Terms & Conditions

Please read this Agreement carefully. All service proposals, quotation form or other order forms / statement of works or such other contract, as the case may be, that the Company / Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by this Agreement, which are binding on service-related contracts of the Company.

1. 1. Definitions

1.1 Except to the extent expressly provided otherwise, in this Agreement:

“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts.

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity.

“Agreement“ means a contract between the parties incorporating this Agreement, and any amendments to that contract from time to time.

“Business Day” means any weekday other than a public holiday in South Africa.

“Business Hours” means the hours of 08:00 to 16:30 GMT+2 on a Business Day.

“Calendar Year” means a period of 12 months ending on December 31.

“Control” means the legal power to control (directly or indirectly) the management of an entity (and ‘Controlled’ should be construed accordingly).

“Customer” means the person or entity identified as such on the Services Proposal or Quotation.

“Customer Confidential Information” means:

(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

i. was marked as “confidential” or

ii. should have been reasonably understood by the Provider to be confidential; and

(b) the Customer Data.

“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer.

“Customer Personal Information” means any Personal Information that is processed by the Provider on behalf of the Customer in relation to the Agreement.

“Data Protection Laws” means all applicable laws relating to the processing of Personal Information including the Protection of Personal Information Act (Act No. 4 of 2013).

“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer.

“Effective Date” means the date upon which the parties execute a Services Proposal in writing; or, following the Customer completing and submitting the online Services Proposal published by the Provider on the Provider’s website, the date upon which the Provider sends to the Customer an order confirmation. Additionally, in cases where quotations are issued, the Effective Date shall also extend to the date of written agreement of the quotation by both parties, ensuring commitment to the terms of the quotation from the date of such agreement.

“Force Majeure Event” means an event, or a series of related events, which is outside the reasonable control of the party affected (including, without limitation, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hosted Services” means the services as specified in the Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement.

“Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services.

b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer.

c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.

“Hosted Services Specification” means the specification for the Platform and Hosted Services set out in the Services Proposal / quotation and in the Documentation.

“Implementation Services” means the configuration, implementation and integration of the Hosted Services in accordance with the Services Proposal / quotation, excluding custom development work.

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or Initial right of application for such rights (and these ‘intellectual property rights’ include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

“Learner” means any individual engaged in a work-based learning programme that leads to an NQF registered qualification and / or is a recipient of a grant that is managed under this agreement. Also referred to as a “User”

“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades.

“Minimum Term” means, in respect of the Agreement, the period of 1 month commencing on the Effective Date.

“Mobile App” means the mobile application that is made available by the Provider through the Google Play Store;

“Personal Information” has the meaning in the Protection of Personal Information Act (Act No. 4 of 2013).

“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.

“Provider” or “Company” means Online University Management Systems (Pty) Ltd t/a OLUMS, a company incorporated in South Africa (Registration Number 2019/189490/07) with its registered office at 36 Ritson Road, Musgrave, Berea, Durban, 4001, South Africa.

“Quotation” means a formal statement offered by the Provider detailing the costs for supplying services in response to an inquiry, tender, request for quotation (RFQ), or request for proposal (RFP). This statement constitutes a binding offer that, upon acceptance, commits the Provider to deliver the specified services under the agreed terms and conditions as set out below. For quotations issued in response to tenders or RFQs, the effective date is the date on which the quotation is formally accepted in writing by both parties.

“Services” means those services that the Provider provides to the Customer as set out in the Services Proposal / quotation.

“Services Proposal” means an online Proposal published by the Provider and completed and submitted by the Customer, or a Proposal in writing signed or otherwise agreed by or on behalf of each party, in each case incorporating this Agreement by reference.

“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.

“Supported Web Browser” means the current release from time to time of Mozilla Firefox, Google Chrome or Microsoft Edge or any other web browser that the Provider agrees in writing shall be supported.

“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and terminating in accordance with Clause 2.2

“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Services Proposal / Quotation, the main body of this Agreement and the Schedules, including any amendments to that documentation from time to time.

“Update” means a hotfix, patch or minor version update to any Platform software; and

“Upgrade” means a major version upgrade of any Platform software.

“User” means a person granted access to the Services by the Customer.

