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1. Definitions and Interpretations
1.1 In these terms
and conditions the following definitions apply
1.2 Defining
Variables. Variables have the meanings or descriptions given in Clause 1
(Definitions and Interpretations). However, if the Agreement omits or does not
define a Variable, the default meaning will be “none” or “not applicable” and
the correlating clause, sentence, or section does not apply to that Agreement.
1.3 Provider shall mean GloRep (Pty) Ltd a
company incorporated in accordance with the laws of the Republic of South
Africa, with its chosen domicilium citandi et executandi at Blueberry Office
Park, Unit 25, Block D, 35 Apple Street, Honeydew, Gauteng, South Africa
1.4 Customer shall mean any individual,
company, corporation, partnership, association, or other entity that engages in
a transaction with Provider, accesses the System and/or the Services on the
basis of these Terms and Conditions, whereby they purchase, lease, or use the
products, or services provided by Provider. The term “Customer”
includes all persons acting on behalf of or under the direction of the said
individual or entity, including but not limited to employees, agents,
contractors, and representatives.
1.5 “Affiliate” means an entity that, directly
or indirectly, controls, is under the control of, or is under common control
with a party, where control means having more than fifty percent (50%) of the
voting stock or other ownership interest.
1.6 “Agreement” means this agreement together
with any annexures and Addenda hereto, all as may be amended in writing by the
Parties from time to time.
1.7 “Applicable Data Protection Laws” means the
Applicable Laws that govern how the Cloud Service may process or use an
individual’s personal information, personal data, personally identifiable
information, or other similar term.
1.8 “Applicable Laws” means the laws, rules,
regulations, court orders, and other binding requirements of a relevant
government authority that apply to or govern Provider or Customer.
1.9 “Beta Product” means an early or prerelease
feature or version of the Product that is identified as beta or similar, or a
version of the Product that is not generally available.
1.10 “Cloud Service” means the product described in
the Agreement.
1.11 “Confidential Information” means information in
any form disclosed by or on behalf of a Discloser, including before the
Subscription Start Date, to a Recipient in connection with this Agreement that
(a) the Discloser identifies as “confidential”, “proprietary”, or the like; or
(b) should be reasonably understood as confidential or proprietary due to its
nature and the circumstances of its disclosure. Confidential Information
includes the existence of this Agreement. Customer’s Confidential
Information includes non-public Customer Content and Provider’s Confidential
Information includes non-public information about the Product.
1.12 “Covered Claim” means either a Provider
Covered Claim or Customer Covered Claim.
1.13 “Customer Content” means data, information,
or materials submitted by or on behalf of Customer or Users to
the Product but excludes Feedback.
1.14 “Customer Covered Claims ” shall mean
any action, proceeding, or claim that (1) the Customer Content, when used
according to the terms of the Agreement, violates, misappropriates, or
otherwise infringes upon anyone else’s intellectual property or other
proprietary rights, or (2) results from Customer’s breach or alleged breach of
Section 3.1 (Restrictions on Customer).
1.15 “Discloser” means a party to this Agreement when
the party is providing or disclosing Confidential Information to the other
party.
1.16 “Documentation” means the usage manuals and
instructional materials for the Cloud Service or Software that are made
available by Provider.
1.17 “Embargoed Country” means any country or region
to or from where Applicable Laws generally restrict the export or import of
goods, services, or money.
1.18 “Feedback” means suggestions, feedback, or
comments about the Product or related offerings.
1.19 “Fees” means the applicable
amounts described in an Agreement
1.20 “Force Majeure Event” means an unforeseen event
outside a party’s reasonable control where the affected party took reasonable
measures to avoid or mitigate the impacts of the event. Examples of these kinds
of events include unpredicted natural disasters like a major earthquake, war,
pandemic, riot, act of terrorism, or public utility or internet failure.
1.21 “GDPR” means European Union Regulation 2016/679
as implemented by local law in the relevant European Union member nation, and
by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in
the United Kingdom.
