss and manage any changes.
21.3 Replacement. A party may, on seven calendar days’ written notice to the other, appoint an alternative project manager who is suitably qualified and responsible.
22 Limitation of liability
22.1 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, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
22.2 Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) 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 the agreement.
22.3 Exclusions. The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.
22.4 We are not liable for your default. We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
22.5 Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.
22.6 Indemnity. We agree to indemnify, defend, and hold you (and your personnel) harmless against any and all:
22.7 Liability. Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.
If a party:
- does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so;
- breaches this agreement materially twice or more in any six month period;
- is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
- takes steps to deregister itself (close down) or is deregistered;
- makes any settlement or arrangement with its creditors; or
- fails to pay a court order against it (does not satisfy a writ of execution) for more than one million rand, within 21 days;
then the other party may, without prejudice to any of its rights:
- claim specific performance of this agreement (make the party comply with this agreement); or
- immediately cancel this agreement in writing; and
- claim damages from the other party, including any claim for any fees already due.
24. Suspension of services
24.1 Immediate suspension. We may immediately suspend your right to use any of the services in any of the following circumstances:
- you attempt a denial of service attack on any of the services;
- you seek to hack or break any security mechanism on any of the services;
- we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;
- you otherwise use the services in a way that disrupts or threatens the services;
- we determine, in our sole discretion, that there is evidence of fraud with respect to your account;
- we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party; or
- we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
24.2 Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.
25.1 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 any applicable law or requests of governmental entities; or
- we determine that your use of a service or the provision of any services to you has become impractical or unfeasible for any legal or regulatory reason.
25.2 Duties on termination. On termination, cancellation, or expiry of this agreement:
- we will stop providing the services;
- your access rights will cease to exist; and
- we will erase your data, unless we have agreed to provide you with post termination assistance in writing
25.3 Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
26. Effect of termination
26.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to us for services rendered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
26.2 Post termination assistance. Following termination, you may take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.
26.3 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 expectthe renewal or extension of the term of any agreement
26.4 Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
27. Resolving disputes
27.1 Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- negotiation (direct talks to try and agree how to end the dispute); failing which
- mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
27.2 Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
27.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation under rules that the parties agree to in writing.
27.4 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under thelatest rules for expedited arbitrations that the parties have agreed to in writing. The arbitration will be held in English in Cheltenham. The parties will agree and appoint one arbitrator.
27.5 Agree otherwise in an order. The parties may agree otherwise in an order.
27.6 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
27.7 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
27.8 Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
28. Notices and domicile
28.1 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 relevant order.
28.2 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.
28.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers by writing to the other party 14 days before the change.
28.4 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.
28.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
29. Force majeure
29.1 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.
29.2 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.
29.3 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.
30. Assignment and subcontracting
30.1 No assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of our business or some of our assets.
30.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
30.3 Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
31.1 No temporary employment service or partnership. Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
31.2 No employment relationship. Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
32.1 Entire agreement. The agreement is the entire agreement between the parties on the subject.
32.2 Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.
32.3 Changes to any third party software license agreement. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.
32.4 Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
32.5 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.
32.6 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.
32.7 Governing law. The law of the Mauritius governs this agreement.
32.8 Jurisdiction. You consent to the jurisdiction of the lowest possible 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.
32.9 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.
32.10 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
32.11 Publicity. A party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.