2. Term

2.1. The Agreement shall commence on the Effective Date and shall continue in force indefinitely, subject to termination in accordance with Clause 19.

2.2. Unless the parties expressly agree otherwise in writing, each Services Proposal / quotation shall create a distinct and separate agreement.

3. Implementation Services

3.1. The Provider shall provide the Implementation Services to the Customer in accordance with this Agreement.

3.2. The Provider shall use reasonable endeavours to ensure that the Implementation Services are provided in accordance with the timetable set out in Addendum A (Statement of Work).

3.3. The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Implementation Services; and subject to Clause 17.1 the Provider will not be liable to the Customer in respect of any failure to meet the Implementation Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement –

See Addendum A.

3.4. Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Implementation Services by the Provider shall be the exclusive property of the Provider.

4. Hosted Services

4.1. The Provider will generate an Account for the Customer on the Effective Date and will provide to the Customer login details for that Account.

4.2. The Provider hereby grants to the Customer a worldwide, non-exclusive revocable licence to use the Hosted Services by means of a Supported Web Browser for the business purposes of the Customer in accordance with the Documentation during the Term.

4.3. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer. Learners are regarded as employees for the purposes of this agreement;

(b) the Hosted Services may only be used by the named users identified in the administrator accounts, providing that the Customer may change, add or remove a designated named user; and

(c) the Hosted Services must not be used at any point in time by more than the number of total users specified in the Services Proposal / quotation, providing that the Customer may add or remove licences in as required during the lifetime of this agreement, so long as the total number of users does not exceed the amount specified in the Services Proposal / Quotation.

4.4. Except to the extent expressly permitted in this Agreement or required by law, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following:

(a) the Customer is not permitted to sub-license its right to access and use the Hosted Services;

(b) the Customer is not permitted to allow for any unauthorised person to access or use the Hosted Services.

4.5. The Customer shall use reasonable endeavours, including high standard security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.

4.6. The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.

4.7. The Customer shall comply with Schedule 1 (Acceptable Use Policy) and shall ensure that all persons using the Hosted Services are doing so with the authority of the Customer or by means of an Account comply with Schedule 1 (Acceptable Use Policy).

4.8. The Customer shall not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.9. The Customer shall not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.10. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term. All rights, title and interests in and to such software code remain proprietary of the Provider.

4.11. The Provider may at its sole discretion suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue following 30 days notice provided to the Customer.

5. Support Services

The Provider shall provide the Support Services to the Customer during the Term, in accordance with the Services Proposal / Quotation and Schedule 4 (Support SLA).

6. Customer obligations

6.1. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a) co-operation, support and advice;

(b) information and documentation; and

(c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

6.2. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.

7. Customer Data

7.1. The Customer hereby grants to the Provider a licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement, subject always to any express restrictions elsewhere in the Agreement.

7.2. The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

7.3. Unless stated on the Services Proposal / Quotation, the Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 1 calendar year.

7.4. Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

8. Mobile App

8.1. The parties acknowledge and agree that the use of the Mobile App, the parties respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such rights.

9. No assignment of Intellectual Property Rights

9.1. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

10. Charges

10.1. The Customer shall pay the Charges to the Provider in accordance with this Agreement and accepted Services Proposal / Quotation.

10.2. If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.

10.3. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

10.4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days notice of the variation.

10.5. If any amount due to be paid by the Customer to the Provider under this Agreement is overdue following 30 days notice provided to the Customer, the Provider may at its sole discretion and without prejudice to its termination rights in clause 19, suspend the provision of the Services or any part thereof.

11. Payments

11.1. The Provider shall invoice for the Charges to the Customer from time to time during the Term.

11.2. The Customer shall pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 11.2.

11.3. The Customer shall pay the Charges and other amounts due to the Provider by way of electronic funds transfer without deduction or set off into the following bank account (or such other bank account as notified by the Provider in writing to the Customer from time to time).