1.22 “General Cap Amount” shall mean the Fees
paid or payable by Customer to Provider in the 12-month period immediately
before the claim
1.23 “Indemnifying Party” means a party to this
Agreement when the party is providing protection for a particular Covered
Claim.
1.24 “Non-Renewal Notice” shall mean at least 2
working days before the end of the current Subscription Period
1.25 “OFAC” means the United States
Department of Treasury’s Office of Foreign Assets Control.
1.26 “Payment Process” shall mean
Automatic Payment. Customer authorises Provider to bill and charge Customers
payment method on file once per month for immediate payment or deduction
without further approval.
1.27 “Personal Data” will have the meaning(s) set
forth in the Applicable Data Protection Laws for personal information, personal
data, personally identifiable information, or other similar term.
1.28 “POPI Act” shall mean the Protection
of Personal Information Act 4 of 2013 as amended from time to time
1.29 “Product” means the Cloud Service,
Software, and Documentation.
1.30 “Professional Services” shall mean the
products and services selected by the Customer and which are rendered by
Provider to the Customer.
1.31 “Prohibited Data” means (a) patient, medical, or
other protected health information regulated by the Health Insurance
Portability and Accountability Act; (b) credit, debit, bank account, or other
financial account numbers; (c) social security numbers, driver’s licence numbers,
or other unique and private government ID numbers; (d) special categories of
data as defined in the Applicable Data Protection Laws; and (e) other similar
categories of sensitive information as set forth in the Applicable Data
Protection Laws.
1.32 “Protected Party” means a party to this
Agreement when the party is receiving the benefit of protection for a
particular Covered Claim.
1.33 “Provider Covered Claims” shall mean any
action, proceeding, or claim that the Cloud Service, when used by the Customer
according to the terms of the Agreement, violates, misappropriates, or
otherwise infringes upon anyone else’s intellectual property or other
proprietary rights.
1.34 “Recipient” means a party to this Agreement
when the party receives Confidential Information from the other party.
1.35 “Software” means the client-side software or
applications made available by Provider for Customer to
install, download (whether onto a machine or in a browser), or execute as part
of the Product.
1.36 “Subscription Period” shall mean length of
access, in terms of this Agreement the Subscription period shall be month to
month unless otherwise specifically stipulated
1.37 “Subscription Start Date” shall mean the date
that the Service was first Subscribed to
1.38 “Usage Data” means data and information about
the provision, use, and performance of the Product and related offerings based
on Customer’s or User’s use of the Product.
1.39 “Use Limitations” shall mean minimum system
requirements such as an adequate camera quality for biometrics and document
uploads so as not to impede the Service
1.40 “User” means any individual who uses the Product
on Customer’s behalf or through Customer’s account.
1.41 “Variable” means a word or phrase
that is highlighted and capitalised, such as Subscription Period or Governing
Law.
2. Service
2.1 Access
and Use. Subject to the terms of this Agreement, Customer may
(a) access and use the Cloud Service; and (b) use the included Software and
Documentation only as needed to access and use the Cloud Service, in each case,
for its internal business purposes. Provider will perform the Professional
Services and Customer will reasonably cooperate with Provider to allow the
performance of Professional Services, including providing Customer Content as
needed. Provider is not responsible for any inability to perform the
Professional Service if Customer does not cooperate as reasonably
requested.
2.2 User
Accounts. Customer is responsible for all actions on
Users’ accounts and for all Users’ compliance with this Agreement. Customer and
Users must protect the confidentiality of their passwords and login
credentials. Customer will promptly notify Provider if
it suspects or knows of any fraudulent activity with its accounts, passwords,
or credentials, or if they become compromised.
2.3 Feedback
and Usage Data. Customer may, but is not required
to, give Provider Feedback, in which case Customer gives
Feedback “AS IS”. Provider may use all Feedback freely without
any restriction or obligation. In addition, Provider may
collect and analyse Usage Data, and Provider may freely use
Usage Data to maintain, improve, enhance, and promote Provider’s products
and services without restriction or obligation. However, Provider may
only disclose Usage Data to others if the Usage Data is aggregated and does not
identify Customer or Users.
