TotalSend – Terms of Service

General terms for the provision of services

(Version: 1.5)

Updated 17 September 2018

1. Introduction

These terms set out the general terms of the relationship between us and you. The terms apply to any transactions where we provide services to you. The commercial terms specific to any transaction will be contained in an order that will incorporate these terms. The order will prevail if there is a conflict of meaning between these terms and an order. Nothing in the terms obligates any party to enter into any orders.

2. Definitions and interpretation

2.1. Definitions. In these terms and any other agreement, unless the context indicates otherwise, the following terms mean:

2.1.1. "additional fee" means a charge you must pay us for the supply of any services outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between the parties;

2.1.2. "administrator" means an authorised user that you employ who is authorised to provide, manage and administer certain services;

2.1.3. "agreement" means the agreement between us and you, consisting of these terms and any orders the parties enter into;

2.1.4. "applicable law" means any law, by-law, ordinance, proclamation and/or statutory regulation which the parties are required to observe by reason of these terms and matters incidental thereto;

2.1.5. "authorised user" means you or a user in your employ where you are a juristic person or otherwise, who has been assigned credentials by you to use the website;

2.1.6. "business day" means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;

2.1.7. "business hours" means our normal business hours on business days, being 8am to 5pm SAST, Monday to Friday

2.1.8. "contract year" means, in respect of an order, each successive 12 (twelve) calendar month period during the term of the order, calculated from the effective date;

2.1.9. "credentials" means a unique username and password that has been assigned to an authorised user;

2.1.10. "dashboard" means the section on the website accessible by you through a web browser that allows you to control certain aspects of the services;

2.1.11. "effective date" means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by us in writing or by placing our signature on the order;

2.1.12. "existing material" means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;

2.1.13. "fees" mean the fees, charges, or purchase consideration that you will pay to us in respect of services we provide in terms of orders agreed to;

2.1.14. "offer" means any request by you for us to provide you with services which, upon acceptance by us, becomes an order for services;

2.1.15. "order" means a services order agreed to and signed by both parties, describing the specific services that we will provide to you and other necessary details, including the fees and effective date, amongst others;

2.1.16. "our technology" means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;

2.1.17. "parties" means the parties to these terms, an agreement or an order, and "party" means either one of them as the context may indicate;

2.1.18. "personnel" means any representative, including any director, employee, agent, affiliate, consultant, or contractor of the parties;

2.1.19. "related" and "related persons" mean natural and juristic persons who are legally connected to one another;

2.1.20. "services" mean any services we or our related persons provide to you in terms of any order or this agreement;

2.1.21. "sign" means the handwritten signature, an advanced electronic signature, or any other electronic signature that the parties agree to use, of each duly authorised representatives, but expressly excludes the name or email signature of a party in an email, unless the context of the email clearly indicates that the party intended for their name or email signature to amount to a "signature" for purposes of this clause 2.1.21;

2.1.22. "signature date" means the date of signature by the party signing any document last;

2.1.23. "tax" means any:

2.1.23.1. tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction);

2.1.23.2. duty (including stamp duty);

2.1.23.3. tariff, rate, levy; or

2.1.23.4. any other governmental charge or expense payable,

by each party in their jurisdiction;

2.1.24. "terms" means the terms applicable to the relationship between the parties, consisting of:

2.1.24.1. these terms of service;

2.1.24.2. the privacy policy, website terms of use, anti-spam policy, complaints policy, services refund policy and security policy as amended from time to time and available on our website; and

2.1.24.3. any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may be applicable to any specific services);

2.1.25. "third party contractor" means any contractor, supplier, service provider or licensor of a part of the services, which is not a party to the agreement between the parties;

2.1.26. "third party software" means all third party software owned by a third party but legally licensed to us for use in providing the services;

2.1.27. "website" means our website, found at https://www.totalsend.com/;

2.1.28. "we", "us", or " our" means TotalSend Limited (a Mauritian company), the service provider that enters into an order and, if specified in the order, those related to it;

2.1.29. "writing" means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but for purposes of our relationship, expressly excludes information or data in the form of email;

2.1.30. "you" or "your" means the customer that enters into an order with us and, if specified in the order, those related to it; and

2.1.31. "your data" means your data (including information about an identifiable person ("personal information")) that:

2.1.31.1. you provide (or any third party on your behalf provides) to us; or

2.1.31.2. we generate, process, or supply to you in providing the services;

but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors, or which belongs to third parties.

