SAAS AGREEMENT - VERSION
V3
UPDATED - AUGUST 2020
BACKGROUND
•
RFDigi (Pty)Ltd Solutions
has developed certain software applications and platforms which it makes
available to subscribers via the
internet and mobile applications on a pay-per-use basis for the purpose of
Asset Management / Track and Trace / Access Control / Time Attendance / Job
Costing
•
The Customer wishes to use RFIQ a Division of Bluchip
Retail Solutions service in its operations.
•
RFDigi (Pty)Ltd Solutions
has agreed to provide and the Customer has agreed to take and pay for RFIQ a
Division of Bluchip Retail Solutions service subject to the terms and
conditions of this Agreement.
AGREED TERMS
1. INTERPRETATION
1. In
this Agreement the following expressions and words have the meanings assigned
to them and derivative expressions and words will have a corresponding meaning:
1. Agreement:
means collectively these terms and any annexures and schedules attached
herewith;
2. Authorised
Users: those employees, agents and independent contractors of the
Customer who are authorised by the Customer to use the Services and the
Documentation;
3. Business
Day: means any day, other than a Saturday, Sunday or an official
public holiday in the Republic of South Africa;
4. Change
of Control: the direct or indirect acquisition of
either the majority of the voting stock, or of all, or substantially all, of
the assets, of a party by another entity in a single transaction or a series of
transactions;
5. Confidential
Information: information that is proprietary or
confidential and is either clearly labelled as such or identified as
Confidential Information in clause 10;
6. Customer
Data: the data inputted by the Customer, Authorised Users, or RFIQ
a Division of Bluchip Retail Solutions on the Customer's behalf for the
purpose of using the Services or facilitating the Customer’s use of the Services.
The Customer Data may, or may not include Personal Information;
7. Documentation:
the document made available to the Customer by RFIQ a Division of Bluchip
Retail Solutions online via ‘https://rfiq.co.za'
or such other web address notified by RFDigi (Pty)Ltd
Solutions to the Customer from time to time which sets out a description of
the Services and the user instructions for the Services;
8. Effective
Date: means the date of subscription activation
9. Subscription
Term: the subscription term is month to month or annual based on
agreed terms with the Customer, charged in advance;
10. Normal
Business Hours: means 08h00 to 17h00 on each Business Day;
11. Operator
shall have the meaning given to it in terms of Section 1 of the Protection of
Personal Information Act 4 of 2013;
12. Personal
Information shall have the meaning given to it in
terms of Section 1 of the Protection of Personal Information Act 4 of 2013;
13. Renewal
Period: the period described in clause 13.1;
14. Responsible
Party shall have the meaning given to it in terms of Section 1 of the
Protection of Personal Information Act 4 of 2013;
15. Services:
the subscription services provided by RFDigi (Pty)Ltd
Solutions to the Customer under this Agreement via ‘https://www.rfiq.co.za'
or any other website notified to the Customer by RFIQ a Division of Bluchip
Retail Solutions from time to time, as more particularly described in the
Documentation;
16. Software:
the online or installed application software provided by RFIQ a Division of
Bluchip Retail Solutions as part of the Services;
17. Subscription
Fees: the subscription fees payable by the Customer to RFIQ a
Division of Bluchip Retail Solutions for the User Subscriptions, as set out
in paragraph 1 of Schedule 1;
18. Subscription
Term: has the meaning given in clause 13.1;
19. Support
Services Policy: RFIQ a
Division of Bluchip Retail Solutions policy
for providing support in relation to the Services as made available at
'https://www.rfiq.co.za' or such other website address as may be notified to
the Customer from time to time;
20. Subscription:
the access subscription purchased by the Customer pursuant to clause 8.1 which
entitles Authorised Users to access and use the Services and the Documentation
in accordance with this agreement;
21. Virus:
any thing or device (including any software, code, file or programme) which
may: prevent, impair or otherwise adversely affect the operation of any
computer software, hardware or network, any telecommunications service,
equipment or network or any other service or device; prevent, impair or
otherwise adversely affect access to or the operation of any programme or data,
including the reliability of any programme or data (whether by re-arranging,
altering or erasing the programme or data in whole or part or otherwise); or
adversely affect the user experience, including worms, trojan horses, viruses
and other similar things or devices.
2. Clause,
schedule and paragraph headings shall not affect the interpretation of this
agreement.