Bank: Standard Bank

Name: Online University Management Systems (Pty) Ltd

Current Account 053072073

Branch Code JHB OPS HUB (0155)

Branch Code 051001 (Electronic payments)

SWIFT code SBZA ZA JJ

11.4. Without derogating from the provisions of clauses 10.5 and 18, if the Customer fails to pay any amount due to the Provider under this agreement, then interest will accrue on the overdue amount at the prime rate as set by the major banks in South Africa plus 2% (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

11.5. All quoted pricing shall escalate by Consumer Price Index [CPI] +2% at the end of each calendar year unless otherwise agreed in writing by the parties.

11.6. Prices stated in any Quotations provided by OLUMS are valid for a period of 90 days from the date of the quotation, unless otherwise specified. In responses to formal bidding processes, including RFQs and tenders, the validity period specified in the bidding documents will take precedence over the standard 90-day validity period.

12. Confidentiality obligations

12.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information of a confidential nature which includes, without limitation, business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company further includes, without limitation, non- public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Provider to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:

(i) to take reasonable precautions to protect such Confidential Information, and

(ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third-party any such Confidential Information.

12.2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information following the disclosure thereof or any information that the Receiving Party can document

(a) is or becomes generally available to the public, or

(b) was in its possession or known by it prior to receipt from the Disclosing Party, or

(d) was independently developed without use of any Confidential Information of the Disclosing Party or

(e) is required to be disclosed by law.

12.3. Customer shall own all right, title and interest in and to the Customer Data as provided at the inception of this agreement. The Provider shall own and retain all right, title and interest in and to

(a) the Services and Software, all improvements, enhancements or modifications thereto,

(b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and

(d) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services

12.4. Notwithstanding anything to the contrary, the Provider shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Provider will be free (during and after the term hereof) to:

i. use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings, and

ii. disclose such data solely in aggregate or other de-identified form in connection with its business.

12.5. No rights or licenses are granted except as expressly set forth herein.

12.6. The Customer undertakes to have all contractors, employees, or service providers of the Customer, to whom confidential information of the Provider will be disclosed during the rendering of services by the Provider, sign a separate NDA and Confidentiality agreement, which must be signed and returned to the Provider, by the Customer, upon request. The Customer must disclose to the Provider the details of all contractors, employees, or service providers to whom it is anticipated that confidential information will be made available, at the outset of the contract or as soon as it becomes aware of the need to disclose such confidential information.

13. Data protection

13.1. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Information.

13.2. The Customer warrants to the Provider that it has the legal right to disclose all Personal Information that it does in fact disclose to the Provider under or in connection with the Agreement.

(a) The Provider shall retain the Customer Personal Information for the purposes of further reporting for a period of five (5) years. Reporting shall only be conducted on the written request of the Customer and agreement by the Provider and subject to the charges as detailed in the Services Proposal / Quotation.

13.3. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Information carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

14. Warranties

14.1. The Provider warrants to the Customer that:

a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under this Agreement.

b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfillment of the Provider’s obligations under this Agreement. The Provider further warrants to the Customer that:

i. the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification.

ii. the Platform will incorporate security features reflecting the requirements of good industry practice.

15. Acknowledgements and warranty limitations

15.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

15.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

15.3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

15.4. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

16. Limitations and exclusions of liability

16.1. Nothing in this Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence.

(b) limit or exclude any liability for fraud or fraudulent misrepresentation.

(d) exclude any liabilities that may not be excluded under applicable law.

16.2. The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:

(a) are subject to Clause 16.1; and

(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

16.3. The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

16.4. The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 16.4 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.

16.5. The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

16.6. The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12-month period preceding the commencement of the event or events.

16.7. The aggregate liability of the Provider to the Customer under the Agreement shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement.

17. Force Majeure Event

17.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

17.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

17.3. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

18. Termination

18.1. The Provider may terminate the Agreement without cause by giving to the Customer not less than 30 days written notice of termination. The Customer may only terminate the Agreement by giving to the Provider not less than 30 days written notice of termination after the end of the Minimum Term.

18.2. Without prejudice to claim damages, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any material breach of the Agreement, and the breach is not remediable.

(b) the other party commits a material breach of the Agreement, and the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

18.3. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

i. is dissolved;

ii. ceases to conduct all (or substantially all) of its business;

iii. is or becomes unable to pay its debts as they fall due;

iv. is or becomes insolvent or is declared insolvent; or

v. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

18.4. The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Provider has given to the Customer at least 30 days written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 18.4.