2.2. Definitions in the order. Words defined (or assigned a meaning) in an order will have the same meaning as the meaning in these terms, unless the context clearly indicates otherwise.

2.3. Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever "including" or "include", or "excluding" or "exclude", together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time, including any regulations, notices or other guidance officially published by government or official bodies in terms of such law. Any reference to a person includes a natural and juristic person and any reference to a party includes the party's successors in title or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement, the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

3. Duration

The terms commence on the effective date and continue until terminated. Where the duration of this agreement is specified in an order, if you are a "consumer" for purposes of relevant consumer legislation, you may terminate the relevant service prior to the expiry of the term on 20 (twenty) business day's written notice to us. However, we may charge you a reasonable early termination fee.

4. Orders

4.1. Capacity.

4.1.1. You represent and warrant that you (and any person who places an order):

4.1.1.1. are old enough under applicable law to enter into the agreement;

4.1.1.2. are legally capable of concluding any transaction;

4.1.1.3. possess the legal right, full power, and authority to enter into the agreement;

4.1.1.4. are authorised to use the credentials required for any account; and

4.1.1.5. will submit true, accurate and correct information to us.

4.1.2. If you are younger than 18 years of age, you warrant that you have the consent of your legal guardian to enter into the agreement or that you have obtained legal status in another manner.

4.2. Invitation to do business. The marketing of the services by us is merely an invitation to do business or for you to make an offer to procure services from us. The parties only conclude a valid and binding order when we accept the offer made by you. Unless proven to the contrary, we only accept an offer relating to services, when we begin providing the services. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.

4.3. Deemed order. You will be deemed to have placed an order in regard to services when you start consuming any services you have requisitioned automatically from the dashboard, it being agreed that each click of a button to requisition a service constitutes a billable event.

4.4. Cancel. Unless otherwise agreed, we may cancel any order at any time in our absolute discretion. We will refund any monies already paid by you if we cancel the order without cause.

4.5. Fees. Despite our best efforts, the fees indicated on the website or elsewhere may be incorrect. We will confirm the fees payable by you for any services when we accept your offer and further in a tax invoice.

4.6. Time and place. The parties conclude any agreement with each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office. We do not need to communicate the acceptance of the offer to you.

4.7. Orders. The terms in effect at the time we accept an offer will govern the order. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders and/or agreements.

5. Services

5.1. Grant of right. We grant you a limited, non-exclusive, non-transferrable, revocable right to use our services in accordance with the terms and the terms of any third party agreement. Any person wishing to use the services contrary to the terms or third party agreement must obtain our prior written consent.

5.2. Consent to monitoring. You consent to us monitoring your use of the service for security purposes, in order to ensure that the service is always running and functioning as it should and to monitor your compliance with these terms.

5.3. Third party software. We use third party software and services in order to provide you with our services. We will provide you with a copy of the relevant licenses that may be applicable to you upon your request.

6. Unmanaged services

6.1. Introduction. We provide various unmanaged services to you, including the ability to create electronic messages in the form of emails, send electronic message campaigns, and monitor the effectiveness of those campaigns.

6.2. Registration. Each authorised user must provide their full legal name, a valid email address, and any other information requested by us to complete the registration process.

6.3. Access. Only authorised users may access the services by using the credentials issued to them upon registration or as otherwise updated by the user from time to time.

6.4. Security. Each authorised user is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has accessed your account without your permission with your access credentials unless you have notified us in writing prior to us acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to an authorised user's failure to maintain the confidentiality of their credentials.

6.5. Security breach. It is your responsibility to keep your account access credentials safe and only share them with authorised users. Should you suspect that your account or access credentials have been accessed unlawfully or stolen, you must notify us in writing and change your access credentials immediately.

7. Acceptable use

7.1. The following actions are not acceptable:

7.1.1. No illegal activities. You may not use the services for any activities that the law prohibits, like illegal gambling, illegal competitions, child pornography, or pyramid schemes.

7.1.2. No harmful activities. You may not use the services for any activities that could harm someone, like offering fraudulent goods or services.