3. A
person includes an individual, corporate or unincorporated body (whether or not
having separate legal personality) and that person's legal and personal
representatives, successors or permitted assigns.
4. A
reference to a company shall include any company, corporation or other body
corporate, wherever and however incorporated or established.
5. Words
in the singular shall include the plural and vice versa.
6. A
reference to one gender shall include a reference to the other genders.
7. A
reference to a statute or statutory provision is a reference to it as it is in
force for the time being, taking account of any amendment, extension, or
re-enactment and includes any subordinate legislation for the time being in
force made under it.
8. A
reference to writing or written includes faxes but not e-mail.
9. References
to clauses and schedules are to the clauses and schedules of this agreement;
references to paragraphs are to paragraphs of the relevant schedule to this
Agreement.
10. When
any number of days is prescribed, the number of days shall be calculated on the
basis that the first day is excluded and the last day is included, provided
that Saturdays, Sundays and South African public holidays shall be excluded
from the calculation;
11. The
rule of construction that an agreement shall be interpreted against the Party
responsible for the drafting or preparation of the Agreement, shall not apply;
12. Where
figures are referred to in numerals and in words, if there is any conflict
between the two, the words shall prevail;
13. Terms
other than those defined within the Agreement will be given their plain English
meaning, and those terms, acronyms, and phrases known in the information and
communication technology industry will be interpreted in accordance with their
generally accepted meanings;
14. Any
substantive provision, notwithstanding that it is only in this clause 1,
conferring rights or imposing obligations on a Party, shall be given effect to
as if it were a substantive provision in the body of the Agreement;
15. Use
of the words "includes" or "including" means ‘includes
without limitation’ or ‘including without limitation’ and
the use of these or similar words shall not be limited to the meaning of the
general words;
16. Any
reference to "days" shall be construed as being a reference to
calendar days unless qualified by the word "Business";
17. A
reference to a Party shall include the permitted successors and assigns of that
Party;
18. Any
notice required to be given by either Party to the other Party in terms of this
Agreement shall, unless otherwise provided herein, be in writing; and
19. Any
consent, approval and/or authorisation required to be obtained by one Party
from the other Party shall not be unreasonably withheld or delayed.
2. USER
SUBSCRIPTIONS
1. Subject
to the Customer purchasing the Access Subscription in accordance with clause
8.1, the restrictions set out in this clause 2 and the other terms and
conditions of this Agreement, RFDigi (Pty)Ltd Solutions
hereby grants to the Customer a non-exclusive, non-transferable right to permit
the Authorised Users to use the Services and the Documentation during the
Subscription Term solely for the Customer's internal business operations.
2. In
relation to the Authorised Users, the Customer undertakes that:
1. each
Authorised User shall keep a secure password for his use of the Services and
Documentation, that such password shall be changed no less frequently than
monthly and that each Authorised User shall keep his password confidential;
3. The
Customer shall not access, store, distribute or transmit any Viruses, or any
material during the course of its use of the Services that:
1. is
unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or
racially or ethnically offensive;
2. facilitates
illegal activity;
3. depicts
sexually explicit images;
4. promotes
unlawful violence;
5. is
discriminatory based on race, gender, colour, religious belief, sexual
orientation, disability, or any other illegal activity; or causes damage or
injury to any person or property;
4. and
RFDigi (Pty)Ltd Solutions reserves the right, without
liability to the Customer, to disable the Customer’s access to any material
that breaches the provisions of this clause.
5. The
Customer shall not:
1. except
as may be allowed by any applicable law which is incapable of exclusion by
agreement between the Parties:
1. and
except to the extent expressly permitted under this Agreement, attempt to copy,
modify, duplicate, create derivative works from, frame, mirror, republish, download,
display, transmit, or distribute all or any portion of the Software and/or
Documentation (as applicable) in any form or media or by any means; or
2. attempt
to reverse compile, disassemble, reverse engineer or otherwise reduce to
human-perceivable form all or any part of the Software; or
2. access
all or any part of the Services and Documentation in order to build a product
or service which competes with the Services and/or the Documentation; or
3. use
the Services and/or Documentation to provide services to third parties; or
4. subject
to clause 18.1, license, sell, rent, lease, transfer, assign, distribute,
display, disclose, or otherwise commercially exploit, or otherwise make the
Services and/or Documentation available to any third party except the Authorised
Users, or
5. attempt
to obtain, or assist third parties in obtaining, access to the Services and/or
Documentation, other than as provided under this clause 2; and
6. The
Customer shall use all reasonable endeavours to prevent any unauthorised access
to, or use of, the Services and/or the Documentation and, in the event of any
such unauthorised access or use, promptly notify RFIQ a Division of Bluchip
Retail Solutions.