2.4 Customer
Content. Provider may copy, display, modify, and use
Customer Content only as needed to provide and maintain the Product and related
offerings. Customer is responsible for the accuracy and
content of Customer Content.
2.5 Machine
Learning. Usage Data and Customer Content may be used to develop, train, or
enhance artificial intelligence or machine learning models that are part
of Provider’s products and services, including third-party
components of the Product, and Customer authorises Provider to
process its Usage Data and Customer Content for such purposes. However, (a)
Usage Data and Customer Content must be aggregated before it can be used for
these purposes, and (b) Provider will use commercially
reasonable efforts consistent with industry standard technology to de-identify
Usage Data and Customer Content before such use. Nothing in this section will
reduce or limit Provider’s obligations regarding Personal Data
that may be contained in Usage Data or Customer Content under Applicable Data
Protection Laws. Due to the nature of artificial intelligence and machine
learning, information generated by these features may be incorrect or
inaccurate. Product features that include artificial intelligence or machine
learning models are not human and are not a substitute for human oversight.
3. Restrictions
& Obligations
3.1 Restrictions
on Customer.
(a) Except as expressly permitted by this
Agreement, Customer will not (and will not allow anyone else
to): (i) reverse engineer, decompile, or attempt to discover any source code or
underlying ideas or algorithms of the Product (except to the extent Applicable
Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense,
lend, distribute, rent, or otherwise allow others to access or use the Product;
(iii) remove any proprietary notices or labels; (iv) copy, modify, or create
derivative works of the Product; (v) conduct security or vulnerability tests on,
interfere with the operation of, cause performance degradation of, or
circumvent access restrictions of the Product; (vi) access accounts,
information, data, or portions of the Product to which Customer does
not have explicit authorization; (vii) use the Product to develop a competing
service or product; (viii) use the Product with any High Risk Activities or
with any activity prohibited by Applicable Laws; (ix) use the Product to obtain
unauthorised access to anyone else’s networks or equipment; or (x) upload,
submit, or otherwise make available to the Product any Customer Content to
which Customer and Users do not have the proper rights.
(b) Use of the Product must comply with
all Documentation and Use Limitations.
3.2 Suspension.
If Customer (a) has an outstanding, undisputed balance on its
account for more than 30 days; (b) breaches Section 3.1 (Restrictions on
Customer); or (c) uses the Product in violation of the Agreement or in a way
that materially and negatively impacts the Product or others, then Provider may
temporarily suspend Customer’s access to the Product with or
without notice. However, Provider will try to inform Customer before
suspending Customer’s account when practical. Provider will
reinstate Customer’s access to the Product only if Customer resolves
the underlying issue.
4. Privacy
& Security
4.1 Protection
of Personal Information (POPI)
4.2 Prohibited
Data. Customer will not (and will not allow anyone
else to) submit Prohibited Data to the Provider unless authorised by the
Provider in writing.
5. Payment
& Taxes
5.1 Fees.
Unless otherwise specified, all Fees are in ZAR, South African Rands and are
exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with
specific termination rights given in the Agreement, Fees are non-refundable.
5.2 Invoicing.
For a Payment Process with invoicing on a platform
subscription , Customer can access all invoices in the Customer Portal. For
Enterprise Solutions invoices will be on request. All usage-based fees
are due in advance..
5.3 Automatic
Payment. For a Payment Process with automatic
payment, Provider will automatically charge the credit card,
debit card, or other payment method on file for Fees according to the Payment
Process and Customer authorises all such charges. In
this case, Provider will make a copy of Customer’s bills
or transaction history available to Customer.
5.4 Taxes. Customer is
responsible for all taxes that apply to Fees, including sales, use, VAT, GST,
or withholding, that Provider itemises and includes in an
invoice. However, Customer is not responsible for Provider’s income
taxes.
5.5 Payment. Customer will
pay Provider Fees in ZAR (South AFrican Rands), unless
otherwise specified a different currency, according to the Payment
Process.