7.1.3. No offensive activities. You may not use the services for any activities that could offend someone, like chain letters or multi-level marketing campaigns.

7.1.4. No illegal content. You may not use the services to distribute any content that the law prohibits the distribution of, like pirated software, unlicensed copyrighted content, or other content that infringes other people's intellectual property rights.

7.1.5. No harmful content. You may not use the services to distribute any content that could harm someone, like viruses, malware, or other malicious software.

7.1.6. No offensive content. You may not use the services to distribute any content that could offend someone, like defamation, pornography, or other obscene content.

7.1.7. No security breaches. You may not use the services to breach any system security, including:

7.1.8. No network abuse. You may not abuse any network connections available to you through the service without permission from the recipient, including by:

7.2. Enforcement. We may immediately, in our sole discretion, cancel your account without prior notice if you use the services contrary to this acceptable use clause.

7.3. Remedy. We may remove or change any content that you have uploaded or created on the website that violates this acceptable use clause.

8. Acceptable sending

8.1. Electronic messages. The services allow you send electronic messages in the form of emails or SMSs.

8.2. No spam. You may not use the services to send spam (unsolicited messages) to any person. In this regard, you are required to comply with our anti-spam policy available on our website ( https://www.totalsend.com/anti-spam-policy/ ).

8.3. Anti-spam legislation. Any electronic messages that you send through the services must comply with all applicable laws.

8.4. Opt-out. Any electronic messages that you send through the services must contain an unsubscribe link that is valid for at least 30 (thirty) calendar days from the date of the electronic message.

8.5. Disclosure. Any electronic messages that you send through the services must contain any information that you are required to disclose by applicable law, including your identity, physical address, phone number, or other non-Internet contact information.

8.6. Reason. You must inform the recipient of any electronic message that you send through the services the reason why the recipient is receiving the message, in at least the first communication with such recipient, and further meet any requirements that may be prescribed by our privacy policy and applicable law.

8.7. No third party lists. You may not use the services to send messages to lists of contact details that you have bought, scraped from the Internet, or otherwise not built yourself. Any contact details that you send electronic messages to through the services must comply with the requirements of our privacy policy.

8.8. Enforcement. We may immediately cancel your account without prior notice if you send any electronic messages contrary to this clause 8.

9. Message monitoring

This clause 9 applies in addition to clause 5.2.

9.1. Right to monitor. Although under no obligation to monitor, we may monitor your electronic messages and activity on your account and distribute such content within our organisation for the purposes of investigating any violation of these terms or misuse of our services.

9.2. Right to use content. We may use the content of your electronic messages to develop tools to help us manage accounts that do not conform to our acceptable use clause.

9.3. Not private. Electronic messages are not always a private method of communication and you should not use the services to send any confidential information. Server administrators may be able to read your emails as they move from server to server across the Internet, however, the content of your emails will not be disclosed contrary to these terms.

10. Managed services

10.1. Introduction. We provide various managed services, including helping you create electronic messages in the form of emails, send electronic message campaigns, and monitor the effectiveness of those campaigns, or doing any of those things on your behalf.

10.2. Agreement. The managed services agreement between us and you is made up of:

10.2.1. these terms of service, including this managed services clause; and

10.2.2. all applicable orders entered into between the parties.

10.3. Definitions. For the purposes of this clause 10:

10.3.1. "deliverable" means any bespoke task we undertake for you, including an electronic message or electronic message campaign;

10.3.2. "development timetable" means the timetable upon which the development of a deliverable will proceed and as amended by the parties in writing;

10.3.3. "documentation" means any available installation and operating instructions, user and support manuals and technical literature pertaining to the deliverables as supplied by us with the deliverables;

10.3.4. "due date" means a deliverable related timeframe goal agreed between the parties in writing;

10.3.5. "milestone" means a deliverable related progress goal agreed between the parties in writing;

10.3.6. "project" means any scoped project to make changes to a deliverable (i) that results in a feature not present in a deliverable prior to the introduction of the changes, (ii) designed to permit the use of a deliverable in an environment other than that for which the deliverable was initially designed, (iii) that requires business requirements analysis, functional specification, or wire framing; or (iv) has a development time of more than two business days.