7. The
rights provided under this clause 2 are granted to the Customer only, and shall
not be considered granted to any subsidiary or holding company of the Customer.
3. SERVICES
1. RFIQ
a Division of Bluchip Retail Solutions shall,
during the Subscription Term, provide the Services and make available the
Documentation to the Customer on and subject to the terms of this Agreement.
2. RFIQ
a Division of Bluchip Retail Solutions shall
use commercially reasonable endeavours to make the Services available 24
(twenty four) hours a day, seven days a week, except for:
1. planned
maintenance carried out during the maintenance window of 11pm - 3am 3 night a
month; and
2. unscheduled
maintenance performed outside Normal Business Hours, provided that RFIQ a
Division of Bluchip Retail Solutions has used reasonable endeavours to give
the Customer at least 6 (six) Normal Business Hours’ notice in advance.
3. RFIQ
a Division of Bluchip Retail Solutions will,
as part of the Services and at no additional cost to the Customer, provide the
Customer with RFDigi (Pty)Ltd Solutions standard
customer support services during Normal Business Hours in accordance with RFIQ
a Division of Bluchip Retail Solutions Support Services Policy in effect at
the time that the Services are provided. RFDigi (Pty)Ltd
Solutions may amend the Support Services Policy in its sole and absolute
discretion from time to time. The Customer may purchase enhanced support
services separately at RFDigi (Pty)Ltd Solutions
at current rates.
4. CUSTOMER
DATA
1. The
Customer shall own all rights, title and interest in and to all of the Customer
Data and shall have sole responsibility for the legality, reliability,
integrity, accuracy and quality of the Customer Data.
2. RFIQ
a Division of Bluchip Retail Solutions shall
follow its archiving procedures for Customer Data as set out in its Back-Up
Policy available at 'https://www.rfiq.co.za', as such document may be amended
by RFDigi (Pty)Ltd Solutions in its sole discretion
from time to time. In the event of any loss or damage to Customer Data, the
Customer's sole and exclusive remedy shall be for RFIQ a Division of Bluchip
Retail Solutions to use reasonable commercial endeavours to restore the
lost or damaged Customer Data from the latest back-up of such Customer Data
maintained by RFDigi (Pty)Ltd Solutions in accordance
with the archiving procedure described in its Back-Up Policy. RFIQ a
Division of Bluchip Retail Solutions shall not be responsible for any loss,
destruction, alteration or disclosure of Customer Data caused by any third
party (except those third parties sub-contracted by RFIQ a Division of
Bluchip Retail Solutions to perform services related to Customer Data
maintenance and back-up).
3. RFIQ
a Division of Bluchip Retail Solutions shall,
in providing the Services, comply with its Privacy and Security Policy relating
to the privacy and security of the Customer Data available at ‘https://rfiq.co.za'
or such other website address as may be notified to the Customer from time to
time, as such document may be amended from time to time by RFIQ a Division
of Bluchip Retail Solutions in its sole discretion.
4. If
RFDigi (Pty)Ltd Solutions processes any Personal Data
on the Customer’s behalf when performing its obligations
under this Agreement, the Parties record their intention that the Customer
shall be the Responsible Party and RFDigi (Pty)Ltd
Solutions shall be the Operator and in any such case:
1. The
Customer shall ensure that the Customer is entitled to transfer the relevant
Personal Information to RFIQ a Division of Bluchip
Retail Solutions so that RFIQ a Division of
Bluchip Retail Solutions may lawfully use, process and transfer the
personal data in accordance with this agreement on the Customer's behalf;
2. The
Customer shall ensure that the relevant third parties have been informed of,
and have given their consent to, such use, processing, and transfer as required
by all applicable data protection legislation;
3. RFIQ
a Division of Bluchip Retail Solutions shall
process the Personal Information only in accordance with the terms of this
Agreement and any lawful instructions reasonably given by the Customer from
time to time; and
4. Each
Party shall take appropriate technical and organisational measures against
unauthorised or unlawful processing of the Personal Information or its
accidental loss, destruction or damage.
