iReCall

Terms And Conditions

1. Introduction

1. These are the terms and conditions between us and you relating to our provision of software as a service to you. We have developed or obtained the rights to provide the software as a service. You wish to make use of the software as a service we provide to facilitate your business. We make various applications available to you through the Internet as services. The provision of the software as a service lets your authorised users access the applications and make use of the software as a service.

2. Definitions

In this agreement:

1. “administrator”. means an authorised user that you employ who is authorised to provide, manage and administer certain services;
2. “authorised user”. means you or a user in your employ where you are a juristic person, who has been assigned credentials;
3. “API”. means the application program interface we own that you might use to communicate with our systems in order to use the services;
4. “API specifications”. means our required technical and administrative specifications, interface standards, regulations, procedures and communication protocols that you are required to adhere to in order to use the services, as notified by us in writing from time to time;
5. “dashboard”. means the section on the website accessible by you through a web browser that allows you to control certain aspects of the services;
6. “consumables”. means any consumable items we use to fulfil our obligations under the agreement including stationery and storage media;
7. “credentials”. means a unique username and password that has been assigned to an authorised user;
8. “critical bug”. means any bug, problem, error or difficulty experienced with the operation of the thing being supported and maintained that threatens your ability to generate revenue, and includes a web application being down or the system not being accessible;
9. “effective date” means the date the first data is stored on your behalf by our Software as a service;
10. “enhancement”. means any minor change to the software as a service that:
  1. does not require any extensive business requirements analysis, functional specification or wire framing; and
  2. has a total development time of not more than two business days;
11. “non-critical bug”. means any bug, problem, error, or difficulty experienced with the operation of the thing being supported and maintained that does not threaten your ability to generate revenue;
12. “project”. means any scoped project to make changes to the software as a service;
13. “software as a service”. means the ability we provide to you to use our software running through the Internet as a service;
14. “third party software”. means all third party software owned by a third party but legally licensed to us for use in providing the services;
15. “updates” means any updates, patches, corrections, by-passes or revisions to the software as a service, excluding upgrades, which add no functionality to the system that are provided to you under this order; and
16. “website” means the website at the domain as may be designated by us in writing from time to time that provides you with access to the software as a service.

3. Duration

1. This agreement will start on the effective date and will continue perpetually on a month to month basis until terminated in terms of this agreement.

4. Registration

1. Registration required
  1. You must register to use the services. We reserve the right not to enter into the agreement with you (reasons could include for example that you have previously been suspended from using our services or you pose an unacceptable level of risk for us).
2. Registration information. You must:
  1. provide your full legal name, a valid email address, and any other information requested by us to complete the registration process;
  2. have the legal capacity to conclude legally binding contracts;
  3. possess the legal right, full power, and authority to enter into the agreement;
  4. be old enough under applicable law to enter into the agreement;
  5. submit true, accurate and correct information to us; and
  6. if you are juristic person, the person making application on your behalf must also be duly authorised to conclude contracts on your behalf.
3. Identity verification
  1. us conducting a credit check on you;
  2. asking you to provide us with documentation such as your registration documents if you are a juristic person, the front page of your ID book if you are a natural person, or proof of your address; and
  3. verifying this against third party databases.

5. Accounts and security

1. Credentials. You will be required to select your credentials when registering which will enable you to sign into your account on our website. If you are a juristic person, you will have to designate specific authorised users and an administrator. Only you may use your credentials. We do not permit multiple people to share credentials.
2. Choice of password. You must choose a password. We may prescribe requirements for this password on our website, including that it must be of at least a certain length and must contain at least one of certain types of characters. Please do not use derivatives of your username and common character sequences such as “123456”. Also do not use personal details such as your spouse’s name, car registration number, ID number, passport number and birthday, unless accompanied by additional unrelated characters.
3. Access. Only authorised users may access the software as a service by using their credentials.
4. Authorised user obligations.
  1. Each authorised user agrees:
    1. to keep their credentials secure;
    2. not to disclose their credentials to any other person;
    3. not to provide access to any other person;
    4. to secure all data under their control;
    5. not to interfere with the functionality or proper working of the website or services;
    6. not to introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the website or services; and
    7. not use the service for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law.
5. Administrator obligations.
  1. The administrator agrees:
    1. not to use bots or other automated methods to register authorised user accounts;
    2. to only create one account per email address per authorised user;
    3. to make a list of all authorised users available to us on request;
    4. to immediately notify us in writing of any lost credentials by an authorised user;
    5. to ensure that authorised users who are no longer authorised to use the services do not use them;
    6. to notify us of any known breach of this agreement or any other agreements between the parties;
    7. to take reasonable measures to ensure that authorised users do not introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the services.
6. Your instructions.
  1. Each authorised user is responsible and liable for activities that occur under their credentials. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has defrauded both of us, unless you have notified us in writing prior to us 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. Monitoring security
  1. We reserve the right to take whatever action we deem necessary to preserve the security and reliable operation of our software as a service and you undertake that you will not do or permit anything to be done which will compromise our security. If:
    1. we are unable to verify any information you provide to us; or
    2. we reasonably believe that your activities pose a significant credit or fraud risk to us or our other customers, or may cause financial loss or legal liability for us, our other customers, or you then we will be entitled to suspend or terminate your use of the website or services.