10.3.7. "managed services" means any managed services we, or related persons, provide to you under orders, including development, deployment, and reporting;

10.3.8. "specification" means the specification of the deliverables, which may be (i) in or attached to an order, or (ii) in writing, dated and signed by the parties; and

10.3.9. "support" means ad hoc support which could result in a configuration change, managed service restart, or performing end-user actions on your behalf.

10.4. Transfer of managed services. If anyone other than us has been providing managed services to you prior to the effective date, then such person will, as soon as possible after the effective date, do all things as may be necessary to transfer the relevant managed services to us to enable us to provide the managed services and will endeavour to complete the transfer of the managed services to us prior to the effective date or as soon as possible thereafter. The transition of the managed services will be co-ordinated by a designated representative or personnel of each party, and during the transfer period the parties will co-operate with each other (and will ensure that their respective third party suppliers cooperate with each other), to effect a smooth transfer of all managed services to us.

10.5. Basis. We agree to provide the managed services to you in respect of:

10.5.1. the deliverables; and

10.5.2. any related tasks we agree to undertake for you in writing.

10.6. Our obligations. We will be responsible for the management and supervision of the performance of the managed services by our personnel.

10.7. Your responsibilities. You will provide the assistance and input as we may reasonably require to enable us to provide the managed services.

10.8. Exclusivity. During the term of this agreement, you will only use us for the provision of the managed services in relation to the deliverables.

10.9. Suitably qualified personnel. We will, during the currency of this agreement, ensure that sufficient suitably qualified personnel devote of their time, attention, and abilities to the managed services as may be necessary for the satisfactory completion of the managed services .

10.10. Advice. We agree to advise and assist you with respect to all aspects of the managed services. In the performance of the managed services, we will comply with all your reasonable requests and directions, including ensuring that our personnel attend meetings as you may require from time to time.

10.11. Reporting. We will provide you with progress reports outlining any changes in direction, priorities, or progress with the managed services in the manner and at intervals agreed between the parties in writing.

10.12. Personnel performance and data. You will be responsible for the performance of your personnel and for the accuracy of all data and information you provide to us for purposes of our performance of the managed services.

10.13. Specification change procedure. If a party, at any stage, requires any amendment to the specifications, it will submit a written change request to the other party, setting out:

10.13.1. the nature of the desired changes;

10.13.2. the reason for the changes; and

10.13.3. the effect of the changes on the deliverables

10.14. Specification change format. If the proposal is made by:

10.14.1. you, we will investigate the likely impact of any proposed changes upon the development timetable and fees payable and will provide you with a written response;

10.14.2. us, we will detail the likely impact of any proposed changes upon the development timetable and fees payable in the change note.

10.15. No changes until sign-off. Until any specification changes have been mutually agreed to in writing, the parties will continue to perform their respective obligations as agreed to prior to the proposed specification changes. Only once specification changes have been signed-off by the parties shall the managed services be rendered in terms of the new specifications.

10.16. Intellectual property rights vest in us. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the deliverables will vest in us.

10.17. Licence. Upon acceptance of the deliverables by you, we will grant you a licence to use the deliverables in accordance with a separate agreement to be entered into between the parties in writing.

10.18. Existing material. During an order, each party grants to the other party (and their contractors as necessary) a temporary, non-exclusive license to use, reproduce and modify any of its existing material provided to the other party solely for the performance of the managed services. Your license to our existing material is conditional upon your compliance with the agreement.

10.19. Licence to use. Upon payment in full, we grant you a non-exclusive, perpetual, license to use, reproduce and modify (if applicable):

10.19.1. our existing material in the form delivered to you as part of the deliverables; and

10.19.2. the perpetual license applies solely to that which we leave with you at the conclusion of the order and is only for your internal business operations.

10.20. Deliverables not error-free. We do not warrant that any deliverables will be error free after acceptance by you.

10.21. Relationship. The parties will be deemed to be independent contractors, and the personnel of one party will not be deemed to be personnel of the other party.

11. Your data

11.1. Your data. We store your information on our system in accordance with the terms of our privacy policy. We implement reasonable security safeguards and measures to protect your data that is on our system. Our privacy policy details how we process your personal information and applies to any personal information that we may process as a result of the services.

11.2. Definition of "data" for this clause 11. For purposes of this clause 11, "data" will include any of your information that is used and/or stored on our system other than personal information (as defined in the privacy policy).