5.6 Payment
Dispute. If Customer has a good-faith disagreement
about the Fees charged or invoiced, Customer must notify Provider about
the dispute before payment is due, or within 30 days of an automatic payment,
and must pay all undisputed amounts on time. The parties will work together to
resolve the dispute within 15 days. If no resolution is agreed, each party may
pursue any remedies available under the Agreement or Applicable Laws.
5.7 Annual
Cost Adjustment Clause.The monthly costs outlined in the sales agreement
will be subject to an annual adjustment based on the Consumer Price Index (CPI)
for the applicable region. Should general operational costs increase beyond the
CPI during the adjustment period, the Provider reserves the right to
proportionately increase the costs beyond CPI, provided that a detailed
explanation and notice are given to the Customer at least 30 days prior to the
effective date of such adjustment.
6. Term
& Termination
6.1 Subscription
Period. This Agreement will start on the Subscription Start
Date, continue through the Subscription Period, and
automatically renew for additional Subscription Periods unless
one party gives notice of non-renewal to the other party before the Non-Renewal
Notice Date.
6.2 Agreement
Term. This Agreement will start on Subscription Start Date and
continue for the longer of 5 (five) years or until all Subscription
Periods have ended. Should the Agreement not be terminated at the end
of the initial period, the Agreement shall continue for an indefinite period.
6.3 Termination.
Either party may terminate the Agreement immediately:
(a) if the other party fails to cure a
material breach of the Agreement following 30 days notice;
(b) upon notice if the other party (i)
materially breaches the Agreement in a manner that cannot be cured; (ii)
dissolves or stops conducting business without a successor; (iii) makes an
assignment for the benefit of creditors; or (iv) becomes the debtor in
insolvency, receivership, or bankruptcy proceedings that continue for more than
60 days.
6.4 Force
Majeure. Either party may terminate the Agreement upon notice if a
Force Majeure Event prevents the Product from materially operating for 30 or
more consecutive days. Provider will pay to Customer a
prorated refund of any prepaid Fees for the remainder of the Subscription Period.
A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued
prior to termination.
6.5 Effect
of Termination. Termination of the Agreement will automatically
terminate all Agreements. Upon any expiration or termination:
(a) Customer will no
longer have any right to use the Product.
(b) Upon Customer’s request, Provider will
delete Customer Content within 60 days.
(c) Each Recipient will return or destroy
Discloser’s Confidential Information in its possession or control.
(d) Provider will submit
a final bill or invoice for all outstanding Fees accrued before termination
and Customer will pay the invoice according to Section 5
(Payment & Taxes).
6.6 Survival.
(a) The following sections will survive
expiration or termination of the Agreement: Section 1 (Definitions), Section
2.3 (Feedback and Usage Data), Section 2.5 (Machine Learning), Section 3.1
(Restrictions on Customer), Section 5 (Payment & Taxes) for Fees accrued or
payable before expiration or termination, Section 6.5 (Effect of Termination),
Section 6.6 (Survival), Section 7 (Representations & Warranties), Section 8
(Disclaimer of Warranties), Section 9 (Limitation of Liability), Section 10
(Indemnification), Section 11 (Confidentiality), Section 12 (Reservation of
Rights), and Section 13 (General Terms)..
(b) Each Recipient may retain Discloser’s
Confidential Information in accordance with its standard backup or record
retention policies maintained in the ordinary course of business or as required
by Applicable Laws, in which case Section 4 (Privacy & Security) and
Section 11 (Confidentiality) will continue to apply to retained Confidential
Information.
7. Representations
& Warranties
7.1 Mutual.
Each party represents and warrants to the other that: (a) it has the legal
power and authority to enter into this Agreement; (b) it is duly organised,
validly existing, and in good standing under the Applicable Laws of the
jurisdiction of its origin; and (c) it will comply with all Applicable Laws in
performing its obligations or exercising its rights in this Agreement.
