Payment Terms and Conditions

 

1INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Authorised Users: those individuals authorised to use the Services that Evolve financial advisory is providing.

Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

Documentation: the documentation made available to the Customer on the Website which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of this agreement.

Initial Subscription Term: 12 months rolling over.

Renewal Period: the period described after the initial period.

Services: the subscription services, including to the Software, provided by the Supplier to the Customer under this agreement via the Website as more particularly described in the Documentation.

Software: the online software application provided by the Evolve financial advisory as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in our pricing and subscription information pages.

Subscription Term: the 12 months Initial Subscription Term together with any subsequent Renewal Periods.

User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorized Users to access and use the Services and the Documentation in accordance with this agreement.

Cancellation cost: the fee payable if the initial term was not conducted or the cost with must be paid to end the service or advice that was given. This cost will be on last debit for the service.

 

1.2 – Clause and paragraph headings shall not affect the interpretation of this agreement.

1.3 – A person includes an individual, 1 person (whether or not having separate legal personality).

1.4 –  A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 –  Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 – A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

USER SUBSCRIPTIONS

 

Subject to the Customer purchasing the User Subscriptions and complying with the terms of this agreement the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.

 

2.2) In relation to the Authorised Users, the Customer undertakes that:

1. a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2. b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; and
3. c) each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep their password confidential.

2.3The Customer shall not:

 

 

1. a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

i)and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

ii)attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

1. b) access all or any part of the Services and advice in order to build a product or service which competes with the Services and/or the Documentation and/or advice and
2. c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

d)attempt to obtain, or assist third parties in obtaining, access to the Services and advice other than as provided under this clause of this section.

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2.4 The Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

 

3USER SUBSCRIPTIONS

The Customer may, during any Subscription Term, upgrade to the next level of User Subscriptions or add further services by notifying the Supplier and paying the additional Subscription Fees.

4SERVICES

 

 

4.1The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.

 

 

4.2The Supplier shall use commercially reasonable endeavours to make the Services available for the customer that paid for this subscription. As the supplier finds reasonable hours.

 

5CUSTOMER DATA

5.1The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2 The Supplier is not under any obligation to store any Customer Data. The Supplier of this service can delete any Customer Data immediately. The Supplier shall not be responsible for any loss, destruction or alteration of Customer Data. The supplier always sees the customer data as confidential and will treat it as such.

5.3) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. The supplier of this service will not be held responsible for any loss, dectruction or damages that may occur.

 

6SUPPLIER’S OBLIGATIONS

 

 

6.1The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

6.2The Supplier:

 

a)does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

 

7CHARGES AND PAYMENT

 

 

7.1The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 7.

 

7.2The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions:

b)Monthly in advance, payable on the same day of each month of the Initial Subscription Term (i.e. if the Initial Subscription Term started on 5th January the Subscription fees would start immediately and the next month on the 1^st of the month).

7.3The Customer shall pay the Subscription Fees by debit or credit card through Payfast. The Supplier uses the third party payment processor payfast (www.payfast.co.za) to process card payments. The Supplier does not store or process any card details on its own servers.

Payfast will store the card details used to pay the Subscription Fees and will use those same card details to automatically take payment for any Subscription Fees in respect of each Renewal Period.

7.4All amounts and fees stated or referred to in this agreement:

a)shall be payable in South Africa Rand;

b)are, non-cancellable and non-refundable;

7.5) The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days’ prior notice to the Customer

8 PROPRIETARY RIGHTS

 

8.1The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

8.2The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

 We own all intellectual property rights in our software/service.

 

8.3The Supplier does not own or claim any right in any Customer Data.
9INDEMNITY

 You own all rights in any data you send or give the supplier.

9.1The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

a)the Customer is given prompt notice of any such claim;

b)the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense.

10LIMITATION OF LIABILITY

 

10.1This clause 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

a)arising under or in connection with this agreement;

b)in respect of any use made by the Customer of the Services and Documentation or any part of them; and

c)in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

 

 

10.2Except as expressly and specifically provided in this agreement:

a)the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

b)all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

c)the Services and the Documentation are provided to the Customer on an “as is” basis.

10.3Nothing in this agreement excludes the liability of the Supplier:

a)for death or personal injury caused by the Supplier’s negligence; or

b)for fraud or fraudulent misrepresentation.

 

10.4Subject to clause 10.2 and clause 10.3:

a)the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

b)the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

 

11TERM AND TERMINATION

All services are a 12-month agreement the agreement does not automatically end on the last day of the 12 months from the start date. If you want to end the agreement before the end of its 12-month term, you can do so by giving us one calendar month notice to end. A calendar month is from the first day of a month to the last day of a month. This means we must receive your notice on or before the first day of the month to end the agreement at the end of that month. You will be legally responsible to pay early cancellation costs.

 

 

11.1This agreement shall, unless otherwise terminated as provided in this clause 11, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods equal in length to the Initial Subscription Term (each a Renewal Period), unless:

a)either party notifies the other party of termination, in writing.

b)otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

 This agreement lasts for the period you select (Monthly). It will renew automatically at the end of each period until you cancel it.

 

11.2Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

a)the other party fails to pay any amount due under this agreement on the due date for payment;

b)the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

 

 

11.3 On termination of this agreement for any reason:

a)all licences granted under this agreement shall immediately terminate;

b)the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession; and

c)any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced

 

12FORCE MAJEURE

 

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

 We are not responsible for anything outside our control (power cuts, natural disasters etc.)

 

13VARIATION

 

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14 ENTIRE AGREEMENT

 

This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

SOUTH AFRICA LAW APPLIES

These terms and conditions are governed by and must be interpreted under the laws of the Republic of South Africa. This applies even if one or both of the following apply:

1. a) You do not live in the Republic of South Africa;
2. b) You agreed to these terms and conditions outside the Republic of South Africa