11.3. Location of your data. We are able to provide the website in multiple locations located in various countries. Your data may be transferred cross border to enable us to comply with our obligations under the agreement between us. Reasonable security measures are taken for any transfers of data cross border.

11.4. Preservation of integrity of your data. Both parties will take reasonable precautions (having regard to the nature of each of their obligations under the agreement), to preserve the integrity of the data and prevent any unauthorised access, corruption or loss of the data.

11.5. Return of data. On termination of any order, each party will return to the other party all of the other party's data or information provided for the purpose of the performance of the relevant order, or otherwise delete such data.

12. Intellectual property

12.1. Your data. You retain all the rights in the data. We do not own your data or other third party content used by you as part of the website or services. All title, ownership rights and intellectual property rights in and to the data or third party content accessed through the website belong to you or the applicable third party content owner and may be protected by applicable copyright or other law.

12.2. Your data license. When you upload your data to the website, you give us a worldwide license to use, host and store your data, solely for purposes of providing the services in terms of the agreement.

12.3. Retention of rights. We have created, acquired or otherwise obtained rights in our technology and other related data and despite anything contained in the agreement, we will own all right, title, and interest in our technology and other related data.

12.4. Use of our technology. If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right to or interest in it. You may only use our technology for the purposes agreed to between ourselves.

12.5. Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and intellectual property and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.

12.6. Restrictions. Except as expressly permitted under the agreement, the services or website may not be:

12.6.1. modified or used to make derivative works;

12.6.2. rented, leased, loaned, sold or assigned;

12.6.3. reverse engineered or copied; or

12.6.4. reproduced or distributed.

12.7. Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.

13. Confidential information

13.1. Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party, whether under this agreement or otherwise.

13.2. The receiving party's responsibilities. The party that receives confidential information agrees to protect the interests of the disclosing party, and will use the confidential information exclusively for the purposes of carrying out its obligations in terms of this agreement, strictly interpreted.

13.3. End of this agreement. At the end of this agreement, the parties will return all originals and copies of confidential information belonging the other party that they have received during the course of this agreement. The parties may agree to alternatively destroy the confidential information belonging to the other party that they have.

13.4. Exceptions. The obligations in this clause 13 will not apply to any information that:

13.4.1. was lawfully in the public domain (available to the general public) when a party received it;

13.4.2. lawfully becomes part of the public domain after the receiving party has received it through a legal disclosure thereof;

13.4.3. is given to the receiving party after the initial receipt thereof from the disclosing party by a different person who is allowed to reveal the confidential information; or

13.4.4. is given to comply with a court order or other legal duty.

13.5. Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you, your personnel, and/or related persons.

13.6. Survival. This clause 13 shall remain valid for five years after the end of the agreement.

13.7. Disclosure in breach of this clause 13. Any party that discloses confidential information in breach of this clause 13 shall immediately inform the other party of such disclosure and shall take all steps for the third party to destroy such confidential information.

13.8. Applicability. The obligations of confidentiality under this agreement will apply to all disclosures of confidential information, whether in discussion or contemplated as of the effective date, occurring or arising after or disclosed prior to the effective date.

14. Non-solicitation

No party will, during the currency of any order or for a period of 12 (twelve) calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order without the written consent of that party to do so.

15. Our warranties

15.1. Service warranties. We warrant that in relation to the services:

15.1.1. We, and our personnel, possess the knowledge and expertise necessary to enable us to provide the services;

15.1.2. we will employ a sufficient number of suitably trained personnel to suitably provide the services as agreed; and

15.1.3. we will provide the services in accordance with applicable laws.

15.2. General warranties. We warrant that:

15.2.1. we have the legal right and authority to execute and deliver the agreement and resulting services, and to exercise our rights and perform our obligations under the agreement; and

15.2.2. we and our personnel will not knowingly introduce any malicious software into your material or your system through the provision of the services.

16. Disclaimer of warranties

16.1. Disclaimer . You use our services at your sole discretion and risk. We provide the services on an "as is" and "as available" basis. Except for the warranties expressly given by us in the agreement and to the extent allowed in law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:

16.1.1. any implied warranties or conditions of satisfactory quality, warranties in respect of latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement of any rights;

16.1.2. any warranties regarding or given by third party software;

16.1.3. that the services will meet your requirements or be uninterrupted, effective or complete, timely, secure, error-free or free from infection by malicious software.