5. THIRD
PARTY PROVIDERS
The Customer acknowledges that the Services may enable or assist
it to access the website content of, correspond with, and purchase products and
services from, third parties via third-party websites and that it does so
solely at its own risk. RFDigi (Pty)Ltd Solutions
makes no representation or commitment and shall have no liability or obligation
whatsoever in relation to the content or use of, or correspondence with, any
such third-party website, or any transactions completed, and any contract
entered into by the Customer, with any such third party. Any contract entered
into and any transaction completed via any third-party website is between the
Customer and the relevant third party, and not RFIQ a Division of Bluchip
Retail Solutions. RFDigi (Pty)Ltd Solutions
recommends that the Customer refers to the third party’s website terms and
conditions and privacy policy prior to using the relevant third-party website. RFIQ
a Division of Bluchip Retail Solutions does not endorse or approve any
third-party website nor the content of any of the third-party website made
available via the Services.
6. RFIQ
a Division of Bluchip Retail Solutions'S OBLIGATIONS
1. RFIQ
a Division of Bluchip Retail Solutions
undertakes that the Services will be performed substantially in accordance with
the Documentation and with reasonable skill and care.
2. The
undertaking at clause 6.1 shall not apply to the extent of any non-conformance
which is caused by use of the Services contrary to RFIQ a Division of
Bluchip Retail Solutions instructions, or modification or alteration of the
Services by any party other than RFDigi (Pty)Ltd Solutions
or RFDigi (Pty)Ltd Solutions duly authorised contractors
or agents. If the Services do not conform with the foregoing undertaking, RFIQ
a Division of Bluchip Retail Solutions will, at its expense, use all
reasonable commercial endeavours to correct any such non-conformance promptly,
or provide the Customer with an alternative means of accomplishing the desired
performance. Such correction or substitution constitutes the Customer's sole
and exclusive remedy for any breach of the undertaking set out in clause 6.1
Notwithstanding the foregoing, RFDigi (Pty)Ltd Solutions:
1. does
not warrant that the Customer's use of the Services will be uninterrupted or
error-free; nor that the Services, Documentation and/or the information
obtained by the Customer through the Services will meet the Customer's
requirements; and
2. is
not responsible for any delays, delivery failures, or any other loss or damage
resulting from the transfer of data over communications networks and
facilities, including the internet, and the Customer acknowledges that the Services
and Documentation may be subject to limitations, delays and other problems
inherent in the use of such communications facilities
3. This
Agreement shall not prevent RFDigi (Pty)Ltd Solutions
from entering into similar agreements with third parties, or from independently
developing, using, selling or licensing documentation, products and/or services
which are similar to those provided under this Agreement.
4. RFIQ
a Division of Bluchip Retail Solutions
warrants that it has and will maintain all necessary licences, consents, and
permissions necessary for the performance of its obligations under this
agreement.
7. CUSTOMER'S
OBLIGATIONS
1. The
Customer shall:
1. provide
RFDigi (Pty)Ltd Solutions with:
1. all
necessary co-operation in relation to this Agreement; and
2. all
necessary access to such information as may be required by RFIQ a Division
of Bluchip Retail Solutions;
2. in
order to render the Services, including but not limited to Customer Data,
security access information and configuration services;
3. comply
with all applicable laws and regulations with respect to its activities under
this Agreement;
4. carry
out all other Customer responsibilities set out in this Agreement in a timely
and efficient manner. In the event of any delays in the Customer's provision of
such assistance as agreed by the Parties, RFDigi (Pty)Ltd
Solutions may adjust any agreed timetable or delivery schedule as
reasonably necessary;
5. ensure
that the Authorised Users use the Services and the Documentation in accordance
with the terms and conditions of this Agreement and shall be responsible for
any Authorised User’s breach of this Agreement;
6. obtain
and shall maintain all necessary licences, consents, and permissions necessary
for RFDigi (Pty)Ltd Solutions, its contractors and
agents to perform their obligations under this Agreement, including without
limitation the Services;
7. ensure
that its network and systems comply with the relevant specifications provided
by RFDigi (Pty)Ltd Solutions from time to time; and
8. be
solely responsible for procuring and maintaining its network connections and
telecommunications links from its systems to RFIQ a Division of Bluchip
Retail Solutions data centres, and all problems, conditions, delays,
delivery failures and all other loss or damage arising from or relating to the
Customer's network connections or telecommunications links or caused by the
internet.
