Legal Documents

Legal Documents

1. DEFINITIONS AND INTERPRETATION

1.1. In these Terms, the following terms and phrases shall have the following meanings, unless the context otherwise requires:

1.1.1. “Account” shall mean the unique access profile allocated to a Licensee upon registration, and includes (i) the single, unique System Administration Credential, and (ii) all Credentials and Services associated therewith. All Services accessed and used by an Authorised User associated with an Account will be charged to the account holder, being the Licensee.

1.1.2. “Applicable Laws” shall mean any and all applicable laws, regulations, mandatory legal requirements and/or administrative orders in the jurisdiction(s) where a Service is to be provided, accessed and/or used, as the case may be.

1.1.3. “Authorised User” shall mean a duly authorised user of Licensee who has been authorised to access the Licensee’s Account through its unique access Credentials.

1.1.4. “Business Day” shall mean any day excluding Saturdays, Sundays and any gazetted public holiday in the Republic of South Africa.

1.1.5. “Charges” shall mean all fees and charges payable by the Licensee to WeBill in respect of a Service, as set out in WeBill’s published price list available at the WeBill website where an Account is registered, or otherwise in writing, and revised from time to time in accordance with Clause 8.

1.1.6. “Confidential Information” shall mean all information (in whatever format): (i) which relates to these Terms and/or a Service Order; (ii) which is designated as confidential by either Party; or (iii) which relates to the business, affairs, networks, customers, products, developments, trade secrets, know-how and personnel of either Party (including, in the case of the Licensee, Licensee Data) and may reasonably be regarded as being the confidential or proprietary information of the disclosing Party, and shall include, without limitation, all software and associated material and documentation (including the Software), including the information contained therein.

1.1.7. “Cloud Platform” shall mean the WeBill cloud-based platform hosting the various Services which WeBill makes available to Licensees from time to time, at such address and through such means as reasonably determined by WeBill.

1.1.8. “Credential” shall mean a unique username and password combination allowing a person to successfully access the Licensee’s Account and use the Services provided on the Cloud Platform or the Mobile Applications, as the case may be, and shall include a System Administration Credential.

1.1.9. “Deliverable” shall mean any deliverable or work product (or any part thereof) created or delivered by WeBill relating to the Services.

1.1.10. “Documentation” shall mean, in respect of any Service or Software, the online user guides, help and training material, policies and/or terms and conditions applicable to such Service or Software, accessible in the manner as advised by WeBill from time to time, and as updated and amended from time to time, including without limitation any notices and license information, external usage policies, and security, privacy and architecture documentation.

1.1.11. “Emergency Works” shall mean works, the execution of which, at the time it is proposed to execute them, is required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided or generated by a third party; (iii) substantial loss to WeBill or any third party; (iv) a violation of Applicable Laws; and such other works as WeBill deems appropriate in the circumstances, acting reasonably, for the preservation of the Services.

1.1.12. “Excusing Event” shall mean (i) Licensee’s act or omission, or an act or omission of an Authorised User or third party for which Licensee is responsible, including, without limitation, failure to supply accurate, complete, and timely information when requested; (ii) a Force Majeure Event; (iii) maintenance of the Services in accordance with these Terms; (iv) defects in, or failure, destruction, theft, loss or incorrect configuration of, third-party software or equipment not provided by WeBill, including, without limitation, Licensee Equipment, or the termination or expiry of Licensee’s rights to use same; (v) inability of WeBill to procure the necessary dependent technology or other resources on commercially reasonable terms; (vi) compliance with Applicable Laws or requests of governmental entities that adversely and materially affects WeBill’s ability to provide the Services; (vii) any failure by Licensee to comply with WeBill’s reasonable instructions in relation to the modification of the Licensee Equipment; or (viii) any other event outside of the reasonable control of WeBill.

1.1.13. “Force Majeure Event” shall mean any cause beyond a Party’s reasonable control affecting the performance of its obligations, including, but not limited to, fire, flood, explosion, accident, war, acts of terrorism, strike, embargo, governmental requirement, civil or military authority, Act of God, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of other providers of utility or telecommunications services, including acts and omissions resulting in the unavailability of the services they provide.

1.1.14. “Internet” shall mean the international interconnected network of networks using the TCP/IP protocol to exchange data communications.

1.1.15. “Licensee” shall mean the Licensee that has entered into this Agreement by successfully registering on the Cloud Platform and obtained a unique System Administration Credential that has been activated.

1.1.16. “Licensee Data” shall include, but not be limited to, data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of the Licensee, its employees or Authorised Users, and other data provided to or obtained by WeBill and its agents in connection with the provision of Services, but excludes any anonymised, aggregated or derived data that is created by WeBill for its own internal purposes or which is proprietary or confidential to WeBill.

1.1.17. “Licensee Equipment” shall mean hardware, software, systems and all other equipment or facilities provided by the Licensee and used in order to receive the Services.

1.1.18. “Mobile Applications” shall mean WeBill’s proprietary mobile applications available from time to time, access to which is granted to Authorised Users who register on the Cloud Platform or directly by downloading the Mobile Application from authorized application store providers.

1.1.19. “Party” shall mean each of WeBill and the Licensee, and “Parties” shall be construed accordingly.

1.1.20. “Policies” shall mean all reasonable policies, procedures and instructions of WeBill and its Third Party Contractors as updated and amended from time to time and made available to Licensee, whether on the WeBill website or otherwise in writing.

1.1.21. “Service” shall mean the specific service(s) available on the Cloud Platform or any of the Mobile Applications provided by WeBill to an Authorised User whether there is a charge for such service or not.

1.1.22. “Service Utilisation” shall mean the use, in part or in full, by an Authorised User of one or more of the Service(s) available in the Cloud Platform or the Mobile Applicable.

1.1.23. “Software” shall mean, to the extent applicable:

1.1.23.1. the system through which Licensee and its Authorised Users can access the Services, as amended; and
1.1.23.2. such other solutions or software owned and/or licensed by WeBill which it uses for the purpose of providing the Cloud Platform or the Mobile Applications.