16.2. Exclusion of liability . Despite any warranty we may give, we will not be liable for any loss suffered from your negligence, failure to follow our instructions (whether oral or in writing), or misuse of the services, website or otherwise related services or websites.

17. Your warranties

17.1. You warrant that:

17.1.1. you have not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;

17.1.2. you have the legal authority, capacity and power to enter into and perform in terms of this agreement and in terms of applicable law; and

17.1.3. by entering into the agreement or placing an order, you are not acting in breach of any agreement to which you are a party.

17.2. You agree to indemnify, defend, and hold us, our personnel and/or related persons harmless from and against any claim for damages by any third party as a result of a breach of the warranties as set out in this clause 17 , including indemnification against all legal costs on an attorney-and-own-client basis or as otherwise determined by a competent court.

18. Fees and payment

18.1. Payment dates. You will be liable for and pay the fees specified in the order, and any additional fees agreed to, promptly on a monthly basis on the due date indicated in the order and/or tax invoice, without any deduction, set off, or demand and free of exchange in the currency specified in the order.

18.2. Manner of payment. You must make payment in the manner specified in the order and/or tax invoice.

18.3. Late payment. In the event that any amount payable by in terms of this agreement is not paid when due, then the we will be entitled to levy interest on such outstanding amounts at a rate of 2% (two percent) per month from the date of default and which interest shall be calculated and capitalised on the same day of each month, in arrears, on the amounts due until you have remedied the default in full. We reserve the right to cancel or suspend the services and your access to the website in instances of extended late payments.

18.4. Interest on overdue damages. Where there is a valid and recognised claim for damages, interest on any overdue amounts will accrue from the date on which the claim for damages was awarded/agreed to at the prime lending rate (as determined by the South African Reserve Bank from time to time).

18.5. Appropriation. We may appropriate any payment received from you towards the satisfaction of any outstanding fees owed to us under the agreement.

18.6. Withhold payment. You may not withhold payment of any amount due to us for any reason. Any payments that are withheld by you for any reason may result in us suspending the services and/or your access to the website.

18.7. Tax invoice. We will issue a valid tax invoice to you on a monthly basis indicating the amount due by you and the date on which it is payable.

18.8. Statement of account. In the event of late payment, we will continue to issue you tax invoices monthly, and provide you with a statement of account, indicating all outstanding amounts, interest and any payments made. The statement of account will be updated on a monthly basis and upon the receipt of any payments.

18.9. Tax. All displayed fees exclude any tax except where otherwise indicated. All taxes are payable by you in addition to the fees unless included in the fees, as stated on the order and/or tax invoice.

18.10. Payment profile. You consent and agree that we may provide any registered credit bureau with information about your payment practices at our discretion and/or when required to do so by law.

19. Intellectual property infringement

19.1. Defence by us. Unless you are in breach of the agreement or applicable laws, we will defend you against any claims made by a third party where as a direct result of your use of our services, its intellectual property rights have been infringed. In such cases, we will pay the amount of any resulting adverse final judgement or settlement agreement that we have agreed to with the third party. We will reimburse you for all costs which you reasonably incurred in assisting us with the defence of the claim. You will promptly notify us of the claim in writing and we will have sole control over its defence or settlement.

19.2. Consequences of successful claim by third parties . If any third party succeeds in its claim for the infringement of its intellectual property rights, we may, within 30 (thirty) calendar days of the successful claim, and at our sole discretion:

19.2.1. procure on your behalf the right to your continued use of the intellectual property that was the subject of the claim;

19.2.2. replace the infringing intellectual property with another product that in all respects operates in substantially the same manner as the intellectual property that was the subject of the claim;

19.2.3. alter the intellectual property that was the subject of the claim to render it non-infringing and ensure that it operates in substantially the same manner as the intellectual property that was the subject of the claim did; or

19.2.4. withdraw the infringing intellectual property and refund to you all fees paid to us in the preceding 6 (six) calendar month period in respect of any services that were materially impacted by the infringing intellectual property.

19.3. Exclusion. We will not be liable for or party to any intellectual property infringement claim that arises out of goods or services that you select and acquire from third parties.

