THE PARTIES CONCLUDE THEIR AGREEMENT ON THE FOLLOWING TERMS AND CONDITIONS:
PRECEDENCE The terms and conditions of this agreement shall take precedence over any other terms and conditions that may have been discussed by the parties
DEFINITIONS
In this agreement, unless a different intention clearly appears from the context:
“Agreement” shall mean this document together with any additional annexures and schedules which may be signed;
“Client’s system” shall mean the system, facilities (including both hardware and software), applications and content developed and owned by the client;
“Client data” means data belonging to client that is loaded into Email and SMS lists. Leadify acts solely at an Operator, unless otherwise specifically stated.
“Confidential information” shall mean all oral and written information of any kind, whether in printed or electronic format, including but not limited to technical information, data, know-how and information relating to either party’s business, marketing strategies, financial condition and operations whether or not labelled as “Confidential” and submitted by one party to the other, whether before or after the date of this agreement, for the purposes relating to this agreement. The terms of this agreement shall also be “confidential information”;
“Effective date” shall mean the date of signature of this agreement by both parties;
“End-users” shall mean the consumers who access and use the services and applications provided by the client through the services provided by Leadify.
“Leadify’s system” shall mean the entire platform, system and facilities (including both hardware and software) which have been developed and owned by Leadify for the purposes of providing services to the client;
“Party” or “Parties” shall refer to the client and to Leadify, individually or collectively as the context requires;
“Services” shall mean the services set out in the Commercial Model;
“Normal Working Hours” shall mean 08h00 to 16h30 on Mondays to Fridays, excluding public holidays;
Any reference to a gender shall include the other genders.
Words importing natural persons shall include created entities (incorporated and unincorporated) and vice versa.
Words importing the singular shall include the plural and vice versa.
All schedules to this agreement are incorporated and form an integral part of this agreement.
In the event of any conflict between the provisions of this agreement and any schedule to it, the provisions of this agreement shall prevail.
DURATION
Notwithstanding the date of signature, this agreement shall commence upon system usage and shall continue while the system is used.
SERVICES
Leadify shall provide the services as defined on its website www.leadify.biz
The client may order additional services under this agreement, by signing additional schedule(s). All additional services shall be governed firstly by the terms and conditions of this agreement and then by the provisions of such additional schedule(s). The additional service(s) shall come into effect on the date agreed by the parties.
COSTS
The costs shall be levied in accordance with the agreed cost structure.
Leadify shall be entitled to charge additional charges for services not covered by this agreement, for any work carried out at the client’s written request, where the work is to be done outside of Leadify’s normal working hours, and for commercial travel and per diem expenses not included under this agreement. Such charges shall be agreed in writing by the parties prior to any work being done.
All charges in this agreement are exclusive of Value Added Tax.
PAYMENT TERMS
Payment is made by purchasing credits using the online system, alternatively contact support to set up a larger billing cycle and costing structure.
OBLIGATIONS OF LEADIFY Leadify shall:
Operate and maintain the Leadify services in a manner which ensures that the client enjoys the services without interruption in accordance with reasonable service levels;
Comply with all laws, regulations, directions and codes of practice promulgated by the competent government authorities in relation to the services;
Provide necessary technical support to the client to support the services in fulfilment of this Agreement.
OBLIGATIONS OF CLIENT The Client shall:
Not use Leadify’s services for the transmission of unsolicited commercial messages (spam);
Comply with all laws, regulations, directions and codes of practice promulgated by the competent government authorities in relation to the services;
Not use Leadify’s services or knowingly allow others to use the services for any illegal or unlawful purpose or activity. These include, but are not limited to, the transmission of content which:
Carries any defamatory, discriminatory or obscene material;
Carries child pornography;
Carries religious or racial slurs;
Is used in connection with any infringement of another person’s intellectual property rights (for example copyright or trademark);
Engages in the transmission of pirated material;
Threatens or encourages bodily harm;
Destroys tangible or intangible property;
Harasses other mobile or email users;
Collects or attempts to collect personal information about third parties without their knowledge or consent;
Is in breach of confidence;
Is illegal or immoral or unethical in any way.
WASPA
Leadify undertakes to adhere to any legislation, policies and/or codes of conduct of the Wireless Application Service Providers Association (WASPA) that may be applicable. Clients are strictly to adhere to the WASPA code of conduct. The WASPA code of conduct and advertising guidelines can be viewed at http://www.waspa.org.za.
Leadify shall not be held liable by the client if any of the client’s services are deemed to contravene WASPA’s code of conduct and the service is blocked. Leadify will stand by any judgment handed down by WASPA in terms of services owned by clients of Leadify and will discontinue such service provided to the client. This does not exempt the client from financial obligations in terms of this agreement and does not void or terminate this agreement or any clause in this agreement.
Any penalties or fines imposed by WASPA in terms of services owned, or run by, or on behalf of the client shall be the liability of the client and payable by the client.
CHANGE IN CIRCUMSTANCES
If the circumstances surrounding the fulfilment of this agreement should alter materially from those prevailing at the time of signature of this agreement, then the parties undertake to renegotiate such of the terms and provisions of this agreement as may be necessary to ensure that this agreement remains fair and equitable to each of the parties.
BREACH OF AGREEMENT
If a dispute arises between the parties concerning any matter relating to this agreement, then both parties shall enter into negotiations, in good faith, in order to resolve the matter.
If the parties are unable to resolve the matter between them, they may, but are not obligated to, refer the matter to arbitration. The arbitrator may in turn appoint an independent expert in the field in which the dispute has arisen, provided that both parties accept and agree on the arbitrator and his choice of independent expert and the terms and conditions of his appointment. The arbitrator shall decide the matter, and both parties shall agree to be bound by his decision.