1.1.24. “Specific Terms” shall mean any additional terms imposed on the Licensee in respect of the Services and/or Software, as incorporated or contained in the Documentation, or as otherwise made available to Licensee on the Cloud Platform or the mobile Applications, or otherwise in writing, all as updated and amended from time to time.

1.1.25. “Subscription Terms and Conditions” shall mean these terms and conditions which regulates access to and/or use of the Software and/or Services, as updated and amended from time to time;

1.1.26. “System Administration Credential” shall mean the single, immutable and unique Credential assigned to an Account on the successful registration of such Account on the Cloud Platform. All other Credentials to an Account are created by means of permission delegated by the System Administration Credential. While other Credentials can be deactivated or deleted, the deletion of the System Administration Credential will result in the deletion of the Account, and WeBill accepts no liability or responsibility for such deletion or any damage or loss of any nature whatsoever resulting therefrom or relating thereto.

1.1.27. “Terms” shall mean, as between WeBill and Licensee generally, these Subscription Terms and Conditions, and, as between WeBill and Licensee for a Service, shall include the relevant Specific Terms, all as updated and amended from time to time.

1.1.28. “Third Party Contractors” shall mean, in respect of any Services, or part thereof, WeBill’s contractors, suppliers, vendors, value added resellers or licensors (as the case may be) who are not party to these Terms.

1.1.29. “WeBill” shall mean WeBill Proprietary Limited, with registration number 2016/538436/07.

1.1.30. “WeBill IP” shall mean any and all intellectual property that WeBill has created, acquired or otherwise has rights in and may, in connection with the performance of its obligations under this Agreement, employ, provide, modify, create or otherwise acquire rights in and includes, without limitation, all concepts; ideas; methods; methodologies; procedures; processes; know-how; techniques; function, process, system and data 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 and routines; and logic, coherence and methods of operation of systems. Some or all of the aforementioned IP is or may be patented in the name of WeBill or any person or other legal entity mandated by the WeBill.

1.2. Unless the context otherwise requires, in these Terms, a reference to:

1.2.1. a person includes a reference to a body corporate, association or partnership;
1.2.2. a person includes a reference to that person’s legal personal representatives, successors and permitted assigns;
1.2.3. any statute or statutory provision includes references to that statute or provision as amended, modified or re- enacted; and
1.2.4. a document is a reference to that document as supplemented or varied from time to time.

2. COMMENCEMENT AND SERVICE UTILISATION 

2.1. These Terms shall take effect from the earliest of:

2.1.1. the creation of an Account;
2.1.2. the creation of a System Administration Credential;
2.1.3. the first log on to a Mobile Application;
2.1.4. the date of acceptance of these Terms by any Authorised User of Licensee, either as indicated by Licensee or one of its Authorised Users ticking the appropriate box and/or clicking the “I Accept” button online at the website where Licensee registers for, subscribes to and or purchases the Services, subject always to WeBill’s acceptance thereof by notification to the Licensee; or
2.1.5. the date that Licensee or any of its Authorised Users first accesses and/or uses a Service, as the case may be and shall continue in force unless and until terminated in accordance with these Terms. For the avoidance of doubt, these Terms shall apply to all Services, regardless of whether same is provided as a paid for, free or trial Service.

2.2. Subject to compliance with these Terms and payment of the corresponding Charges, if applicable, the Licensee may access and/or use any of the Services available to it on the Cloud Platform and/or Mobile Application from time to time, in part or in whole.

3. SERVICE TERMS

3.1. Each Service Utilisation by an Authorised User shall create an individual contractual relationship between the Parties to provide and receive the relevant Service subject to these Terms and, where applicable, any applicable Specific Terms. Such contractual relationship shall be governed by these Terms, together with any specific terms pertaining to such Service from time to time, to which terms the Parties agree. Except where specifically provided to the contrary in the Specific Terms, and then only to the extent so specified, each Service shall be subject to these Subscription Terms and Conditions. Insofar as any term and condition for a Service conflicts with these Subscription Terms and Conditions, the terms and conditions in these Subscription Terms and Conditions shall prevail.

3.2. In addition to the terms of these Subscription Terms and Conditions and the relevant Service Orders, the Parties acknowledge and agree that the Services shall be subject to all Applicable Laws, including, but not limited to, all applicable regulatory and data protection requirements.

3.3. Without releasing it from any of its obligations, WeBill shall be entitled at any time, and without notice, to use subcontractors to perform some or all of its obligations under these Terms.

3.4. The Licensee shall not be entitled to resell, charge, transfer or otherwise dispose of a Service (or any part thereof) to any third party without WeBill’s consent.

3.5. WeBill reserves the right from time to time to make changes to a Service, or to change any applicable Credential or Account access details required for receipt of a Service, provided always that such change does not materially affect the relevant Service. WeBill shall use reasonable endeavours to give the Licensee reasonable notice of any changes to Credentials or Account access details.

3.6. Should Licensee require any services other than the Services, then such other services may be provided by WeBill subject to the terms of a separate agreement or Service Order, as the case may be, which shall be concluded between the Parties, and shall set out the terms and conditions, including payment terms, attaching to such additional service. Notwithstanding the foregoing, in the event that WeBill provides additional services to Licensee at Licensee’s request that do not form part of this or any other agreement, WeBill shall be entitled to charge Licensee for such additional services at its standard time-and-materials fees and charges applicable at the time.

4. SERVICE PERFORMANCE

4.1 In performing its obligations under these Terms, WeBill shall at all times:

4.1.1. exercise the reasonable skill and care of a competent provider of the Services;
4.1.2. comply with the provisions of these Terms;
4.1.3. ensure that it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of these Terms and to provide the Services to the Licensee;
4.1.4 have the right, power and authority to grant the rights to Licensee pursuant to Clause 9.1 free of all liens, encumbrances and other restrictions.

4.2. To the reasonable knowledge of WeBill, the rights granted to Licensee hereunder and/or the use of the Services by Licensee in accordance with the terms and conditions herein, will not infringe upon nor violate any patent, copyright, trade secret, or other proprietary right of any third party. To this extent, WeBill shall use commercially reasonable endeavours to ensure that Licensee’s use and possession of the Services consistent with the terms of these Terms, shall not be adversely affected, interrupted or disturbed by WeBill or any entity asserting a claim under or through WeBill.

