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OPL Platform - Terms & Conditions
WHEREAS THE PARTIES HAVE ENTERED INTO A SUBSCRIPTION AGREEMENT:
The terms and conditions recorded below will be applicable on the contractual relationship between the
parties sprouting from said Subscription Agreement (“the Agreement”):
1. INTERPRETATION
1.1 The headings of the clauses herein are for the purpose of convenience and reference only and
shall not be used in the interpretation of, nor modify, nor amplify the terms of the Agreement, nor
any clause hereof.
1.2 The following terms shall have the meanings assigned to them hereunder and shall have the
corresponding meanings, namely:
1.2.1 “Agreement” means the Subscription Agreement, including all the annexures and
addendums as the circumstances may provide including any amendments as
amended or reinstated from time to time;
1.2.2 “Applicable Laws” shall mean the applicable South African laws;
1.2.3 “Business days” shall mean a day that is not a Saturday, Sunday or a public holiday
in South Africa;
1.2.4 “Commencement date” shall mean the day on which the Subscriber accepts these
Terms and Conditions electronically;
1.2.5 “Initial Period of Subscription” shall mean a period of 6 (six) months from the
Commencement date;
1.2.6 “Product(s)” shall mean the selected product(s) and/or service(s) as described in
Annexure B;
1.2.7 “Signature Date" shall mean the date of signature of the Agreement by the Party
which signs it last in time;
1.2.8 “Subscriber” shall mean the company which duly enters into the Agreement with the
Provider;
1.2.9 “Subscription” shall mean the subscription entered into in respect of the
products/services;
1.2.10 “Subscription Fee” shall mean the monthly amount payable by the Subscriber
enabling the Subscriber to utilise the bundle of products, including any other fees
and/or payments associated with the bundle of products;
1.2.11 “The Parties” shall mean the Provider and the Subscriber whom have entered into
the Agreement, and “Party” shall have a corresponding meaning and refer to any one
of the Parties as the circumstances may provide;
1.2.12 “Termination date” shall mean the date on which the Agreement is terminated.
1.3 Unless the contexts clearly indicate a contrary intention, any words referring to:
1.3.1 Any reference to one gender includes the other gender and vice a versa;
1.3.2 The singular includes the plural and vice a versa;
1.3.3 Any words which have not been specifically defined in the Agreement but have
obtained a general and commonly understood meaning and context in the industry
will be interpreted as having that meaning and context; and
1.3.4 The headings in the Agreement are used for the sake of convenience only and shall
not govern the interpretation clause to which they relate.
2. COMMENCEMENT, DURATION AND TERMINATION
2.1 The Agreement will commence on the commencement date and, subject to the terms and
conditions hereof, continue for a period of 6 (six) months, after which, unless expressly terminated
by the Subscriber, shall continue on a month-to-month basis until terminated by either Party as in
accordance with the terms contained in the Agreement.
2.2 The Provider may terminate the Agreement immediately if any Subscription Fee and/or any other
fees are not paid by the Subscriber on the due date thereof.
2.3 Termination of the Subscriber’s subscription either by the Provider or the Subscriber will not
discharge the Subscriber from liability for payment in respect of any Subscription Fees and/or other
fees due on a monthly basis or any other basis in terms of the Agreement.
2.4 The Agreement may be terminated by the Subscriber in accordance with the Consumer Protection
Act by providing the Provider with 20 (Twenty) business days’ notice in writing.
2.5 The Provider may suspend, interrupt, change or end any services or any part thereof at any time
for any reason in the Provider’s discretion, while applying reasonable efforts to provide advance
notice to the Consumer, including for example moving hosting of the platform to another service
provider if necessary in order to provide an improved service to the Subscriber.
2.6 Payment by the Subscriber to the Provider will be made by way of debit order or credit card
deduction and the first payment will be collected as soon as practical after the Commencement
date.
2.7 The Provider will not generate invoices to the Subscriber prior to the Subscription Fee being debited
off the Subscriber’s bank account unless specifically requested by the Subscriber to do so.
2.8 The Provider reserves the right to amend or vary any Subscription and/or Subscription Fee from
time to time, within reason and using the inflation rate of the time as guideline. In the event that
the Provider amends its Subscription and/or Subscription Fee, the Provider will provide the
Subscriber with 30 days’ notice prior to such amendment.
2.9 The Subscriber acknowledges that it is not entitled to withhold any payment whatsoever due and
payable to the Provider.
2.10 The Subscriber acknowledges that he/she is not permitted to apply set-off to or demand any
discount, rebate or reduction in respect of any Subscription Fees owed to the service provider.
2.11 The Subscriber will be liable for Attorney and own client costs, including tracing and or collecting
and or any additional expenditure with regards to any efforts by the Provider to collect unpaid
amounts from the Subscriber. Unless the Subscriber declares a dispute regarding the Subscription
Fee payable, it will have been deemed that the Subscriber accepts the Subscription Fee as correct.
