TEPSA CLOUD SERVICES GENERAL TERMS OF SERVICE
Last Modified: June 01, 2017
"TEPSA" refers to TEPSA (PTY) LTD, a South African registered company with registration number 2003/031941/07. "Services" refers to the two categories of Services available from TEPSA: (a) Services that are developed by and licensed to end users by TEPSA ("TEPSA Service"); and (b) Services that are developed and licensed to end users by a third-party vendor (such vendors are referred to in this Agreement as a "Third Party Vendor" and their Services are referred to as " Third Party Vendor Services"). "Terms" refers to the terms of this Agreement as well as the additional terms, conditions and policies related to the Services posted on online on our Website or a Third-Party Vendor's website. "User" or "customer" refers to end users of the Services who purchase such Services through an TEPSA Reseller. "You" or "Your" in this Agreement refers to any individual or entity who accepts this Agreement, has access to Your account, uses the Services or the Site, or orders the Services, and includes both end users of the Services as well as TEPSA Resellers (defined below).
2. TEPSA RESELLERS
If You are an authorized reseller customer of TEPSA or one of TEPSA's affiliates ("TEPSA Reseller"), and unless otherwise agreed to in a separate written agreement between us in respect of Services, You agree that TEPSA's sales terms and conditions set forth by this Agreement, govern Your purchase of Services for resale to Your customers as well as use of the Site by You or Your customers. As an TEPSA Reseller, You acknowledge that You are responsible for the acts or omissions of Your customers that use the Site or the Services and confirm that You have disclosed and that Your customers agree to their responsibilities and obligations under this Agreement. If You become aware that any customer is violating its obligations under this Agreement, You will immediately notify TEPSA. Failure of Your customers to pay for Services purchased will not relieve You of Your obligation to pay TEPSA for the Services ordered by or through you. You acknowledge that Your purchases of Services are only for resale and not for Your own use, and that you do not qualify as a consumer in accordance with the applicable laws of your territory. You are exclusively liable to Your customers and for providing them with Service support.
3. SERVICE END USERS
If You are an end user of the Services, You acknowledge and agree that You must first contact Your TEPSA Reseller or their designated representative with regard to any Service issues, including any issues with support or payment. You further understand that Your relationship is exclusively with Your TEPSA Reseller from whom you have purchase the Services.
The Site and the Services are only available to users who can form legally binding contracts under applicable laws in the jurisdictions in which the Services are offered. 5. USE, FEES, PAYMENT TERMS AND TAXES (a) USE OF SERVICE(S). TEPSA will specify the term of authorized use of the Service(s), the fees and other charges for the Service(s), any special payment terms, the scope of use, and the numbers, types and identifiers of permitted users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Service(s) in Your order. You may not use or otherwise access the Service(s) in a manner that exceeds Your authorized use. If You exceed Your permitted use of the Service(s), then, You will promptly notify TEPSA and immediately: (i) disable or correct impermissible use; or (ii) purchase additional Service(s) to correspond to actual use. You agree that TEPSA may review Your use of the Service(s), and You will provide any reasonable assistance to verify Your compliance with this Agreement. TEPSA may suspend or terminate Your use of the Service(s) immediately upon written notice of non-compliance identified in such review, in addition to exercising any other rights or remedies TEPSA may have
. (b) FEES AND PAYMENT TERMS.