4.3. Except as specifically provided for in these Terms, all Services provided by WeBill under these Terms are provided “as is”. WeBill hereby excludes and disclaims all warranties, whether expressed or implied, statutory or otherwise, except those warranties expressly made in these Terms, including any implied warranties of satisfactory quality, no latent defects, merchantability and fitness for a particular purpose, and all warranties in respect of third-party software applications provided pursuant to these Terms (including the Software).

4.4. WeBill shall be entitled to change to nature and scope of any Service provided by WeBill under these Terms from time to time, on written notice to Licensee, such change to take effect on the effective date indicated on such notice. Licensee shall not have, and hereby waives, any claim of any nature whatsoever that it may have against WeBill for any loss or damages suffered resulting from or relating to such change.

4.5. While WeBill will take all reasonable and legally required measures to ensure the security and integrity thereof, including those set out in its Polices, WeBill does not warrant that the information transmitted by or available to Licensee through the Service(s) will be:

4.5.1. preserved or sustained in its entirety;
4.5.2. delivered to any or all of the intended recipients;
4.5.3. suitable for any purpose;
4.5.4. free of inaccuracies or defects or bugs or viruses of any kind; or
4.5.5. secured against intrusion by unauthorised third parties, and WeBill assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this Clause 4.4.

4.6. WeBill will use its reasonable commercial endeavours to make the Services available 24 (twenty-four) hours per day, 7 (seven) days per week and 365 (three hundred and sixty-five) days of each year but does not guarantee a minimum uptime.

4.7. WeBill agrees to maintain a disaster recovery facility and a disaster recovery plan in accordance with its Policies, for the purposes of ensuring continuity of the Services in the event of a disaster. Such plan will at all times be in line with relevant industry standards and practices.

4.8. In the event of a disaster, WeBill will implement the disaster recovery plan referred to in Clause 4.6 above. Notwithstanding the foregoing, Licensee is exclusively responsible for designing, implementing and maintaining an appropriate disaster recovery plan in respect of Licensee’s systems which covers, without limitation, all Licensee Data and information stored on or generated by the Services on the Licensee’s systems. For the avoidance of doubt, in no event shall WeBill be liable for any loss or destruction of Licensee Data of any nature whatsoever, and howsoever arising.

5. SERVICE AVAILABILITY AND MAINTENANCE

5.1. Notwithstanding anything to the contrary contained in these Terms, WeBill will not be liable or responsible for any loss or damage resulting from or relating to any unavailability of the Services caused by one or more of the following:

5.1.1. any maintenance, suspension, or termination of the Services, whether in whole or in part, in accordance with the provisions of these Terms;
5.1.2. the failure of servers or services outside of a data centre on which the Services are dependent, including, but not limited to, inaccessibility of the Internet that is not caused by WeBill’s infrastructure;
5.1.3. an attack on WeBill’s infrastructure, including a denial of service attack or unauthorised access, provided that WeBill has implemented and upheld reasonable security measures to prevent such attacks;
5.1.4. any failure by the Licensee to report a Service unavailability in accordance with these Terms within one (1) day of the date of occurrence, to the extent that such continued unavailability could reasonably have been limited or prevented by WeBill if Licensee had timeously reported the Service unavailability to WeBill in accordance with these Terms. In such cases, only the period calculated from the date of Licensee’s failure as aforesaid until the date upon which WeBill became aware of such Service unavailability shall be excluded from the calculation of downtime for the purposes of this Clause 5.1;
5.1.5. unavailability that results from the failure of Licensee Equipment or any hardware, software, equipment, service or facilities not provided by WeBill;
5.1.6. any unavailability caused by a failure by Licensee to timeously implement configurations to the Services required by WeBill, or due to any configuration performed by Licensee and not approved by WeBill;
5.1.7. any unavailability caused by Licensee’s breach of these Terms or the Policies; or
5.1.8. an Excusing Event.

5.2. Unless otherwise provided for, WeBill may, from time to time, suspend the provision of Services for the purpose of conducting routine maintenance, repair and/or improvement on the technical infrastructure by means of which the Services are provided during a standard maintenance window determined by WeBill from time to time. WeBill shall use reasonable endeavours to notify Licensee of such maintenance window(s) from time to time. WeBill shall not be liable for any loss or damage of any nature whatsoever and howsoever arising as a result of such suspension in accordance with this Clause 5.2.

5.3. Notwithstanding the foregoing, Licensee acknowledges that circumstances may arise from time to time that require WeBill to perform Emergency Works. In such cases, WeBill shall endeavour to inform Licensee as soon as possible of this requirement and the planned suspension of Services. Notwithstanding the foregoing, however, the Parties acknowledge and agree that WeBill may, acting reasonably, perform the Emergency Works without prior notice to Licensee, provided that WeBill shall notify Licensee of such Emergency Works and suspension of the Services as soon as reasonably possible.

6. SERVICE SUSPENSION

6.1. WeBill may, acting reasonably and without prejudice to any right which it might have to terminate a Service and/or these Terms, elect to immediately suspend the provision of a Service (or part thereof) if it:

6.1.1. has reasonable grounds to consider that it is entitled to terminate the Service and/or these Terms pursuant to Clause 14 or that Licensee has committed a breach of these Terms or the Policies;
6.1.2. is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority;
6.1.3. needs to carry out Emergency Works to the Services or WeBill’s infrastructure or any part thereof, subject to the provisions of Clause 5.3;
6.1.4. has reasonable grounds to believe that the Service is being used fraudulently or illegally or in violation of Clause 7.5;
6.1.5. does not receive payment in full of any Charge by the due date of payment thereof or if there is a reversal of Charges to Licensee’s credit or debit card;
6.1.6. has reasonable grounds to believe that the Licensee is or has been involved or connected with criminal activity or other activity, which is or may be detrimental to WeBill, its Third Party Contractors or its customers (which may include without limitation, if Licensee is included as an offender on any official corruption list, or other list of defaulters published by any governmental authority, agency, organisation or other administrative or regulatory authority);
6.1.7. has reasonable grounds to believe that Licensee has provided it with false information prior to or upon entering into these Terms, or that it lacked the capacity to enter into these Terms;
6.1.8. has reasonable grounds to believe that the security or functionality or the Services or any component thereof are under a significant threat; or
6.1.9. determines that an Excusing Event has occurred.