6. License

1. From the effective date, we, subject to the further terms and conditions of this Agreement, grant you a non-exclusive, non-transferable and for the duration of this agreement entitling specified number of users to access the services.
2. You will not:
  1. sell, rent, lease, sub-license or lend the Software;
  2. redistribute the Software;
  3. exceed the number of Users;
  4. reverse engineer, decompile or disassemble the Software; or
  5. willfully remove or obscure any Licensor patent, copyright, trade mark, brand name or proprietary rights notices contained in or affixed to the Software.

7. Services

1. Basis. We provide the software as a service to you on the basis contemplated in this agreement.
2. Access. We will provide you with access to the software as a service via the website or mobile application. Access will be restricted to authorised users. Any additional users will be subject to additional charges. We are not responsible for providing you with Internet access, telecommunications, or other infrastructure required to access the software as a service.
3. Service levels. We will provide the services with the following service levels:
  1. We will use all reasonable efforts to make the software as a service available 24 hours per day, seven days per week and 365 days of each year.
  2. From time to time, it may be necessary for us to schedule routine maintenance of the software as a service. Therefore a monthly system downtime of seven hours to perform routine maintenance is reserved for each server. We will use all reasonable efforts to minimise the impact of scheduled routine maintenance on the software as a service (including typically performing the scheduled routine maintenance from midnight Sunday through to Monday morning). If the scheduled maintenance is to endure for a period longer than 120 minutes then we will provide you with prior notice. We may perform emergency maintenance when necessary.

8. Intellectual property

1. Your data. You own all your data. We do not own your data or other third party content used as part of the software as a service. All title, ownership rights and intellectual property rights in and to the content accessed through the software as a service belong to you or the applicable content owner and may be protected by applicable copyright or other law.
2. Your data license. When you upload your data to the software as a service, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services.
3. Location of your data. We are able to provide the software as a service in multiple locations that are located in different countries. Your data will remain in whatever location we placed it, unless we have to transfer it across a country border to enable us to comply with our obligations under the agreement.
4. Our Intellectual property. You acknowledge and agree that all Intellectual Property Rights in and to the software and the service as a whole, belong to and vest in us.
5. Survival. This clause will survive termination of the agreement.

9. Fees

1. Monthly. You will pay us the fees each month.
2. Fees cover software as a service. The fees will cover the software as a service and not any other software, including any database.
3. Fee increase. We may increase the fees once during each successive period of 12 calendar months calculated from the effective date, subject to 14 calendar days prior written notice to you and not in excess of twice the Consumer Price Index, all urban consumers and other goods and services as published by the SA Department of Economic Affairs during the previous calendar year.
4. Additional fees. If, after the effective date, the fees payable by you increase as a result of an increase in the software as a service for whatever reason, including you electing to use additional software as a service, you will pay us the additional fees agreed by the parties as being applicable to the software as a service.
5. Time and materials. We may charge you additional fees on a time and materials basis for time that we, in our reasonable opinion, spend in relation to the following:
  1. data restoration or re-establishment or other assistance required by you that does not result from inherent errors in the software as a service;
  2. unauthorised use of the software as a service; or
  3. providing services to you in circumstances where any reasonably skilled and competent software as a service administrator would have judged your request to have been unnecessary.
6. Withhold payment. You may not withhold payment of any amount due to us for any reason.
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 certificates contents.
8. Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.

10. Restrictions

You will not:

1. grant any third party direct access to the software as a service, including by way of lease, download, software as a service or as an application, bureau or on-demand software service provider or any other method; or
2. use the software as a service to provide services to any third party similar to the software as a service.

11. Suspension of services

1. Without cause. We may modify, suspend, or discontinue providing the services without cause (with or without notice) and will not be liable for doing so.
2. AUP violation. We may immediately suspend your right to use any of the services if you violate our acceptable use policy if we have one.
3. 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.
4. Failure to pay. We will immediately suspend your access to the service if you fail to pay the monthly fee on time.