19. Effects of termination

19.1. Upon the termination of the Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 8, 11.2, 11.4, 12, 13.1, 13.3, 17, 19, 22, 23, 24, 25, 26.1, 26.2, 27, 28 and 29.

19.2. Except to the extent that this Agreement expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

19.3. Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties other legal rights.

20. Notices

20.1. Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in the Services Proposal / Quotation and Clause 20.2):

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

20.2. The Provider’s contact details for notices under this Clause 20 are as follows: OLUMS (Pty) Ltd at 21 Spring Grange Road, Westville, Durban, 3630.

20.3. The addressee and contact details set out in the Services Proposal / Quotation and Clause

20.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.

21. Subcontracting

21.1. Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under the Agreement.

21.2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

21.3. Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third-party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

22. Assignment

22.1. The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider’s contractual rights and obligations under this Agreement.

22.2. The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer’s contractual rights and obligations under this Agreement.

23. No waivers

23.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

23.2. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

24. Severability

24.1. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

24.2. If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

25. Third party rights

25.1. The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

25.2. The exercise of the parties rights under the Agreement is not subject to the consent of any third party.

26. Variation

26.1. The Agreement may not be varied except in accordance with this Clause 26.

26.2. The Agreement may be varied by means of a written document signed by or on behalf of each party.

26.3. The Provider may vary the Agreement by giving to the Customer at least 30 days written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 26.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.

27. Entire agreement

27.1. The Services Proposal / Quotation, the main body of this Agreement and the Schedules and Addenda shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

27.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

28. Law and jurisdiction

28.1. This Agreement shall be governed by and construed in accordance with South African law.

28.2. Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of South Africa.

29. Interpretation

29.1. In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

29.2. The Clause headings do not affect the interpretation of this Agreement.

29.3. References in this Agreement to ‘calendar months’ are to the 12 named periods (January, February and so on) into which a year is divided.

29.4. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

30. Miscellaneous

30.1. Both parties agree not to solicit, offer employment to, nor use the services of any employee of the other party who is involved in performing this Agreement (otherwise than by general advertising for the duration of this Agreement) and for a period of twelve (12) Months from the date of termination of this Agreement, except as expressly provided for in this Agreement or where the other party consents thereto in writing.

30.2. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

30.3. Customer hereby grants OLUMS a non-exclusive, royalty-free license to use, reproduce, distribute and publicly display Customer’s name and logos in connection with OLUMS’ corporate resume.

Schedule 1 (Acceptable use policy)

1. Introduction

1.1. This acceptable use policy (the ‘Policy’) sets out the rules governing:

(a) the use of the website at olums.org or any subdomains, any successor website, and the services available on that website or any successor website (the ‘Services’); and

(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (‘Content’).

1.2. References in this Policy to ‘you’ are to any customer for the Services and any individual user of the Services (and ‘your’ should be construed accordingly); and references in this Policy to ‘us’ are to OLUMS (Pty) Ltd (and ‘we’ and ‘our’ should be construed accordingly).

1.3. By using the Services, you agree to the rules set out in this Policy.

1.4. We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5. You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

30. General usage rules

2.1. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2. You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.3. You must ensure that all Content complies with the provisions of this Policy.

31. Unlawful Content

3.1. Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2. Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;

(d) infringe any right of confidence, right of privacy or right under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g) be in contempt of any court, or in breach of any court order;

(h) constitute a breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) constitute a breach of official secrets legislation; or

(k) constitute a breach of any contractual obligation owed to any person.

3.3. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

32. Graphic material

4.1. Content must be appropriate for all persons who have access to or are likely to access the Content in question.

33. Factual accuracy

5.1. Content must not be untrue, false, plagiaristic, inaccurate or misleading.

5.2. Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

34. Negligent advice

6.1. Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

35. Etiquette

7.1. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3. Content must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4. You must not use the Services to send any hostile, or any communication intended to insult, including such communications directed at a particular person or group of people.