In the event that the parties are unable to resolve the matter, or fail to agree on either an arbitrator or an expert, or the terms and conditions of his appointment, or if either party is in repeated breach of this agreement, then the party who has been aggrieved shall give written notice to the other party calling on it to remedy any breach of the agreement. If the other party fails to remedy the breach within 7 (seven) days of the receipt of the notice, then the aggrieved party may elect to cancel the agreement, or to demand specific performance, without prejudice to its rights to claim damages and without prejudice to any other rights it may have in law.
JURISDICTION
The laws of South Africa shall govern this contract, and the courts of South Africa shall have exclusive jurisdiction in the event of a dispute.
VARIATION
No variation, alteration or consensual cancellation of this agreement shall be of any force or effect, unless in writing and signed by all of the parties.
WAIVER
No indulgence which either party may grant to the other shall constitute a waiver of any of the rights of that party, who shall not thereby by precluded from exercising any of its rights against the other party which may have arisen in the past or which might arise in the future.
GENERAL
Unless the context indicates otherwise the rights and obligations of any party arising from this agreement shall devolve upon and bind its successors-in-title.
Prior drafts of this agreement shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the signature of this agreement.
Neither party may cede or assign any of their rights or obligations in terms of this agreement to any person, without the prior written consent of the other party, which consent shall not be unreasonably withheld.
The agreement may be executed by email or fax and in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
INTELLECTUAL PROPERTY
The parties shall procure, at their own cost, all necessary permissions, licenses, royalty-free licenses, consents or approvals prior to any use or reproduction (whether or not in whole or in part) of third party’s software, information, documents, data, statement, technology, literary work, musical work, artistic work, invention or design which are protected by copyrights, patent rights, design rights or trademarks belonging to the third party in regards to the services provided.
The intellectual property of and/or developed by either party shall remain the exclusive property of that party. Neither party shall use the other party’s intellectual property for whatever purpose unless with the prior written consent of the other party.
Leadify shall retain all right, title, and interest in and to Leadify’s system, including but not limited to, ownership of all hardware, software, support data, technology, applications, report formats and mechanisms and content and all intellectual property rights associated therewith.
Leadify, or any related company, will have no right to use or copy client data without previous written agreement from client.
The client shall retain all right, title, and interest in and to the client’s system and data, including but not limited to, ownership of all hardware, software, technology, applications, content and data, and all intellectual property rights associated therewith.
All rights not specifically granted herein to hardware, software, content, marks, technology, or other materials (and intellectual property rights of any of the foregoing) are reserved to the owner thereof.
CONFIDENTIALITY
Each party agrees and undertakes with each other to protect the confidential information of the other party using not less than the standard of care with which it treats its own confidential information but in no event less than reasonable care and shall ensure that the confidential information of the other party is stored and handled in such a way as to prevent unauthorised disclosure.
Each party shall use its best efforts to limit dissemination of the confidential information to its and its holding or related companies’ employees, consultants, officers, agents or sub-contractors (collectively called “Personnel”) to whom disclosure is necessary for each of them to perform his duties under this agreement. Each party shall impose the above obligation of confidentiality on their personnel.
The foregoing obligations shall not apply, however, to any part of the confidential information which:
Was already in the public domain or becomes so through no fault of the party receiving the confidential information (“receiving party”);
Is independently developed by the receiving party;
Is approved for release by prior written authorisation by the party disclosing the confidential information;
Is required by law to be disclosed.
These obligations of confidentiality shall survive the expiration or termination of this agreement without limitation of time.
Neither party shall disclose or make any announcement to the public or any third party in relation to the cooperation, relationship, arrangement contemplated herein, or content of this agreement without the prior written consent of the other party.
CONFLICTING SERVICES
Leadify offers services to many different parties and Leadify is not responsible and shall not be held accountable in any way for services or applications that, in the client’s opinion, form a conflict of interest with services or applications provided by the client. Leadify does however undertake to keep all information relevant to the client’s service confidential.
Leadify reserves the right to offer services to other parties who the client may deem or consider to be a direct or indirect competitor to the client. This agreement in no way implies any sort of exclusivity of service to the client.
WARRANTY OF AUTHORITY
Both parties, and the persons signing on behalf of the parties, warrant their authority to conclude this agreement.
Both parties further warrant that there is nothing contrary to the Memorandum of Association, or Articles, or Founding Statement or Member’s Agreement of their respective entities, which may influence, or prevent any of the provisions of this agreement from being enforced.
SEVERABILITY
If any provision of this agreement is invalid or unenforceable for any reason, it will not thereby invalidate the whole agreement, unless the provision in question goes to the heart of the agreement. In such event, the party who is adversely affected by the invalid provision may elect to cancel the agreement; or to continue with it, or continue with it subject to agreement on any appropriate provision to replace the invalid or unenforceable one.
FORMALITIES
The parties agree that will do all the things and sign all documents necessary to give effect to the terms of the agreement.
WHOLE AGREEMENT
This written agreement constitutes the entire agreement between the parties, and no representation by any of the parties or their agents, whether made prior or subsequent to the signing of this agreement shall be binding on any of the parties unless in writing and signed by the parties.
INDEMNIFICATION
Under no circumstances shall Leadify, its officers, directors, affiliates, shareholders, agents, licensors and employees be liable for any losses, damages, liabilities, penalties, claims, demands, suits or actions, or any related costs and expenses of any kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, which are claimed to arise from use of Leadify’s services or software including without limitation, any fault, error, omission, interruption or delay with respect thereto.
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