8. CHARGES
AND PAYMENT
1. The
Customer shall pay the Subscription Fees to RFIQ a Division of Bluchip
Retail Solutions for the User Subscriptions in accordance with this clause
8
2. The
Customer shall on the Effective Date provide to RFIQ a Division of Bluchip
Retail Solutions valid, up-to-date and complete credit card details or
approved purchase order or debit order information acceptable to RFIQ a
Division of Bluchip Retail Solutions and any other relevant valid,
up-to-date and complete contact and billing details and, if the Customer
provides:
1. its
credit card details to RFDigi (Pty)Ltd Solutions, the
Customer hereby authorises RFDigi (Pty)Ltd Solutions
to bill such credit card:
1. on
the Effective Date for the Subscription Fees payable in respect of any agreed
Initial Setup Fee; and
2. subject
to clause 13.1, on each monthly Invoice Date;
2. its
approved purchase order information to RFDigi (Pty)Ltd
Solutions, RFDigi (Pty)Ltd Solutions
shall invoice the Customer:
1. on
the Effective Date for the Subscription Fees payable in respect of any agreed
Initial Setup Fee; and
2. subject
to clause 13.1, at least 5 days after the first business day of each month for
Subscription Fees payable in respect of the Month,
3. and
the Customer shall pay each invoice within 30 (thirty) days after the date of
such invoice.
4. If
RFDigi (Pty)Ltd Solutions has not received payment
within 30 (thirty) days after the due date, and without prejudice to any other
rights and remedies of RFDigi (Pty)Ltd Solutions:
1. RFIQ
a Division of Bluchip Retail Solutions may, without
liability to the Customer, disable the Customer’s password, account and
access to all or part of the Services and RFDigi (Pty)Ltd
Solutions shall be under no obligation to provide any or all of the
Services while the invoice(s) concerned remain unpaid; and
2. interest
shall accrue on such due amounts at an annual rate equal to 2% (two per cent.)
above the prime lending rate of the ABSA Bank of South Africa, commencing on
the due date and continuing until fully paid, whether before or after judgment.
5. All
amounts and fees stated or referred to in this Agreement:
1. shall
be payable in South African Rands;
2. shall
not be subject to any set off; and
3. are
exclusive of value added tax, which shall be added to RFIQ a Division of
Bluchip Retail Solutions invoice(s) at the appropriate rate.
6. RFIQ
a Division of Bluchip Retail Solutions shall
be entitled to increase the Subscription Fees at the start of each invoice
period upon 90 (ninety) days' prior notice to the Customer and shall be deemed
to have been amended accordingly.
9. PROPRIETARY
RIGHTS
1. The
Customer acknowledges and agrees that RFDigi (Pty)Ltd
Solutions and/or its licensors own all intellectual property rights in the
Services and the Documentation. Except as expressly stated herein, this
Agreement does not grant the Customer any rights to, or in, patents,
copyrights, database rights, trade secrets, trade names, trade marks (whether
registered or unregistered), or any other rights or licences in respect of the
Services or the Documentation.
2. RFIQ
a Division of Bluchip Retail Solutions
confirms that it has all the rights in relation to the Services and the Documentation
that are necessary to grant all the rights it purports to grant under, and in
accordance with, the terms of this Agreement.
10. CONFIDENTIALITY
1. Each
Party may be given access to Confidential Information from the other party in
order to perform its obligations under this agreement. A Party's Confidential
Information shall not be deemed to include information that:
1. is
or becomes publicly known other than through any act or omission of the
receiving party;
2. was
in the other party's lawful possession before the disclosure;
3. is
lawfully disclosed to the receiving party by a third party without restriction
on disclosure;
4. is
independently developed by the receiving party, which independent development
can be shown by written evidence; or
5. is
required to be disclosed by law, by any court of competent jurisdiction or by
any regulatory or administrative body.
2. Each
Party shall hold the other's Confidential Information in confidence and, unless
required by law, not make the other's Confidential Information available to any
third party, or use the other's Confidential Information for any purpose other
than the implementation of this Agreement.