7.2 From
Customer. Customer represents and warrants that it,
all Users, and anyone submitting Customer Content each have and will continue
to have all rights necessary to submit or make available Customer Content to
the Product and to allow the use of Customer Content as described in the
Agreement. Where Provider is required by any law, to investigate a matter, it
will cooperate with such an investigation so far as it is related to the
Customer. Customer acknowledges and understands that should it conduct business
operations in the Republic of South Africa, Customer is expected to know its
obligations under the Prevention and Combating Corrupt Activities Act and/or
any other applicable law. Customer agrees to comply with Providers Anti Bribery
and Corruption Policy.
7.3 From
Provider. Provider represents and warrants to Customer that
it will not materially reduce the general functionality of the Cloud Service
during the Subscription Period.
7.4 Provider
Warranty Remedy. If Provider breaches the warranty
in Section 7.3 (Representations & Warranties from Provider), Customer must
give Provider notice (with enough detail for Provider to
understand or replicate the issue) within 45 days of discovering the issue.
Within 45 days of receiving sufficient details of the warranty issue, Provider will
attempt to restore the general functionality of the Cloud Service. If Provider cannot
resolve the issue, Customer may terminate the affected
Agreement and Provider will pay to Customer a
prorated refund of prepaid Fees for the remainder of the Subscription
Period. Provider’s restoration obligation, and Customer’s termination
right, are Customer’s only remedies if Provider does
not meet the warranty in Section 7.3 (Representations & Warranties from
Provider).
8. Disclaimer
of Warranties
8.1 Provider makes
no guarantees that the Product will always be safe, secure, or error-free, or
that it will function without disruptions, delays, or imperfections. The
warranties in Section 7 (Representations & Warranties) do not apply to any
misuse or unauthorised modification of the Product, nor to any product or
service provided by anyone other than Provider. Except for the
warranties in Section 7 (Representations & Warranties), Provider and Customer each disclaim
all other warranties and conditions, whether express or implied, including the
implied warranties and conditions of merchantability, fitness for a particular
purpose, title, and non-infringement. These disclaimers apply to the
maximum extent permitted by Applicable Laws.
9. Limitation
of Liability
9.1 Liability
Caps.
Without prejudice to any rights of the Provider at law or in
terms of this Agreement, the Client agrees to indemnify the Provider against
any loss arising from this Agreement due to the gross negligence of the Client
but subject to the Client’s liability not under any circumstances exceeding an
amount equal to the General Cap Amount.
9.2 Damages
Waiver. Except as provided in Section 9.4 (Exceptions), under no
circumstances will either party be liable to the other for lost profits or
revenues (whether direct or indirect), or for consequential, special, indirect,
exemplary, punitive, or incidental damages relating to this Agreement, even if
the party is informed of the possibility of this type of damage in advance.
9.3 Applicability. The
limitations and waivers contained in Sections 9.1 (Liability Caps) and 9.2
(Damages Waiver) apply to all liability, whether in tort (including
negligence), contract, breach of statutory duty, or otherwise.
9.4 Exceptions.
Nothing in this Agreement will limit, exclude, or restrict a party’s liability
to the extent prohibited by Applicable Laws.
10. Indemnification
10.1 Protection by
Provider. Provider will indemnify, defend, and hold
harmless Customer from and against all Provider
Covered Claims made by someone other than Customer, Customer’s Affiliates,
or Users, and all out-of-pocket damages, awards, settlements, costs, and
expenses, including reasonable attorneys’ fees and other legal expenses, that
arise from the Provider Covered Claims.
10.2 Protection by
Customer. Customer will indemnify, defend, and hold
harmless Provider from and against all Customer
Covered Claims made by someone other than Provider or
its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and
expenses, including reasonable attorneys’ fees and other legal expenses, that
arise from the Customer Covered Claims.