6.2. If WeBill exercises its right to suspend the Service (or part thereof) pursuant to Clauses 6.1.2, 6.1.3 or 6.1.8, it shall, whenever reasonably practicable, give prior notice of such suspension to the Licensee, such notice to state the grounds of such suspension and its expected duration, if applicable. WeBill shall, in such circumstances, use all reasonable endeavours to resume the Service as soon as is practicable.

6.3. If the Service (or part thereof) is suspended as a consequence of the breach, fault, act or omission of the Licensee, the Licensee shall, upon demand, pay to WeBill all reasonable costs and expenses reasonably incurred by WeBill in the implementation of such suspension and/or recommencement of the provision of the Service.

6.4. WeBill shall not be liable for any loss, damage or inconvenience suffered by the Licensee as a result of any suspension made pursuant to Clause 6.1, except to the extent that such suspension is made pursuant to Clause 6.1.3 or 6.1.8 for reasons which are solely and directly attributable to the gross negligence of WeBill, and then subject always to Clause 10.

7. CUSTOMER OBLIGATIONS AND WARRANTIES

7.1. The Licensee shall provide WeBill with such facilities and information as WeBill may reasonably require to enable it to perform its obligations or exercise its rights under these Terms. Without derogating from the generality of the foregoing, Licensee shall, to the extent applicable:

7.1.1. render all decisions and approvals required as soon as is reasonably possible;
7.1.2. provide WeBill with such reasonable access to Licensee Data, Licensee Equipment and Licensee’s computer systems as is required for WeBill to discharge its obligations in terms of these Terms, including any necessary licences, waivers or consents reasonably required by WeBill;
7.1.3. notify WeBill as soon as reasonably possible of any issues, concerns or disputes in connection with the Services;
7.1.4. be responsible for the accuracy and completeness of all Licensee Data;
7.1.5. comply with Policies in connection with the Services; and
7.1.6. take commercially reasonable measures to ensure that no malicious software is introduced into the Software by its personnel or any third party.

7.2. Licensee warrants at the date of these Terms and throughout the term of these Terms, that:

7.2.1. it has the full right, power and authority to enter into and perform its obligations under these Terms;
7.2.2. it owns or has obtained all the necessary consents and authorisations in respect of any intellectual property rights contained in each and every part of the Licensee Data, and that the use by WeBill of the Licensee Data will not infringe any intellectual property or proprietary rights of any third party;
7.2.3. it shall be responsible for ensuring that the Services will be fit for the Licensee’s intended purposes;
7.2.4. it shall timeously make payment of all fees, charges and other amounts which become due under these Terms;
7.2.5. it shall provide WeBill with all such reasonable assistance and cooperation that WeBill may reasonably require to investigate any interruption of Service, security problems, and any other violations or alleged violations of these Terms and/or the Policies;
7.2.6. it shall comply with Applicable Laws and shall not at any time use the Services in contravention of such Applicable Laws nor for any illegal or immoral purpose;
7.2.7. it shall ensure that, at its own cost and expense, regular and complete back-ups of Licensee Data are made to prevent any loss or destruction thereto;
7.2.8. it shall prohibit any person other than its Authorised Users, from accessing the Service(s);
7.2.9. all Licensee Equipment used by the Licensee to access and/or use the Services shall at all times comply with WeBill’s published recommendations, it being agreed that (i) it is a prerequisite for the access and/or use of the Services that such Licensee Equipment shall comply with WeBill’s published minimum requirements, and (ii) all warranties provided by WeBill in respect of the Services shall, notwithstanding anything to the contrary herein contained, be conditional on Licensee complying with WeBill’s published maximum requirements in respect of the Licensee Equipment; and
7.2.10. without derogating from the generality of the foregoing, it shall comply with WeBill’s reasonable instructions in relation to the modification of the Licensee Equipment to enable the Licensee to receive the Services, at Licensee’s own expense.

7.3. Notwithstanding anything to the contrary contained in these Terms, the Licensee shall be liable for any and all damage to WeBill’s infrastructure which is caused by:

7.3.1. any act or omission of the Licensee or the Licensee’s breach of the terms of these Terms; or
7.3.2. the malfunction or failure of any equipment or facility provided by or on behalf of the Licensee or Authorised Users, including but not limited to the Licensee Equipment. WeBill shall not be liable for any costs incurred by Licensee arising out of any malfunction or failure of any such equipment or facility, including Licensee Equipment.

7.4. The Licensee warrants that it holds and shall continue to hold such licences and/or other authorisations as are required under all Applicable Laws, to receive the Services. WeBill reserves the right to suspend Licensee’s access to, and use of, the Services where the Licensee has failed to comply with the provisions of this Clause 7.4 and WeBill shall in no event be liable in respect of the Licensee’s failure to comply with this Clause 7.4 or any loss or damage of any nature whatsoever and howsoever arising suffered by Licensee as a result of such suspension.

7.5. The Licensee warrants and undertakes that it shall, and shall procure that all of its Authorised Users shall, in its/their use of the Services, comply with the then-current version of the end user license agreement(s) (each a “EULA”), Policies and any other Documentation that may be applicable to the Services. The applicable EULA, Policies and Documentation shall be available at the website where Licensee registers for, subscribes to and/or purchases the Services, and shall be made available by WeBill to the Licensee on request. The Licensee shall, and shall procure that all of its Authorised Users shall, prior to commencing its use of the Services, read and understand the EULA, Policies and Documentation. By using the Services and continuing to use the Services, the Licensee acknowledges that it and its Authorised Users have read, understood and accepted the terms of the EULA, Policies and Documentation and agree(s) to be bound thereby. Changes to the EULA, Policies and/or Documentation shall be effective upon posting of the revised documents at the abovementioned URL or other notice to the Licensee. Licensee acknowledges that, by continuing the use of the Services after such effective date, it and its Authorised Users have read, understood and accepted the terms of the EULA, Policies and Documentation, as amended, and agree(s) to be bound thereby.