3. Each
Party shall take all reasonable steps to ensure that the other's Confidential
Information to which it has access is not disclosed or distributed by its
employees or agents in violation of the terms of this Agreement.
4. Neither
Party shall be responsible for any loss, destruction, alteration or disclosure
of Confidential Information caused by any third party.
5. The
Customer acknowledges that details of the Services, and the results of any
performance tests of the Services, constitute RFIQ a Division of Bluchip
Retail Solutions Confidential Information.
6. RFIQ
a Division of Bluchip Retail Solutions
acknowledges that the Customer Data is the Confidential Information of the
Customer.
7. This
clause 10 shall endure for 2 (two) years post termination of this Agreement,
howsoever arising.
11. INDEMNITY
1. RFIQ
a Division of Bluchip Retail Solutions shall,
subject to clause 11.4, defend the Customer, its officers, directors and
employees against any claim that the Services or Documentation infringes any
intellectual propriety rights, and shall indemnify the Customer for any amounts
awarded against the Customer in judgment or settlement of such claims, provided
that:
1. RFIQ
a Division of Bluchip Retail Solutions is
given prompt notice of any such claim;
2. the
Customer provides reasonable co-operation to RFIQ a Division of Bluchip
Retail Solutions in the defence and settlement of such claim, at RFIQ a
Division of Bluchip Retail Solutions expense; and
3. RFIQ
a Division of Bluchip Retail Solutions is
given sole authority to defend or settle the claim
2. In
the defence or settlement of any claim, RFDigi (Pty)Ltd
Solutions may procure the right for the Customer to continue using the
Services, replace or modify the Services so that they become non-infringing or,
if such remedies are not reasonably available, terminate this Agreement on 5
(five) Business Days’ notice to the Customer without any
additional liability or obligation to pay liquidated damages or other
additional costs to the Customer.
3. In
no event shall RFDigi (Pty)Ltd Solutions, its
employees, agents and sub-contractors be liable to the Customer to the extent
that the alleged infringement is based on:
1. a
modification of the Services or Documentation by anyone other than RFIQ a
Division of Bluchip Retail Solutions; or
2. the
Customer's use of the Services or Documentation in a manner contrary to the
instructions given to the Customer by RFDigi (Pty)Ltd
Solutions; or
3. the
Customer's use of the Services or Documentation after notice of the alleged or
actual infringement from RFDigi (Pty)Ltd Solutions or
any appropriate authority.
4. The
foregoing states the Customer's sole and exclusive rights and remedies, and RFIQ
a Division of Bluchip Retail Solutions (including RFIQ a Division of
Bluchip Retail Solutions employees', agents' and sub-contractors’) entire obligations and liability, for
infringement of any intellectual property rights.
12. LIMITATION
OF LIABILITY
1. This
clause 12 sets out the entire financial liability of RFIQ a Division of
Bluchip Retail Solutions (including any liability for the acts or omissions
of its employees, agents and sub-contractors) to the Customer in respect of:
1. any
breach of this Agreement;
2. any
use made by the Customer of the Services and Documentation or any part of them;
and
3. any
representation, statement, act or omission (whether through wilfulness or
negligence) arising under or in connection with this Agreement.
2. Except
as expressly and specifically provided in this Agreement:
1. the
Customer assumes sole responsibility for results obtained from the use of the
Services and the Documentation by the Customer, and for conclusions drawn from
such use. RFDigi (Pty)Ltd Solutions shall have no
liability for any damage caused by errors or omissions in any information,
instructions or scripts provided to RFDigi (Pty)Ltd
Solutions by the Customer in connection with the Services, or any actions
taken by RFDigi (Pty)Ltd Solutions at the Customer's
direction;
2. all
warranties, representations, conditions and all other terms of any kind
whatsoever implied by statute or common law are, to the fullest extent
permitted by applicable law, excluded from this Agreement; and
3. the
Services and the Documentation are provided to the Customer on an "as
is" basis.
3. Nothing
in this Agreement excludes the liability of RFIQ a Division of Bluchip
Retail Solutions:
1. for
death or personal injury caused by RFDigi (Pty)Ltd
Solutions negligence; or
2. for
fraud or fraudulent misrepresentation.