1) TEPSA Resellers: If You are an TEPSA Reseller, You agree to the following terms set forth in this section. Payment will be accepted by debit authority or EFT only. You agree to pay the fees and charges for the Services as outlined in the registration process and that appear on the Site, as may be amended from time to time. Fees and charges for Services are non-refundable. Charges may include, but are not limited to subscription fees for the relevant service and any applicable taxes. TEPSA will notify You of any such changes by updating the Site or sending notice by e-mail or regular mail. You authorize TEPSA to charge any amounts payable by you, in connection with Your customer's use of the Services, automatically to Your Account You provide in the debit authority authorisation process, regardless of the status of Your account with TEPSA and subject only to the terms and conditions of the agreement between You and Your banking institution. If You fail to make timely payment You agree that TEPSA may, in addition to all other rights and remedies provided to TEPSA hereunder or at law, terminate or suspend the affected Service(s). TEPSA will charge You a reactivation fee of no more than 5% of Your service Fees for each cancelled customer account. You are responsible for billing and collecting any payments for Services from Your customers. To the extent TEPSA provides You with payment frequency options, You agree that You will extend the payment frequency option that You choose to Your customers. If at any time Your fees are more than sixty (60) days in arrears, TEPSA, in its sole and absolute discretion, may deem that You have abandoned Your customers and TEPSA reserves the right to terminate Your customer accounts with cause and assume ownership of Your customers directly, without any financial consideration or relief whatsoever to the TEPSA Reseller upon thirty (30) days' notice. TEPSA may assume the billing and support relationship with TEPSA Resellers' customers directly. TEPSA may also establish such a direct relationship with Your customers in the event You or TEPSA terminates Your TEPSA Reseller account. Quoted prices, including discount structure, are subject to change without notice. 2) End Users: If You are an end user of the Services purchasing the Services from an TEPSA Reseller, Your TEPSA Reseller will invoice Your Service fees to You directly. In the event that you become a customer of TEPSA in accordance with Section 5.(b)(1), and are purchasing the Services directly from TEPSA, TEPSA will invoice Your Service fees to You and You shall make payment directly to TEPSA. (c) TAXES. All payments are exclusive of Federal, state, provincial, local or foreign taxes, duties, tariffs, levies and similar assessments. You agree to bear and be responsible for the payment of all taxes, duties, tariffs, levies, fees and charges of any kind, including sales, use, excise or value added taxes, and all other similar charges (collectively, "Taxes") that are imposed on transactions by or under the authority of any government body, excluding Taxes based solely upon TEPSA's net income. If You are a tax-exempt entity or claim exemption from any Taxes hereunder, You will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, TEPSA will not charge You any Taxes from which You are exempt.
6. GRANT OF USE RIGHTS; OWNERSHIP; CUSTOMER RESTRICTIONS
(a) TEPSA SERVICES. TEPSA hereby grants to you, conditioned upon payment of applicable fees, a non-exclusive, non-assignable, non-transferable, worldwide right during the term of the subscription to access and use TEPSA Services that TEPSA represents to You as being licensable by TEPSA to You under this Agreement. (b) DOCUMENTATION. TEPSA hereby grants to You a non-exclusive, non-assignable, non-transferable, worldwide right during the term of Your subscription to access and use, if any, user documentation relating to the operation and use of the TEPSA Service(s) that may be provided by TEPSA to you, as updated by TEPSA from time to time ("Documentation"). (c) CUSTOMER DATA. Subject to the conditions set forth in Section 14 of this Agreement, you hereby grant TEPSA and applicable Third Party Vendors a non-exclusive, non-transferable, royalty-free, worldwide right to use the electronic data specifically pertaining to You and/or Your users that is processed using the Service(s) (collectively "Customer Data") strictly for the limited purpose of providing the Service(s) to You or an End User. (d) OWNERSHIP. You acknowledge and agree that the Site and any and all related software used in connection with the Services contain proprietary and confidential information of TEPSA or Third Party Vendors or other third parties that is protected by applicable intellectual property rights and other laws. As between TEPSA and You, all rights, title, and interest in and to all intellectual property rights in the TEPSA Service(s) and Documentation are owned exclusively by TEPSA. Except as expressly provided herein, TEPSA does not grant You (and TEPSA expressly reserves for ourselves and any of our licensors) any rights, express or implied, or ownership in the TEPSA or Third Parties' Service(s) and Documentation. TEPSA shall have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right to make, use, sell, offer for sale, import, or otherwise incorporate into TEPSA Service(s) and Documentation, any suggestions, enhancements, recommendations or other feedback provided by You relating to the Service(s) and Documentation. (e) RESTRICTIONS. You shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, loan, transfer, distribute, time share or grant a security interest in the Service(s) or Documentation or any portion of the Site, or make any of them available for access by third parties, including without limitation, in the manner of a service bureau or