12. Termination of services

1. We may immediately terminate this agreement at any time by giving you notice in writing if:
  1. any software license agreement with a key vendor changes materially, is revoked or terminated; or
  2. our relationship with one of our key technology goods or service providers terminates or requires a change in the way we provide the software or other technology as part of the services.
2. You may terminate this agreement by
  1. giving us one calendar month written notice for any reason.

13. Effect of termination

1. Data deletion. On the deactivation or deletion of your account:
  1. 1. the agreement will terminate;
    2. your access rights will immediately cease to exist; and
    3. all your data will be erased;

unless we have agreed to render post termination assistance to you in writing.

1. Post termination assistance. Following the termination of the services, you will be entitled to take advantage of any post-termination assistance that we may generally make available with respect to the services (such as data retrieval arrangements). We may endeavour to provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the service, or made available uniquely to you, will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.
2. Retention of data. We will keep your data for a period of 90 calendar days after the termination of this agreement. You can request us to provide you with an unencrypted version of your data. We will charge you a service fee to provide you with this backup.

14. Effect of termination

1. In no event will either party be liable to the other party for any indirect or consequential loss or damages.
2. Subject to this clause and except for liability arising out of a party’s infringement or misappropriation of the other party’s intellectual property rights, our maximum liability you, whether in contract or delict (including negligence) for all breaches of this Agreement, and all other events, acts, claims, omissions and causes of action of whatever nature and however arising, relating to or arising directly or indirectly from this Agreement or the Software, is limited to the value of the Fee received by us. Nothing in this Agreement will limit or exclude the liability of the parties for any matter to the extent to which such liability cannot be lawfully excluded or limited.

15. Warranties

1. Each party warrants and represents that:
  1. it has full capacity and authority to enter into and perform its obligations under this agreement;
  2. his agreement is executed by a duly authorised representative of that party;
  3. there are no actions, suits or proceedings or regulatory investigations pending or, to that party´s knowledge, threatened against or affecting that party before any court or administrative body or arbitration tribunal that this agreement might affect the ability of that party to meet and carry out its obligations under this agreement.
2. We warrant that:
  1. We are the lawful proprietor of the software and are entitled to grant you rights to use it;
  2. We have the necessary rights, licences and approvals to provide any third party software to you in accordance with the terms of this agreement;
  3. the software is free of malicious ode, viruses and malware; and
  4. we will process all your data that we have access to during the terms of this agreement in compliance with relevant data protection and privacy legislation and in accordance with our privacy policy.
3. Except as expressly provided in this Agreement, we give no representation, undertaking or warranties, express or implied, by operation of law or otherwise. Without derogating from the generality of the aforegoing (but subject to any express warranties provided in the agreement) the warranties of “fitness for purpose” and merchantability are excluded. Any warranties given by us extend solely to you and are not transferable.
4. You warrant, represent and undertake that you:
  1. will use the software only for the purposes of your business and not for any form of commercial exploitation;
  2. use reasonable care and protection to prevent the unauthorised use, copying, publication or dissemination of the software;
  3. will not use the software in any manner that is not permitted in terms of this Agreement;
  4. will satisfy yourself that the software meets the needs of your business. It is your sole responsibility to determine that the software is ready for operational use in your business before it is so used;
  5. will ensure that the infrastructure and any other software with which the software will be used is either your property or is legally licensed to you for use with the software. You will indemnify us in respect of any claims by third parties and all related costs, expenses or damages in the event of your infrastructure allegedly violating any third party proprietary rights which results in any claims against us.

16. Confidential information

1. Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.
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:
  1. only use it to comply with its responsibilities under this agreement;
  2. only give the information to any of its employees or agents that need it, and only give as much of it as they need;
  3. use reasonable security procedures to make sure employees or agents keep the information confidential;
  4. get promises of confidentiality from those employees or agents who need access to the information;
  5. not reveal the information to anyone else; and
  6. not use it for any purpose other than this agreement.
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.
4. Exceptions. These responsibilities will not apply to any information that:
  1. is lawfully in the public domain (available to the general public) when a party received it;
  2. lawfully becomes part of the public domain afterwards;
  3. is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or
  4. is given to comply with a court order or other legal duty.
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.
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.

17. Resolving disputes

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:
  1. negotiation (direct talks to try and agree how to end the dispute); failing which
  2. mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
  3. arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
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.
3. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA´s rules.
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 AFSA´s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
5. 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).
6. Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.

18. Notices and domicile

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.
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.
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.
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.
5. Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

19. Force majeure

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.
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.
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.

20. Relationship

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.
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.

21. General

1. Entire agreement. The agreement is the entire agreement between the parties on the subject.
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.
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.
4. Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you
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.
6. Governing law. South African law governs this agreement.
7. Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.
8. 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.
9. Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
10. 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.

Terms And Conditions

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