7.6. For the duration of these Terms, Licensee shall not, nor shall it allow its Authorised Users to, commit nor attempt to commit any act or omission which directly or indirectly:

7.6.1. damages WeBill’s technical infrastructure or any part thereof;
7.6.2. mpedes, impairs or precludes WeBill from being able to provide the Service(s) in a reasonable and business-like manner; or
7.6.3. constitutes an abuse or malicious misuse of the Service(s).

WeBill reserves the right, without prejudice to any other rights or remedies available to it under these Terms or in law, to charge the Licensee the amount necessary to cover any reasonable expenditure incurred in order to remedy the situation, to the extent that such remedial action was necessitated by Licensee’s breach of the provisions of this Clause 7.6.

7.7. The Licensee hereby grants WeBill and, where applicable, its Third Party Contractors, a worldwide perpetual, irrevocable royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Licensee or Authorised Users in relation to the operation of the Services

7.8. The Licensee hereby indemnifies WeBill and hold it harmless in respect of any and all losses, damages, costs or expenses resulting from or relating to any breach of the warranties set out in this Clause 7 and/or any third- party claim or allegation arising out of or relating to the use of the Service, and which relates to any act or omission of the Licensee which is, or if substantiated would be, a breach of this Clause 7.

8. CHARGES AND PAYMENT TERMS 

8.1. Unless otherwise agreed by WeBill, the Licensee shall be liable for and shall pay the Charges in accordance with this Clause 8.

8.2. WeBill shall be entitled to amend the Charges on twenty (20) Business Days’ notice to Licensee, such notice to take effect at the expiry of the notice period as aforesaid.

8.3. Charges shall, in respect of each Service, accrue from the effective date of the relevant Service Utilisation and will be invoiced by WeBill monthly in arrears. All monthly Services provided on a fixed-fee basis that are provided for part of a month will be charged on a pro-rated basis. All Services provided and charged on a usage basis, will be charged based on actual measured usage.

8.4. Each invoice for Charges shall be due and payable on the date of issue of the invoice, unless otherwise stipulated on the invoice.

8.5. WeBill shall be entitled to charge interest on any overdue amounts from the due date of payment until the date of payment in full, at an annual rate of two (2) percent above the base lending rate from time to time of WeBill’s bankers from time to time.

8.6. All Charges or other sums which may from time to time be due, owing or incurred to WeBill are exclusive of value-added tax and any similar sales tax, levy or duty, or other applicable tax, all of which shall be payable by the Licensee and invoiced by WeBill at the then prevailing rate. In respect of withholding tax, Licensee agrees to pay such additional amounts as may be necessary, such that WeBill receives the amount that it would have received had no withholding tax been imposed.

8.7. In the event that the Licensee elects to make payment of the Charges by means of credit card, debit order, or any other similar available payment method, and subject always to WeBill’s acceptance of such elected payment method, the following terms shall apply:

8.7.1. in respect of credit card payments:

8.7.1.1. the Licensee’s acceptance of these Terms, activation of an Account and access and/or use of the Services constitute continued authority for the issuer of the card(s) to immediately debit the Licensee with the relevant Charges, inclusive of all costs and charges of whatsoever nature, relating to such Services, as and when such Charges become due; and
8.7.1.2. the Licensee warrants that all information relating to the card details provided to WeBill is true and correct, and that the Licensee is duly authorised to use such card and provide such card details for the purposes of making payment of the applicable Charges.

8.7.2. in respect of payment by any other similar available payment method not specifically catered for in this Clause 8, the Licensee shall comply with all such directions, policies and procedures made available by WeBill from time to time for such purpose.

8.7.3. WeBill shall be entitled to levy a reasonable administration charge, and the Licensee agrees to pay such a charge in the event that any form of payment is returned unpaid from the account or credit card nominated by the Licensee. In addition to such charge, WeBill shall be entitled to recover from the Licensee all costs incurred as a result of any form of payment being returned unpaid as foresaid, which costs may be included in any subsequent invoice rendered by WeBill to Licensee, and the Licensee agrees to pay such costs to WeBill on the payment terms of the relevant invoice. Such costs may include, but shall not be limited to, banking fees and charges, and facilitation and administration charges charged by the relevant payment provider; and

8.7.4. the Licensee indemnifies WeBill in respect of any and all losses, damages, costs and expenses arising from or in connection with a breach of this Clause 8.

9. USE RIGHTS

9.1. During the term of an open or active Account, and in consideration for payment of the applicable Charges, WeBill grants or will procure for Licensee a limited, revocable, non-transferable, non-exclusive licence to access and use the Services, subject to the terms of this Clause 9.

9.2. Licensee hereby:

9.2.1. accepts the licence granted to it in terms of Clause 9.1;
9.2.2. acknowledges that it will only use the Services in accordance with these Terms, the applicable EULA, Specific Terms, Policies and the Documentation;
9.2.3. is authorised to use the Services only for its own business purposes; and
9.2.4. acknowledges that it obtains no rights of ownership of the Services or any part thereof whatsoever.

9.3. Licensee shall not:

9.3.1. except to the extent as may be permitted by law, modify, translate or create derivative works based on the Services, nor reverse assemble, decompile or reverse engineer the Services, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the Services or any files contained in or generated by the Services, nor shall it permit, whether directly or indirectly, any third party to do so;
9.3.2. merge or combine the whole or any part of the Services or any part thereof with any third-party software or documentation without the prior written consent of WeBill;
9.3.3. grant any third party, besides its Authorised Users, if applicable, direct access to the Services, including, without limitation by way of lease, download, as an application or bureau service provider or any other method. For the avoidance of doubt, if Licensee allows Authorised Users to use the Services, Licensee shall be responsible for ensuring that such Authorised Users’ access to and use of the Services complies with the terms of these Terms, and shall at all times remain solely liable for the acts and omissions of such Authorised Users as if they were the acts and omissions of Licensee;
9.3.4. lend or transfer the Services or any part thereof to any third party;
9.3.5. sub-license or otherwise transfer the use of the Services, whether in whole or in part, to any third party; or
9.3.6. remove or suppress any proprietary notices on the Services; or
9.3.7. share its Authorised User’s password(s) with any other individual and undertakes to notify WeBill promptly of any unauthorised access or use of the Services or any content available through the Services. The Licensee shall only reassign an Authorised User identification to a new individual when replacing one who no longer requires ongoing use of the Services.