2.12 In the event that the Subscriber breaches any payment in terms of the agreement and fails to make
payment of any amount due to the Provider, the Provider may, at its sole discretion;
2.12.1 Cancel the Agreement with immediate effect with or without a claim for damages; or
2.12.2 Take steps that may be necessary to recover any outstanding amount, including
(without limitation) the use of debt collection procedures.
2.13 The Provider may change, modify, update, add or remove portions or in whole of these Terms &
Conditions. Any changes to these Terms & Conditions as mentioned hereinbefore will be
communicated to the Subscriber by e-mail or by posting such changes to the platform from which
the services are rendered. The continued use of the services subsequent to such notice or posting
of changes will be considered notice of the Subscriber’s acceptance of the newly adapted Terms
& Conditions.
3. PAYMENT OF FEES
3.1 In consideration for the subscription, the Subscriber will pay the Provider the fees as set out in the
Subscription Agreement;
3.2 Such fee will be due and payable to the Provider by way of debit order or credit card deduction on
a date suitable as selected by the Subscriber, as authorised by the Subscriber in Annexure A to
the Subscription Agreement.
3.3 Payment of the Subscription Fee will be made in arrears and in accordance with the Subscription
Agreement between the parties.
3.4 The Parties further agree that the fees are dependent on the selected product(s)/service(s) and is
subject to increase.
4. GENERAL OBLIGATIONS
4.1 The Provider will:
4.1.1 comply with all other applicable laws, ordinances, decrees, rules and regulations and
service standards relating in any manner to the performance by the Provider of the
obligations in terms of the Agreement;
4.1.2 Keep and maintain all records and documents as the Subscriber may reasonably
require the Provider to keep in the performance of the subscription in terms of the
Agreement;
4.1.3 maintain and update the Product(s)/Service(s) as and when necessary.
5. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
5.1 The Provider may provide certain information to the Subscriber during the subsistence of the
Agreement.
5.2 All content accessed by the Subscriber related to the product(s)/service(s) (the “content”) are
provided by the Provider, its affiliates or subsidiaries, or any other third party as authorised by said
third party.
5.3 All proprietary works, whether comprising the content or otherwise, as well as any compilation of
the proprietary works, are the property of the Provider, its affiliates or subsidiaries, or any other
third party, and protected as such or otherwise under the Copyright Act (No. 98 of 1978).
5.4 The Provider may make any changes to the content and/or the product(s)/service(s) with
reasonable notice to the Subscriber.
5.5 All rights, title and interest to the content and/or the product(s)/service(s) are reserved and retained
by the Provider, its affiliates or subsidiaries, or any other third party as the case may be.
5.6 Except as specified in the Agreement, the Subscriber is not granted a license or any other right
including under copyright, trade mark, patent or other intellectual property rights in or to the content
and/or the product(s)/service(s).
6. LIMITED WARRANTY
6.1 The Provider makes no representation or warranty as to the accuracy or completeness of the
product(s)/service(s) and/or the content.
6.2 The Provider expressly disclaims all warranties, whether express, implied or statutory, as to any
aspect of the product(s)/service(s) and/or the content, its operation or the services to be performed
by the content, including without limitation, warranties of merchantability, fitness for a particular
purpose, design, condition, capacity, performance, title and non-infringement of third party rights.
6.3 The Provider does not warrant that the product(s)/service(s) and/or the content will operate
uninterrupted or are error-free or that errors will be corrected.
7. LIMITATION OF LIABILITY
7.1 Subject to sections 43(5) and 43(6) of ECTA (and only to the extent that the Subscriber is a
consumer as defined in the ECTA), and to the extent permitted by law, the Provider, its affiliates or
subsidiaries, or any other third party who may own the product(s)/service(s) and/or the content as
well as their suppliers, employees, directors partners and agents will not be liable for any damage,
or loss or liability of any nature (whether direct, indirect, special, incidental or consequential
damages or lost profits, or cost of procurement of substitute goods, technology or services) incurred
by the Subscriber or any third party whoever as a result of any action or omission. The Provider
makes no warranty or representation as to the availability, accuracy or completeness of the content,
or any third-party content accessible via an Internet link.
7.2 Neither the Provider, nor any holding company, affiliate or subsidiary of the Provider or Owners will
be held responsible for any damage of any kind, related to the use of, or the inability to access or
use the product(s)/service(s) and/or the content or any functionality, or of any linked
product(s)/service(s) and/or content to the extent permissible by law.
7.3 The Subscriber shall defend, indemnify and hold harmless the Provider, its affiliates or subsidiaries,
or any other third party who may own the product(s)/service(s) and/or the content as well as their
suppliers, employees, directors partners, affiliates and agents from and against any and all claims,
loss, damage, settlement, costs or expense (including legal expenses), as incurred, resulting from,
or arising out of the Agreement by the Subscriber or any third party.