4. Subject
to clause 12.2 and clause 12.3:
1. RFIQ
a Division of Bluchip Retail Solutions shall
not be liable whether in contract, delict, statute or under any other legal
basis for any loss of profits, loss of business, depletion of goodwill and/or
similar losses or loss or corruption of data or information, or pure economic
loss, or for any special, indirect or consequential loss, costs, damages,
charges or expenses however arising under this agreement; and
2. RFIQ
a Division of Bluchip Retail Solutions total
aggregate liability in contract, delict, statute or under any other legal basis
arising in connection with the performance or contemplated performance of this
Agreement shall be limited to the total Subscription Fees paid for the Service
Subscription during the 12 months immediately preceding the date on which the
claim arose.
13. TERM
AND TERMINATION
1. This
Agreement shall, unless otherwise terminated as provided in this clause 13,
commence on the Effective Date and shall continue for the any Subscription Term
and, thereafter, this Agreement shall be automatically renewed for successive
periods of 1 month (each a Renewal Period), unless:
1. either
Party notifies the other party of termination, in writing, at least 30 (thirty)
days before the end of any Initial Subscription Term or any Renewal Period, in
which case this Agreement shall terminate upon the expiry of the applicable
Initial Subscription Term or Renewal Period; or
2. otherwise
terminated in accordance with the provisions of this Agreement;
2. and
any Initial Subscription Term together with any subsequent Renewal Periods
shall constitute the Subscription Term.
3. Without
prejudice to any other rights or remedies to which the Parties may be entitled,
either Party may terminate this Agreement without liability to the other if:
1. the
other Party commits a material breach of any of the terms of this Agreement and
(if such a breach is remediable) fails to remedy that breach within 30 (thirty)
days of that party being notified in writing of the breach; or
2. an
order is made or a resolution is passed for the winding up (whether interim or
final) of the other Party, or circumstances arise which entitle a court of
competent jurisdiction to make a winding-up order in relation to the other
party; or
3. an
order is made for the placing of either Party under business rescue; or
4. a
receiver is appointed of any of the other Party's assets or undertaking, or if
circumstances arise which entitle a court of competent jurisdiction or a
creditor to appoint a receiver or manager of the other Party, or if any other
person takes possession of or sells the other Party's assets; or
5. the
other Party makes any arrangement or composition with its creditors, or makes
an application to a court of competent jurisdiction for the protection of its
creditors in any way; or
6. the
other Party ceases, or threatens to cease, to trade; or
7. the
other Party takes or suffers any similar or analogous action in any
jurisdiction in consequence of debt;
4. On
termination of this Agreement for any reason:
1. all
licences granted under this Agreement shall immediately terminate;
2. each
Party shall return and make no further use of any equipment, property,
Documentation and other items (and all copies of them) belonging to the other
Party;
3. RFIQ
a Division of Bluchip Retail Solutions may
destroy or otherwise dispose of any of the Customer Data in its possession
unless RFDigi (Pty)Ltd Solutions receives, no later
than 10 (ten) days after the effective date of the termination of this
Agreement, a written request for the delivery to the Customer of the then most
recent back-up of the Customer Data. RFDigi (Pty)Ltd
Solutions shall use reasonable commercial endeavours to deliver the back-up
to the Customer within 30 (thirty) days of its receipt of such a written
request, provided that the Customer has, at that time, paid all fees and
charges outstanding at and resulting from termination (whether or not due at
the date of termination). The Customer shall pay all reasonable expenses
incurred by RFDigi (Pty)Ltd Solutions in returning or
disposing of Customer Data; and
4. the
accrued rights of the Parties as at termination, or the continuation after
termination of any provision expressly stated to survive or implicitly
surviving termination, shall not be affected or prejudiced.
14.FORCE
MAJEURE
RFDigi (Pty)Ltd Solutions
shall have no liability to the Customer under this Agreement if it is prevented
from or delayed in performing its obligations under this Agreement, or from
carrying on its business, by acts, events, omissions or accidents beyond its
reasonable control, including, without limitation, strikes, lock-outs or other
industrial disputes (whether involving the workforce of RFIQ a Division of
Bluchip Retail Solutions or any other party), failure of a utility service
or transport or telecommunications network, act of God, war, riot, civil
commotion, malicious damage, compliance with any law or governmental order,
rule, regulation or direction, accident, breakdown of plant or machinery, fire,
flood, storm or default of RFDigi (Pty)Ltd Solutions
or sub-contractors, provided that the Customer is notified of such an event and
its expected duration. The Parties agree that, should the force majeure event
last more than 10 (ten) days, either Party may terminate this Agreement by
giving 10 (ten) days’ written notice to the other Party.