7.5. You must not use the Services for the purpose of deliberately upsetting or offending others.

7.6. You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

7.7. You must ensure that Content does not duplicate other content available through the Services.

7.8. You must ensure that Content is appropriately categorized.

7.9. You should use appropriate and informative titles for all Content.

7.10. You must at all times be courteous and polite to other users of the Services.

36. Marketing and spam

8.1. Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

8.2. You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

37. Monitoring

9.1. You acknowledge that we may actively monitor the Content and the use of the Services.

38. Data mining

10.1. You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

39. Hyperlinks

11.1. You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

40. Harmful software

12.1. The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

12.2. The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

Schedule 2 (Availability SLA)

1. Introduction to availability SLA

1.1. This Schedule 2 sets out the Provider’s availability commitments relating to the Hosted Services.

1.2. In this Schedule 2, ‘uptime’ means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.

41. Availability

2.1. The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.

2.2. The Provider shall be responsible for measuring uptime and shall do so using any reasonable methodology.

42. Exceptions

3.1. Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Provider’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;

(d) a fault or failure of the Customer’s computer systems or networks;

(e) any breach by the Customer of the Agreement; or

(f) scheduled maintenance carried out in accordance with the Agreement.

Schedule 3 (Maintenance SLA)

1. Introduction

1.1. This Schedule 3 sets out the service levels applicable to the Maintenance Services.

2. Scheduled Maintenance Services

2.1. The Provider shall where practicable give to the Customer at least 10 Business Days prior notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this Schedule 3.

Schedule 4 (Support SLA)

1. Introduction

1.1. This Schedule 4 sets out the service levels applicable to the Support Services.

2. Helpdesk

2.1. The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.

2.2. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3. The Provider shall ensure that the helpdesk is accessible by using the Provider’s Company will provide Technical Support to Customer via electronic mail on weekdays during the hours of 8:00 am through to 4:30 pm South African Standard time, with the exclusion of Public Holidays (“Support Hours”). Customer may initiate a helpdesk ticket at any time by emailing support@olums.org

2.4. The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5. The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

3. Response and resolution

3.1. Issues raised through the Support Services shall be categorised as follows:

(a) critical: the Hosted Services are inoperable, or a core function of the Hosted Services is unavailable;

(b) serious: a core function of the Hosted Services is significantly impaired;

(c) moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and

(d) minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.

3.2. The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3. The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a) critical: 1 Business Hour;

(b) serious: 4 Business Hours;

(d) minor: 5 Business Days.

3.4. The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request)

(a) an acknowledgement of receipt of the request,

(b) where practicable an initial diagnosis in relation to any reported error,

3.5. The Provider shall use all reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following worst-case time periods:

(a) critical: 2 Business Hours;

(b) serious: 8 Business Hours;

(d) minor: 10 Business Days.

43. Provision of Support Services

4.1. The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

44. Limitations on Support Services

5.1. If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed five hours then:

(a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b) the Provider may agree to provide Support Services to the Customer during the remainder of that period where agreed in writing in accordance with Clause 26.2.

5.2. The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

(a) the improper use of the Hosted Services by the Customer; or

(b) any alteration to the Hosted Services made without the prior consent of the Provider.

Schedule 5 (Data processing information)

1. Categories of data subject

1.1. The following categories of data subject may be processed:

(a) The Users as specified in Clause 4.3; and

(b) “Research Participants”, meaning any person for whom the Customer processes data using the Hosted Services.

2.Types of Personal Information

2.1. The following types of Personal Information may be processed:

(a) Name;

(b) Contact information, including but not limited to email addresses, postal addresses and telephone numbers;

(c) Demographic data, including but not limited to age, ethnicity, gender, sexual orientation, customer segment and religious beliefs; and

(d) Data collected from research sessions, including but not limited to text, audio and video recordings of contributions from Research Participants.

3.Purposes of processing

3.1. Personal Information may be processed:

(a) For the Services rendered to the Customer as set out in the Services Proposal / Quotation;

(b) For the purposes of managing user accounts;

(d) For the purposes of qualitative research carried out by the Customer.

4.Security measures for Personal Information

4.1. Personal Information that is sent to or from the Hosted Services must be protected using encryption technology.

5.Sub-processors of Personal Information

5.1. Sub-processors may be used:

(a) For the purposes of managing user accounts;

(b) For the purposes of monitoring and improving the Hosted Services; and

Terms & Conditions

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