8. CONFLICT
8.1 In the event of any conflict between the provisions of the Agreement and these Terms & Conditions,
the provisions of the Agreement will prevail.
9. CONFIDENTIALITY
9.1 The Parties anticipate that during the course of the Agreement, the parties may receive or become
privy to the confidential Information of the other party.
9.2 In return for the disclosure of confidential Information being made available by any Party to the
other, the recipient of such confidential Information shall:
9.2.1 Keep the confidential Information secret and ensure the proper and secure storage of
all confidential Information;
9.2.2 Use the confidential Information only when such use is necessitated by the effective
functioning of the Agreement;
9.2.3 Not, save as required by law, disclose the confidential Information (or allow it to be
disclosed), in whole or in part, to any person or make copies unless permitted by the
Agreement;
9.2.4 Ensure that no unauthorised disclosures of the confidential information occur; and
9.2.5 Inform the Disclosing Party in writing immediately on becoming aware, or suspecting,
that an unauthorised person has become aware of Confidential Information.
9.3 During the period of the Agreement and subsequent thereto, the Parties will keep confidential and
will not make use of, directly or indirectly, and will not disclose any of the other Party’s trade secrets
or confidential information including, but not limited to, production and concrete technical knowhow
and data, plans, drawings, systems, methods, software, processes, client lists, business
affairs, suppliers' lists, marketing information or financial information, or those of its subsidiary or
associate companies or those of persons who have made disclosures to a Party under conditions
of confidentiality, other than to persons authorised by such Party or those employed by any Party
who is required to know such secrets or to have such information for the purpose of their
employment with any such Party.
9.4 The obligations contained in this clause will survive the termination of this Agreement and neither
Party will at any time disclose any such information until the information has become public
knowledge as a result of a deliberate disclosure by the other Party.
9.5 Each party undertakes forthwith to inform the other of them in writing should any demand or request
for information relating to or in connection with the subject matter of the Agreement be received,
irrespective of whether such request or demand is formulated in terms of the Promotion of Access
to Information Act No 2 of 2000, or on any other grounds.
10. BREACH
10.1 If either party (“the defaulting party”) commits a breach of any of the provisions of the Agreement
and such breach is a material breach, the other party (“the aggrieved party”) will be entitled, without
prejudice to such other rights as the aggrieved party may have at law, to cancel the Agreement
with immediate effect, claim specific performance and/or claim damages as the circumstances may
justify.
11. NOTICE AND DOMICILIUM
11.1 The parties hereto choose their respective domicilia citandi et executandi ("domicilium") for all
purposes of and in connection with the Agreement provided on the first page of the Agreement
11.2 Either party hereto will be entitled to change its domicilium from time to time, provided that any new
domicilium selected by it will be a physical address in the Republic of South Africa, and any such
change will only be effective upon receipt of notice in writing by the other parties of such change.
11.3 All notices, demands, communications or payments intended for either party will be made or given
at such party's domicilium for the time being.
11.4 A notice sent by one party to another party will be deemed to have been received:
11.4.1 On the same day, if delivered by hand;
11.4.2 On the same day, if sent by telefax or electronic mail;
11.4.3 On the fifth day after posting, if sent by prepaid registered mail.
11.5 Notwithstanding anything to the contrary herein contained, a written notice or communication
actually received by a party will be an adequate written notice or communication to it
notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
12 GENERAL
12.1 The Agreement constitutes the sole record of the subscription agreement between the parties in
regard to the subject matter hereof.
12.2 No party will be bound by any express or implied term, warranty, representation or promise not
recorded herein.
12.3 No addition to, variation or cancellation of the Agreement will be of any force or effect unless
reduced to writing and signed by or on behalf of all parties.
12.4 Any relaxation, leniency or indulgence which the Provider may extend or grant to the Subscriber
shall in no way constitute or be construed as a waiver of the Provider’s rights in terms hereof or
prevent or adversely affect the exercise by the Provider of any existing or future right of the
Provider.
12.5 The Parties undertake at all times to do all such things, to perform all such acts and to take all such
steps and to procure the doing of all such things, the performance of all such actions and the taking
of all such steps as may be open to them and necessary for or incidental to the putting into effect
or maintenance of the terms, conditions and import of the Agreement.
12.6 Save as is specifically provided in the Agreement, neither of the Parties will be entitled to cede or
assign any of their rights or obligations under this Agreement without the prior written consent of
the other party.
12.7 The Agreement will be governed and take effect in all respects and in accordance with the laws of
the Republic of South Africa.
12.8 In the event of any dispute, the Parties hereby consent to the jurisdiction of the North Gauteng High
Court.
12.9 If any provision of the Agreement is found by any court, tribunal or administrative body of competent
jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it
shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or
unreasonableness be deemed severable and the remaining provisions of the Agreement and the
remainder of such provision shall continue in full force and effect.