19.4. Survival. This clause 19 will survive termination of the agreement.

20. Project managers

20.1. Appointment. On the effective date, each party will appoint a suitably qualified and responsible person to act as their project manager. If you do not appoint a project manager and you are a natural person, then you will be your own project manager. Otherwise, the natural person that is ordinarily responsible for the day-to-day administration of that party will be its project manager.

20.2. Function. The project manager's responsibilities include to manage and coordinate the services and to discuss and manage any changes. The project manager is deemed authorised to perform such functions and bind the party on whose behalf it is acting.

20.3. Replacement. A party may, on 7 (seven) calendar days' written notice to the other, appoint an alternative project manager who is suitably qualified and responsible.

21. Limitation of liability

21.1. Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you in the last 3 (three) months to us for the services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

21.2. Indirect damages excluded. To the extent permitted by applicable law and the agreement, in no event will we (or our personnel or related persons) be liable for any indirect, incidental, special or consequential damages or losses of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.

21.3. Exclusions. The limitation contained in this clause 21 will not apply to any breach by a party of the other party's proprietary or confidential information, intellectual property or damages arising from a party's gross negligence.

21.4. We are not liable for your default . We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you, your personnel or related persons.

21.5. Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.

21.6. Liability. Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by that party, its personnel or related persons.

22. Breach

If a party:

22.1. does not remedy any breach of this agreement within 7 (seven) days of receiving written notice from the other party to do so;

22.2. breaches this agreement materially more than once in any 6 (six) month period;

22.3. is insolvent (bankrupt), or has a legal disability, such as being placed under administration;

22.4. takes steps to deregister itself (close down) or is deregistered;

22.5. makes any settlement or arrangement with its creditors; or

22.6. fails to pay a court order against it for more than R1 000 000 (one million South African Rand), within 21 (twenty one) calendar days;

then the other party may, without prejudice to any of its rights:

22.7. claim specific performance of this agreement where possible; or

22.8. immediately cancel this agreement in writing; and

22.9. claim damages from the other party, including any claim for any outstanding fees.

23. Suspension of services

23.1. Immediate suspension. We may immediately suspend your right to use any of the services or website if we suspect that any of the following circumstances exist:

23.1.1. you attempt a denial of service attack on any of the services;

23.1.2. you seek to hack or break any security mechanism on any of the services;

23.1.3. we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;

23.1.4. you otherwise use the services in a way that disrupts or threatens the services;

23.1.5. we determine, in our sole discretion, that there is evidence of fraud with respect to your account or use of the services;

23.1.6. we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party;

23.1.7. you have not made payment of any validly issued tax invoices; or

23.1.8. we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.

23.2. Preservation of data (suspension). In the event that we suspend your access to any services or the website, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

23.3. Duration of suspension. Your suspension of access to the services or the website will continue until we have determined whether you are in breach of this clause 23, which shall be determined within 31 (thirty one) days. We agree to use commercially reasonable efforts to investigate and consider reasonable evidence to come to a determination. We will notify you of the outcome of our determination and either restore your access to the services or website if you are not in breach of this clause 23 or enforce our rights in terms of clause 22 and/or 24.

24. Termination

24.1. Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:

24.1.1. we discontinue the website or services;

24.1.2. you are found to be in breach of clause 23 and have failed to remedy your breach in terms of clause 22 (where such remedy is possible);

24.1.3. we believe that providing the website or services could create an economic or technical burden or material security risk for us;

24.1.4. termination is necessitated by us having to comply with any applicable law or requests of governmental entities; or

24.1.5. we determine that your use of the website or service or the provision of the website or services to you has become impractical or unfeasible for any legal or regulatory reason.

24.2. Duties on termination. On termination, cancellation, or expiry of this agreement:

24.2.1. we will stop providing the website and/or services;

24.2.2. your access rights in respect of this agreement, the website and/or services will cease to exist, except as otherwise provided for in this agreement; and

24.2.3. we will erase your data, unless we have agreed to provide you with post termination assistance in writing or otherwise have any legal reason or justification to retain your data.

24.3. Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of any terms of this agreement that are intended to operate after expiry or termination.

25. Effect of termination

25.1. Amounts due become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to us for services rendered before termination will become immediately due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason whatsoever, unless an arbitrator directs otherwise.

25.2. Post-termination assistance. Following termination, you may take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may, at our discretion, provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post-termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.