15. WAIVER
1. A
waiver of any right under this Agreement is only effective if it is in writing
and it applies only to the Party to whom the waiver is addressed and to the
circumstances for which it is given.
2. Unless
specifically provided otherwise, rights arising under this Agreement are
cumulative and do not exclude rights provided by law.
16. SEVERANCE
1. If
any provision (or part of a provision) of this Agreement is found by any court
or administrative body of competent jurisdiction to be invalid, unenforceable
or illegal, the other provisions shall remain in force.
2. If
any invalid, unenforceable or illegal provision would be valid, enforceable or
legal if some part of it were deleted, the provision shall apply with whatever
modification is necessary to give effect to the commercial intention of the
Parties.
17. ENTIRE
AGREEMENT
1. This
Agreement, and any documents referred to in it, constitute the whole agreement
between the Parties and supersede any previous arrangement, understanding or
agreement between them relating to the subject matter they cover.
2. Each
of the Parties acknowledges and agrees that in entering into this Agreement it
does not rely on any undertaking, promise, assurance, statement, representation,
warranty or understanding (whether in writing or not) of any person (whether
party to this Agreement or not) relating to the subject matter of this
Agreement, other than as expressly set out in this Agreement.
18. ASSIGNMENT
1. The
Customer shall not, without the prior written consent of RFIQ a Division of
Bluchip Retail Solutions, assign, transfer, charge, sub-contract or deal in
any other manner with all or any of its rights or obligations under this
Agreement.
2. RFIQ
a Division of Bluchip Retail Solutions may at
any time assign, transfer, charge, sub-contract or deal in any other manner
with all or any of its rights or obligations under this Agreement.
19.NO
PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to
create a partnership between the Parties, or authorise either Party to act as
agent for the other, and neither Party shall have the authority to act in the
name or on behalf of or otherwise to bind the other in any way (including, but
not limited to, the making of any representation or warranty, the assumption of
any obligation or liability and the exercise of any right or power).
20. NOTICES
1. Any
notice required to be given under this Agreement shall be in writing and shall
be delivered by hand or sent by registered post to the other Party at its
address set out in this Agreement, or such other address as may have been
notified by that Party for such purposes, or sent by fax to the other Party's
fax number as set out in this Agreement.
2. A
notice delivered by hand shall be deemed to have been received when delivered
(or if delivery is not in business hours, at 9 am on the first Business Day
following delivery). A correctly addressed notice sent by registered post shall
be deemed to have been received at the time at which it would have been
delivered in the normal course of post.
3. A
notice sent by fax shall be deemed to have been received at the time of
transmission (as shown by the timed printout obtained by the sender);
4. Notwithstanding
anything to the contrary contained in this Agreement, a written notice or
communication actually received by a Party at its chosen address set out above,
shall be an adequate written notice of communication to such Party.
21. GOVERNING
LAW AND JURISDICTION
1. This
Agreement and any disputes or claims arising out of or in connection with it or
its subject matter or formation (including non-contractual disputes or claims)
are governed by, and construed in accordance with, the law of the Republic of
South Africa.
2. The
Parties irrevocably agree the non-exclusive jurisdiction of the South Gauteng
High Court, Johannesburg to settle any dispute or claim that arises out of or
in connection with this Agreement or its subject matter or formation.
Schedule 1 - Subscription
Fees
1. SUBSCRIPTION
FEES
The Subscription Fees are calculated daily and invoiced in
advance. The fee is calculated on a pay-per-consumption basis of the following
unit factors:
▪
A fixed monthly fee of xxxx, plus;
▪
A monthly fee of xxx per asset in an active or pending state on
the register, plus;
▪
A monthly fee of xxx per location in an active state, plus;
▪
A monthly fee of xxxx per authenticated user in an active state.
2. The
fee is invoiced monthly and calculated pro-rata each day at 8pm by an automated
process
3. ADDITIONAL
FEES
Manual import of Client Data into the service is charged
separately on a time and materials basis or any other services requested by the
Customer that falls outside the Subscription Fees as stated under Schedule 1
section 1.