hosted application (provided that there is no restriction for an TEPSA Reseller reselling the Services as permitted under this Agreement); (ii) create derivative works based on or otherwise modify the Service(s) or Documentation; (iii) disassemble, reverse engineer or decompile the Service(s); (iv) access the Service(s) or Documentation in order to develop a competing product or service; (v) use the Service(s) to provide a service for others; (vi) use or send viruses or other harmful computer code; (vii) interfere with the integrity of the Service(s) in any manner; (viii) remove or modify a copyright or other proprietary rights notice on or in the Service(s) or Documentation; (ix) use the Service(s) to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (x) use a computer or computer network to cause physical injury to the property of another; (xi) violate any law or regulation of the Republic of South Africa, as well as any law or regulation of other countries that may apply to You or the Services including the laws of the countries of where you live (or where your business is headquartered); (xii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Service(s); (xiii) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Service(s); (xiv) disrupt the integrity of the Service(s); (xv) temporarily or permanently remove, copy, add, modify, halt or disable any computer data, computer programs or computer software from a computer or computer network without authorization; (xvi) cause a computer to malfunction, regardless of how long the malfunction persists; (xvii) alter, disable, or erase any computer data, computer programs or computer software without authorization or use them to obtain unauthorized access to the Services or Site; or (xvii) access the Site or Services by any means other than through the interface provided by TEPSA to access the Site or Services. (f) CUSTOMER CONDUCT. You agree that You are responsible for, without limitation, the following: (i) Your implementation of the Service(s); (ii) protecting the names and passwords of the users of the Service(s) and Site and preventing and notifying TEPSA of unauthorized use of the Service(s) or Site; (iii) appointing key designated support contacts for purposes of contacting TEPSA with regard to support questions and/or technical issues and ensuring that such contact information is current with TEPSA; (iv) the lawfulness of each user's acts and omissions; (v) using the Service(s) and Site encryption feature, if and when made available to you, for any of Your data containing sensitive information; (vi) using the Service(s) and Site within the permitted scope and only in accordance with the numbers, types and identifiers of permitted users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Service(s) and Site as set forth in the Terms; and (vii) using the Service(s) and Site only in accordance with applicable documentation. (g) THIRD PARTY SERVICES. Notwithstanding anything to the contrary in this Agreement, Your license to use any Third Party Vendor Services is provided by the Third Party Vendor and not TEPSA, and is subject to any terms and conditions of services as made available by the Third Party Vendor, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses. (h) THIRD PARTY SUPPLIERS AND SOFTWARE. As part of the TEPSA Services, You may be allowed to use certain software (including related documentation) provided by third party licensors. This software is neither sold nor distributed to You and You may use it solely as part of the Services and subject to any terms of service as made available by the third party, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses. You may not transfer such Software outside the TEPSA Services without specific authorization to do so
. 7. SERVICE LEVEL AGREEMENT
S Service Level Agreements may apply to certain Services. TEPSA may change, discontinue or add Service Level Agreements from time to time.
8. WARRANTY DISCLAIMER
(a) TO THE EXTENT PERMITTED BY LAW, THE SITE AND ALL SERVICES PROVIDED BY TEPSA ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. (b) EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, TEPSA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. THIRD PARTY SERVICES ARE PROVIDED AS-IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED; ANY WARRANTY FOR THIRD PARTY SERVICES IS PROVIDED, IF AT ALL, BY THE THIRD PARTY VENDOR FOR SUCH SERVICES. TEPSA MAKES NO OTHER REPRESENTATIONS, PROMISES, WARRANTIES OR UNDERSTANDINGS OF ANY KIND RELATING TO THE SITE, SERVICES, INCLUDING THIRD PARTY SERVICES, OR CONTENT UNDER THIS AGREEMENT. TEPSA SHALL NOT BE LIABLE TO YOU, YOUR CUSTOMERS OR ANY THIRD PARTY FOR ANY CLAIM OR LIABILITY ARISING FROM OR RELATING TO YOUR USE OF THE INTELLECTUAL PROPERTY, THE SERVICES, INCLUDING THIRD PARTY SERVICES, THE SITE, OR FROM THE MANUFACTURE, USE, IMPORTATION OR SALE OF THE SERVICES, OR FOR ANY CLAIM FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND. (c) You represent and warrant that You are a (i) party doing business, (ii) located in a jurisdiction, and (iii) engaged in activities, such that TEPSA is not required to obtain any export license, permit or other approval under applicable laws and regulations including but not limited to export control and/or sanctions regulations of any jurisdiction the laws of which may be implicated by the Terms. Furthermore, You acknowledge and agree that TEPSA has the exclusive authority to monitor such status on a regular basis and, if it should be determined by TEPSA that you, at any point in time, are in violation of any of these representations and warranties, TEPSA has the exclusive authority to immediately terminate any and all Service(s) to You (and any accounts You have with TEPSA) without prior written notice, and You will forfeit any remaining balance on Your account.