25.3. No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect the renewal or extension of the term of any agreement unless such intention has been expressed by either party.

25.4. Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after its expiry or termination.

26. dispute resolution

26.1. Notification. Any dispute in respect of this agreement shall be notified to the other party in writing with a request for such dispute to be resolved in terms of this clause 26.

26.2. Resolution of disputes. The parties shall reasonably attempt to resolve any notified dispute through the following mechanisms:

26.2.1. negotiation (direct talks to agree to a resolution of the dispute); failing which

26.2.2. mediation (talks in which a neutral third party assists the parties in agreeing on a resolution to the dispute); failing which

26.2.3. arbitration (a hearing after which a neutral third party makes a binding decision about resolving the dispute).

26.3. Negotiation. Each party must make sure that their chosen representatives meet within 10 (ten) business days of notification of the dispute to negotiate a resolution of the dispute and agree to such negotiated resolution by written agreement within 15 (fifteen) business days of first meeting.

26.4. Mediation. If negotiation fails, the parties must refer the dispute to mediation under rules that the parties agree to in writing within 15 (fifteen) business days of negotiation failing.

26.5. Arbitration. If mediation fails, the parties must refer the dispute within 15 (fifteen) business days of mediation failing to arbitration under the arbitration rules and legislation for the time being in force in Mauritius. The arbitration will be held with only the parties and their representatives present in English at a place so agreed to in writing by the parties. The parties will agree to and appoint one arbitrator. The parties shall use their best endeavours to procure the expeditious completion of the arbitration.

26.6. Agree otherwise in an order. The parties may agree to alternative or additional provisions in respect of dispute resolution in an order for services.

26.7. Urgent interim relief. This clause will not prevent a party from applying to a competent court for urgent interim relief (temporary help) while the dispute resolution process is being finalised.

26.8. Severability. The provisions of this clause 26 are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.

27. Notices and domicile

27.1. Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number provided in the relevant order.

27.2. Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for purposes of this agreement.

27.3. Change of service addresses. Each party may change their service address by notifying the other party in writing. Any changes to service addresses shall be notified 14 (fourteen) days before the change is to be effective, unless otherwise agreed and acknowledged by the parties in writing.

27.4. Deemed delivery. Notice sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to the chosen service address to which post is delivered shall be deemed to have been received on the 7th (seventh) business day after posting (unless the contrary is proved); delivered by hand to a responsible person during ordinary business hours at the service address chosen shall be deemed to have been received on the day of delivery; or sent by email to its chosen email address shall be deemed to have been received on the date of sending (unless the contrary is proved).

27.5. Notice actually received. Notwithstanding anything to the contrary set out in this clause, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address.

28. Force majeure

28.1. Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.

28.2. Party affected to notify other party. If there is an event of force majeure, the party affected will immediately inform the other party, and they will meet within 7 (seven) calendar days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the force majeure circumstances.

28.3. Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 (sixty) calendar days as a result of a force majeure event, the other party may cancel this agreement by written notice.

29. Assignment and subcontracting

29.1. No assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. We may assign this agreement to any successor or purchaser of our business or some of our assets.

29.2. Exception. Despite this clause 29, we may cede and assign all rights and obligations under this agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.

29.3. Our third party contractors. We may sub-contract or delegate our obligations under this agreement to third party contractors. We will remain liable for performance in terms of this agreement by the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.

30. Relationship

30.1. No temporary employment service or partnership. Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.

31. General

31.1. Entire agreement. The agreement is the entire agreement between the parties on the subject and supersedes any other discussion, agreements and/or understandings regarding the subject matter of this agreement.

31.2. Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.

31.3. Changes to any third party software license agreement . We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon your further use of the website and/or services.

31.4. Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

31.5. Waiver (giving up of rights). Any favour we may allow you in respect of this agreement will not affect or substitute any of our rights against you.

31.6. Severability. Any provision in this agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this agreement, without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

31.7. Governing law. The law of the Mauritius governs this agreement.

31.8. Jurisdiction. You consent to the jurisdiction of the lowest possible court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.

31.9. Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.

31.10. Costs. Each party is responsible for its own costs in drafting and negotiating this agreement.

31.11. Publicity. A party will not make any announcement or statement to the press about this agreement, without first obtaining the written permission from the other party.