10.3 Procedure.
The Indemnifying Party’s obligations in this section are contingent upon the
Protected Party: (a) promptly notifying the Indemnifying Party of each Covered
Claim for which it seeks protection; (b) providing reasonable assistance to the
Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the
Indemnifying Party sole control over the defence and settlement of each Covered
Claim. A Protected Party may participate in a Covered Claim for which it seeks
protection with its own attorneys only at its own expense. The Indemnifying
Party may not agree to any settlement of a Covered Claim that contains an
admission of fault or otherwise materially and adversely impacts the Protected
Party without the prior written consent of the Protected Party.
10.4 Changes to
Product. If required by settlement or court order, or if deemed
reasonably necessary in response to a Provider Covered Claim, Provider may:
(a) obtain the right for Customer to continue using the
Product; (b) replace or modify the affected component of the Product without
materially reducing the general functionality of the Product; or (c) if neither
(a) nor (b) are reasonable, terminate the Agreement and issue a pro-rated
refund of prepaid Fees for the remainder of the Subscription Period.
10.5 Exclusions.
(a) Provider’s obligations
as an Indemnifying Party will not apply to Provider Covered Claims that
result from (i) modifications to the Product that were not authorised by Provider or
that were made in compliance with Customer’s instructions;
(ii) unauthorised use of the Product, including use in violation of this
Agreement; (iii) use of the Product in combination with items not provided
by Provider; or (iv) use of an old version of the Product where a
newer release would avoid the Provider Covered Claim.
(b) Customer’s obligations
as an Indemnifying Party will not apply to Customer Covered Claims that
result from the unauthorised use of the Customer Content, including use in
violation of this Agreement.
10.6 Exclusive Remedy.
This Section 10 (Indemnification), together with any termination rights,
describes each Protected Party’s exclusive remedy and each Indemnifying Party’s
entire liability for a Covered Claim.
11. Confidentiality
11.1 Non-Use and
Non-Disclosure. Except as otherwise authorised in the Agreement or as
needed to fulfil its obligations or exercise its rights under this Agreement,
Recipient will not (a) use Discloser’s Confidential Information; nor (b)
disclose Discloser’s Confidential Information to anyone else. In addition,
Recipient will protect Discloser’s Confidential Information using at least the
same protections Recipient uses for its own similar information but no less
than a reasonable standard of care.
11.2 Exclusions.
Confidential Information does not include information that (a) Recipient knew
without any obligation of confidentiality before disclosure by Discloser; (b)
is or becomes publicly known and generally available through no fault of
Recipient; (c) Recipient receives under no obligation of confidentiality from
someone else who is authorised to make the disclosure; or (d) Recipient
independently developed without use of or reference to Discloser’s Confidential
Information.
11.3 Required
Disclosures. Recipient may disclose Discloser’s Confidential
Information to the extent required by Applicable Laws if, unless prohibited by
Applicable Laws, Recipient provides Discloser reasonable advance notice of the
required disclosure and reasonably cooperates, at Discloser’s expense, with
Discloser’s efforts to obtain confidential treatment for the Confidential
Information.
11.4 Permitted
Disclosures. Recipient may disclose Discloser’s Confidential
Information to Users, employees, advisors, contractors, and representatives who
each have a need to know the Confidential Information, but only if the person
or entity is bound by confidentiality obligations at least as protective as
those in this Section 11 (Confidentiality) and Recipient remains responsible
for everyone’s compliance with the terms of this Section 11 (Confidentiality).
12. Reservation
of Rights
12.1 Except for the limited
licence to use Software and Documentation in Section 2.1 (Access and
Use), Provider retains all right, title, and interest in and
to the Product, whether developed before or after the Subscription
Start Date. Except for the limited rights in Section 2.4 (Customer Content)
and 2.5 (Machine Learning), Customer retains all right, title,
and interest in and to the Customer Content.
13. General
Terms
13.1 Entire Agreement.
This Agreement is the only agreement between the parties about its subject and
this Agreement supersedes all prior or contemporaneous statements (whether in
writing or not) about its subject. Provider expressly rejects
any terms included in Customer’s purchase order or similar
document, which may only be used for accounting or administrative purposes. No
terms or conditions in any Customer documentation or online
vendor portal will apply to Customer’s use of the Product
unless expressly agreed to in a legally binding written agreement signed by an
authorised Provider representative, regardless of what such
terms may say.