You agree to defend, indemnify and hold harmless TEPSA, its affiliates, and their respective directors, officers, shareholders, employees, agents, licensors and advisors ("Indemnified Parties"), from and against any claim, demand, liability, damage, losses, judgments, suit, action, or cause of action, costs and expenses (including, without limitation, reasonable legal fees) arising directly or indirectly out of Your use of the Services or the Site, including, but not limited to (a) Your breach or violation of any provision of the Terms, (b) Your use of any Service or the Site, including Your publication or use of Content that infringes the intellectual property rights of any third party, including, but not limited to, patent, copyright, and trade secret rights, (c) any action taken by TEPSA in investigating a suspected violation of the Terms or as result or finding that a violation has occurred, and (d) costs associated with document production, depositions, interrogatories and related demands arising out of private third party, governmental or regulatory claims in connection with the Services or Site to the extent TEPSA is not a target. For purposes of this indemnity provision, if You are an TEPSA Reseller, references to "Your" includes You and Your customer(s).
10. LIMITATION OF LIABILITY
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY), RESULTING FROM: (i) THE DISRUPTION, USE OR THE INABILITY TO USE THE SERVICE(S), THE SITE OR ANY CONTENT FOR ANY REASON; (ii) ANY THIRD PARTY CLAIMS THAT THE USE BY YOU OF THE SITE, SERVICE OR THE CONTENT VIOLATES ANY INTELLECTUAL PROPERTY RIGHT; (iii) ANY ACTION TAKEN BY THE INDEMNIFIED PARTIES AS PART OF AN INVESTIGATION INTO A SUSPECTED VIOLATION OF THE TERMS OR AS A RESULT OF ITS CONCLUSION THAT YOU HAVE VIOLATED, OR (iv) ANY OTHER MATTERS RELATING TO THE SERVICE(S), THE SITE OR THE CONTENT. (b) YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES SHALL HAVE NO LIABILITY TO YOU FOR ANY CONTENT DOWNLOADED FROM THE SERVICE(S). YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ANY AND ALL CLAIMS UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING UNDER THESE TERMS OR FROM ANY OF TEPSA OR AFFILIATE POLICIES OR THE USE OF THE SITE, THE CONTENT, OR THE SERVICES IS LIMITED TO R 1000.00.
11. TERM AND TERMINATION
(a) TERM AND TERMINATION. This Agreement shall commence upon subscription to any TEPSA Services or Third Party Vendor Services and will remain in force until your use of all of Your subscription to Services end. The initial term of any subscription for Services will be the term specified during the registration process for such Service with TEPSA through the Site. Unless expressly terminated as set forth herein, the subscription to any Service will automatically renew for additional terms at a period equal to the initial term for such Service. You may terminate the subscription to any Service by providing TEPSA notice of such termination at least thirty (30) days prior to the end of the then-current term for such Service. (b) EFFECT OF TERMINATION OF SERVICE. Upon expiration or other termination of the Service(s) for any reason as permitted in this Agreement, You must stop using, and TEPSA will stop providing, the terminated Service(s). In the event of such termination, TEPSA will not refund any prepaid fees for such Service and You will be responsible for all subscription fees until the end of the subscribed to term. TEPSA may terminate this Agreement and any Service subscription at any time for any reason, or no reason, without providing any advance notice to You. (c) SURVIVAL. Upon termination of Service(s) for any reason, You agree that You will immediately pay all amounts owed to TEPSA for Service(s). Any provision required by its construction or required for rights and obligations enforcement, shall survive termination, including, but not limited to, the indemnity provisions, limitations of liability and the survival terms and this Section 13 (Term and Termination).
15. GENERAL PROVISIONS