9.4. Additional restrictions may apply to certain Software, files, programs or data supplied by third parties or embedded in Software. Such restrictions will be set out in the instructions or release notes and/or in the form of the Specific Terms and/or Documentation or an end user licence terms provided and/or made available with such material, and are incorporated herein by reference.

9.5. WeBill reserves the right forthwith to suspend or terminate the provision of Services (either in whole or in part) to any Authorised User in the event of a default or breach by such Authorised User of the terms of this Clause 9, or if at any time the Authorised User ceases to be an Authorised User as defined.

10. LIABILITY

10.1. Notwithstanding anything else in these Terms, WeBill’s total liability to the other in contract, delict (including negligence or breach of statutory duty) or otherwise arising in connection with these Terms, shall be limited to an amount equal to the total Charges already paid by Licensee to WeBill in respect of the Service(s) in respect of which such claim arose for the period 3 (three) months preceding the claim. For the avoidance of doubt, for the purposes of this Clause 10.1, the maximum amount shall be an aggregate amount for all claims arising out of these Terms in respect of the relevant Service.

10.2. Notwithstanding anything else in these Terms, neither Party shall in any event be liable to the other for indirect or consequential losses, or otherwise for harm to business, loss of revenues, loss of anticipated savings or lost profits, whether or not reasonably foreseeable at the time when these Terms were entered into.

10.3. The Licensee acknowledges that WeBill is unable to exercise editorial or other control over any content, including Licensee Data, placed on or accessible through the Licensee’s use of the Services and WeBill shall have no liability as to the quality, content or accuracy of information received through or as a result of the use of the Services.

10.4. Notwithstanding anything to the contrary contained in these Terms, WeBill shall not be liable to Licensee for any failure, delay, malfunction or non-performance of the Services, or for any loss, liability, damage or expense of any nature whatsoever and howsoever arising, directly or indirectly relating to or resulting from:

10.4.1. services, hardware, or software provided by or on behalf of Licensee (including the Licensee Equipment) which are not according to WeBill’s minimum or recommended requirements as published or notified by WeBill to Licensee from time to time;
10.4.2. any of the information provided by Licensee under or pursuant to these Terms being false or inaccurate;
10.4.3. Licensee’s failure to adhere to any required configurations or reasonable guidelines or advice provided by WeBill in respect of the use of or modification of a Service, or to follow the Policies or directions set out in the Documentation;
10.4.4. any unauthorised access to and/or use of the Services (or part thereof) as a result of any act or omission, including negligence, of the Licensee or its Authorised User(s);
10.4.5. any unpaid or suspended Service(s);
10.4.6. Licensee’s or its Authorised Users’ failure to perform, or delay in performing its obligations in terms of these Terms;
10.4.7. circumstances that constitute a Force Majeure Event;
10.4.8. failure or unreasonable delay by Licensee to report faults/problems to WeBill; or
10.4.9. any combination of the Services with any Licensee Data or other services, software, hardware or other materials not provided by WeBill, or any alteration or modification to the Services in contravention of these Terms.

11. CUSTOMER DATA AND PRIVACY

11.1. The Licensee acknowledges that it has read the WeBill Privacy Policy and that the terms of this Clause 11 apply in addition to the terms of such and any other WeBill Policy.

11.2. The Licensee acknowledges that WeBill or its agents will, by virtue of the provision of Services, come into possession of Licensee Data. Ownership in all Licensee Data whether under its control or not, shall continue to vest in Licensee and WeBill shall not obtain any proprietary rights in Licensee Data. Licensee grants to WeBill (and its Third Party Contractors as necessary) a limited, non-exclusive, royalty free licence to use, reproduce and modify any Licensee Data strictly for the purposes of providing the Services or as otherwise directed by Licensee.

11.3. The Licensee warrants that:

 

11.3.1. it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Licensee Data as described in this Clause 11;
11.3.2. it shall, for the duration of these Terms, have sole responsibility for the accuracy, quality, integrity, legality and reliability of the Licensee Data and of the means by which it acquired Licensee Data, and will ensure that data and processing instructions given to WeBill comply with all Applicable Laws; and
11.3.3. it shall comply with Applicable Law and related regulations in collecting, compiling, storing accessing and using Licensee Data in connection with the Services.

11.4. WeBill and Licensee are each responsible for complying with their respective obligations under Applicable Laws governing Licensee Data, and each Party shall take reasonable precautions (having regard to the nature of their obligations under these Terms), to preserve the integrity of Licensee Data and to prevent any unauthorised access, corruption or loss of Licensee Data. Without derogating from the generality of the foregoing, WeBill shall implement appropriate technical and organisational measures to protect Licensee Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against other unlawful forms of processing, all as set out in its Policies. The Licensee acknowledges that it has the right to access, at Licensee’s cost, Licensee Data upon written notice and have any agreed errors in such Licensee Data rectified.

11.5. The Licensee acknowledges and agrees that WeBill and its agents may, and by entering into these Terms Licensee expressly authorises WeBill and its agents to, use, process and/or transfer Licensee Data (including intra-group transfers, transfers across a country border and transfers to entities in countries that do not provide statutory protections for personal information):

11.5.1. in connection with the provision of Services and for the purpose of complying with WeBill’s obligations under these Terms;
11.5.2. to incorporate Licensee Data into databases controlled by WeBill for the purpose of administration, provisioning, billing and reconciliation, verification of Licensee identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and customer analysis and reporting, market and customer use analysis, and
11.5.3. to communicate to the Licensee by voice, letter, fax or email regarding products and services of WeBill or its Affiliates.