13.2 Modifications,
Severability, and Waiver. Any waiver, modification, or change to the
Agreement must be in writing and signed or electronically accepted by each
party. If any term of this Agreement is determined to be invalid or
unenforceable by a relevant court or governing body, the remaining terms of
this Agreement will remain in full force and effect. The failure of a party to
enforce a term or to exercise an option or right in this Agreement will not
constitute a waiver by that party of the term, option, or right.
13.3 Governing Law and
Chosen Courts. This Agreement shall be interpreted and governed in
all respects by the laws of the Republic of South Africa. The parties hereby
consent and submit to the non-exclusive jurisdiction of the Magistrate’s Court
of the Republic of South Africa for the purpose of all or any legal proceedings
arising from or concerning this Agreement, notwithstanding that the amount
claimed or value of the dispute might be in excess of the Magistrate’s Court
Jurisdiction.
13.4 Injunctive Relief.
Despite Section 13.3 (Governing Law and Chosen Courts), a breach of Section 11
(Confidentiality) or the violation of a party’s intellectual property rights
may cause irreparable harm for which monetary damages cannot adequately
compensate. As a result, upon the actual or threatened breach of Section 11
(Confidentiality) or violation of a party’s intellectual property rights, the
non-breaching or non-violating party may seek appropriate equitable relief,
including an injunction, in any court of competent jurisdiction without the
need to post a bond and without limiting its other rights or remedies.
13.5 Non-Exhaustive
Remedies. Except where the Agreement provides for an exclusive
remedy, seeking or exercising a remedy does not limit the other rights or
remedies available to a party.
13.6 Assignment.
Neither party may assign any rights or obligations under this Agreement without
the prior written consent of the other party. However, either party may assign
this Agreement upon notice if the assigning party undergoes a merger, change of
control, reorganisation, or sale of all or substantially all its equity,
business, or assets to which this Agreement relates. Any attempted but
non-permitted assignment is void. This Agreement will be binding upon and inure
to the benefit of the parties and their permitted successors and assigns.
13.7 Beta Products.
If Provider gives Customer access to a Beta
Product, the Beta Product is provided “AS IS” and Section 7.3 (Representations
& Warranty From Provider) does not apply to any Beta Products. Customer acknowledges
that Beta Products are experimental in nature and may be modified or removed
at Provider’s discretion with or without notice.
13.8 Logo Rights. Provider may
identify Customer and use Customer’s name and
logo in marketing to identify Customer as a user of Provider’s products
and services.
13.9 Notices.
Any notice, request, or approval about the Agreement must be in writing.
Notices will be deemed given (a) upon confirmed delivery if by email,
registered or certified mail, or personal delivery; or (b) two days after
mailing if by overnight commercial delivery.
13.10 Independent Contractors.
The parties are independent contractors, not agents, partners, or joint
venturers. Neither party is authorised to bind the other to any liability or
obligation.
13.11 No Third-Party Beneficiary.
There are no third-party beneficiaries of this Agreement.
13.12 Force Majeure.
Neither party will be liable for a delay or failure to perform its obligations
of this Agreement if caused by a Force Majeure Event. However, this section
does not excuse Customer’s obligations to pay Fees.
13.13 Anti-Bribery.
Neither party will take any action that would be a violation of any Applicable
Laws that prohibit the offering, giving, promising to offer or give, or
receiving, directly or indirectly, money or anything of value to any third
party to assist Provider or Customer in
retaining or obtaining business.
13.14 Titles and Interpretation.
Section titles are for convenience and reference only. All uses of “including”
and similar phrases are non-exhaustive and without limitation. The United
Nations Convention for the International Sale of Goods and the Uniform Computer
Information Transaction Act do not apply to this Agreement.
13.15 Signature. This
Agreement may be signed in counterparts, including by electronic copies or
acceptance mechanism. Each copy will be deemed an original and all copies, when
taken together, will be the same agreement.
Last updated 02 December 2024