11.6. Licensee, as the controller of Licensee Data, is solely responsible for ensuring that no Licensee Data provided to WeBill shall be in violation of any Applicable Law, and that the subsequent transfer of such Licensee Data across a country border as set out in clause 11.5 shall not, as a result of the content, nature, state and/or form of such Licensee Data, be rendered, determined or otherwise deemed to be unlawful or non-compliant under the applicable privacy and protection of personal information laws.

11.7. The Licensee may withdraw consent for such use, processing or transfer of Licensee Data as set out above, unless it is required to (i) provision, manage, account and bill for the Services; (ii) carry out fraud detection; or (iii) comply with any Applicable Law or court or other public authority order, by sending written notice to WeBill in accordance with the prescribed form, available from WeBill on request.

11.8. WeBill shall, after the period referred to in such prescribed form, destroy and/or delete the Licensee Data in its possession and/or under its control, or, if applicable, de-identify any personal information therein contained in a manner that prevents its reconstruction in an intelligible form, unless and to the extent that:

11.8.1. WeBill is otherwise required to retain same in connection with these Terms; and
11.8.2. Licensee has consented to the retention of such Licensee Data by WeBill.

11.9. Each Party hereby indemnifies and holds the other harmless from any claim, damages, costs penalty or fine as a result of such Party failing to comply with its obligations under this Clause 11.

12. INTELLECTUAL PROPERTY

12.1. The Licensee acknowledges that:

12.1.1. WeBill has created, acquired or otherwise obtained rights in the WeBill IP and, notwithstanding anything contained in these Terms, WeBill will own all right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the WeBill IP; and
12.1.2. without limitation to the foregoing, Licensee shall not be entitled to use the name, trademarks, trade names or other proprietary identifying marks or symbols of WeBill, WeBill Affiliates or their Third Party Contractors, as applicable, without the prior written consent of WeBill, which consent can be withheld and/or withdrawn at any time and for any reason whatsoever.

12.2. Without limiting the generality of the foregoing, all right, title and ownership of any code, forms, algorithms, methodologies, frameworks or materials developed by or for WeBill or Licensee independently and outside of these Terms and provided during the course of these Terms (“Existing Material”) shall remain the sole property of the Party providing the Existing Material.

12.3. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to any Deliverables shall, unless expressly agreed to the contrary in the appropriate Service Order, vest in WeBill.

12.4. To the extent that WeBill utilises any WeBill IP in connection with WeBill’s performance under these Terms, the WeBill IP shall remain the property of WeBill and Licensee shall acquire no right or interest therein.

12.5. WeBill will defend Licensee against any claims made by an unaffiliated third party that any Service infringes its patent, design, copyright or trade mark and will pay the amount of any resulting adverse final judgment (or settlement to which WeBill consents). WeBill will reimburse Licensee with all costs reasonably incurred by Licensee in connection with assisting WeBill with the defence of the action. Licensee shall promptly notify WeBill of the claim in writing and WeBill shall have sole control over its defence or settlement.

12.6. Should any third party succeed in its claim for the infringement of any intellectual property rights, WeBill shall, at WeBill’s discretion and within thirty (30) calendar days of the infringing item having been found to so infringe:

12.6.1. obtain for Licensee the right to continue using the infringing item or the parts which constitute the infringement;
12.6.2. replace the infringing item or the parts which constitute the infringement with another product which does not infringe and which in all respects operates substantially in accordance with its specifications;
12.6.3. alter the infringing item in a way as to render it non infringing while still in all respects operating substantially in accordance with its specifications; or
12.6.4. withdraw the infringing item and terminate the applicable Service Order and, if applicable, refund to Licensee all Charges which Licensee has already paid to WeBill in respect of the period calculated from the date on which the claim arose until 12 (twelve) months thereafter.

12.7. WeBill shall not be liable for any claim which arises out of third party goods or services selected by Licensee and which are procured by Licensee from third parties.

12.8. The Licensee warrants that any domain name registered or administered by it or on its behalf will not contravene the trademark or other intellectual property rights of any third party and that it shall comply with the rules and procedures of the applicable domain name authorities, registries and registrars.The Licensee shall indemnify WeBill in respect of any and all losses, damages, costs and expenses arising from or in connection with breach of this Clause 12.8.

12.9. If applicable, Internet Protocol (IP) addresses assigned to the Licensee by WeBill in connection with a Service shall be used solely in connection with such Service. If such Service is discontinued for any reason (including termination of these Terms or the Service), the Licensee’s right to use the IP addresses shall immediately cease and the IP addresses shall be returned immediately to WeBill. Any breach of this Clause 12.9shall be a material breach of these Terms.

12.10. If the Licensee does not move the domain name(s) registered by WeBill for and on behalf of Licensee to another service provider within one month after termination of these Terms and/or the relevant Service Order, WeBill reserves the right to terminate such domain name(s) with the applicable domain name authorities, registries and registrars.

13. CONFIDENTIALITY

13.1. Subject to Clause 13.2, WeBill and the Licensee shall:

13.1.1. only use the Confidential Information for the purposes of complying with its obligations under these Terms;
13.1.2. only make the Confidential Information available to those of its personnel who are actively involved in the execution of its obligations under these Terms and then only on a “need to know” basis;
13.1.3. initiate internal security procedures reasonably acceptable to the disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those personnel who need to be given access to Confidential Information, its secret and confidential nature; and
13.1.4. subject to the right to make the Confidential Information available to its personnel under Clause 13.1.2, not at any time use any Confidential Information of the disclosing Party or directly or indirectly disclose any Confidential Information of the disclosing Party to third parties.

13.2. The provisions of Clause 13.1 shall not apply to any Confidential Information which:

13.2.1. is in or comes into the public domain other than by breach of this Clause 13;
13.2.2. is or has been independently generated by the recipient Party; or
13.2.3. is properly disclosed pursuant to a separate written consent or a statutory obligation, the order of a court of competent jurisdiction or the requirement of a competent regulatory body, in which case the Party (“Receiving Party”) compelled to disclose the confidential information of the other Party (“Disclosing Party”), will give the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

13.3. On termination or expiry of a Service Order, the Parties will deliver to each other in the form it was received or, at the other Party’s option, destroy all originals and copies of Confidential Information in their possession which are no longer required for the purposes of any other Service Order.

13.4. Each Party hereby indemnifies the other Party against any loss or damage which such Party may suffer as a result of a breach of this Clause 13 by the indemnifying Party or its personnel.

13.5. This Clause 13 is severable from the remainder of these Terms and shall remain valid and binding on the Parties, notwithstanding any termination, for a period of five (5) years after the effective date of termination.

14. BREACH AND TERMINATION

14.1. Either Party may terminate/delete an Account:

14.1.1. iimmediately by notice if the other Party has committed a material breach which is incapable of remedy;
14.1.2. immediately by notice if the other Party has committed a material breach capable of remedy, but which it fails to remedy within ten (10) Business Days of having been notified of such breach;
14.1.3. immediately by notice if a Force Majeure Event subsists for a continuous period exceeding three (3) months;
14.1.4. for any reason whatsoever on at least 1 (one) calendar month’s prior written notice to the other;
14.1.5. if the other Party undergoes business rescue proceedings or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other becomes subject to an administration order or enters into any voluntary arrangement with its creditors or ceases or threatens to cease to carry on business, or undergoes or is subject to any analogous acts or proceedings under any foreign law;
14.1.6. where, after registration of the Account, no Services have been provided under these Terms for a continuous period exceeding three (3) months.

14.2. WeBill may terminate these Terms immediately by notice if a suspension of a Service pursuant to Clauses 6.1.4, 6.1.5, 6.1.6 or 6.1.7 has continued for a period of at least two (2) consecutive months.

14.3. Notwithstanding anything herein to the contrary, neither Party shall be liable to the other for any delay or failure in performance of any part of these Terms (other than for payment obligations set out in Clause 8) to the extent such delay or failure is attributable to a Force Majeure Event. Subject to Clauses 14.1, any such delay or failure shall suspend these Terms until the Force Majeure Event ceases.

14.4. If WeBill has reasonable grounds to consider that there has been a violation of Clause 7.5, WeBill may notify the Licensee and require it to remedy the violation:

14.4.1. immediately, in the event of an incident involving a violation of public law or regulation or an imminent threat to the Services and/or WeBill’s infrastructure; or
14.4.2. within forty-eight (48) hours, in all other cases.

If the Licensee fails to notify WeBill that such a remedy has been effected in accordance with this Clause 14.4 (subject to such remedy actually being effected) or if WeBill reasonably determines that the violation is continuing or is likely to occur again, WeBill may terminate these Terms (or relevant Service) immediately upon notice to the Licensee.

15. CONSEQUENCES OF TERMINATION

15.1. Without prejudice to accrued rights or obligations, upon termination of these Terms:

15.1.1. aall Services shall terminate immediately;
15.1.2. Licensee’s Account shall be terminated and deleted;
15.1.3. all the Licensee rights under these Terms shall immediately terminate;
15.1.4. notwithstanding the provisions of Clause 8, all accrued Charges not yet invoiced shall become due and shall be paid by the Licensee immediately on receipt of an invoice; and
15.1.5. each Party shall promptly return or make available to the other Party all copies of the other Party’s Confidential Information in the form that it was received and, if requested, verify to the other Party that it has done so.

15.2. Notwithstanding the provisions of clause 15.1.5 above, and provided that Licensee has made payment of all outstanding Charges to WeBill in full, WeBill shall, for a period of 30 (thirty) days following deletion or termination of an Account or these Terms, make available to Licensee all Licensee Data in its possession and/or under its control, in such format and by such means as determined by WeBill. For the avoidance of doubt, if Licensee fails to make payment as foresaid, WeBill shall be entitled to, and Licensee hereby consents that WeBill may, retain all such Licensee Data until such time as payment has been made in full. After receipt of payment as foresaid, WeBill shall grant Licensee access to such Licensee Data for a 30 (thirty) day period in such format and by such means as determined by WeBill.

15.3. After expiry of the 30 (thirty) day period referred to in Clause 15.2, WeBill shall, and Licensee hereby consents that WeBill may, destroy and/or delete all such Licensee Data, or, if applicable, de-identify any personal information therein contained in a manner that prevents its reconstruction in an intelligible form, unless and to the extent that WeBill is otherwise required to retain same in connection with these Terms, or Licensee has consented to the retention of such Licensee Data by WeBill.

15.4. Notwithstanding termination of these Terms, any clause which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.

16. DISPUTE RESOLUTION

16.1. In the event of a dispute concerning these Terms, each Party shall promptly bring the dispute to the attention of a director or similar person in a management position of such Party, and such Parties shall use their best endeavours to resolve such a dispute.

16.2. If the Licensee, acting in good faith, wishes to dispute any invoice or part of an invoice falling due in accordance with Clause 8, the Licensee shall, before the invoice is payable, deliver a notice in writing to WeBill setting out the nature of its dispute, including: (i) date and number of disputed invoice; (ii) amount in dispute; (iii) reason for dispute; and (iv) supporting documentation, in as far as such documentation is available. Notwithstanding the foregoing, Licensee shall not be entitled to withhold any undisputed part of a disputed invoice, the intention being that the full amount of the invoice shall be paid by the Licensee in accordance with Clause 8.

16.3. The Parties shall use all reasonable endeavours to resolve such payment disputes as soon as is reasonably practicable.

17. NOTICES

17.1. Except as otherwise expressly provided for herein, any notice required or authorised to be given under these Terms shall be in writing and delivered to the following addresses:

17.1.1. WeBill: such addresses and/or numbers provided by WeBill for such purpose in the Service Order, or as otherwise notified by WeBill from time to time

17.1.2. Licensee:

17.1.2.1. if these Terms has been entered into in accordance with Clause 2.1.1, at such address and/or number indicated by Licensee on the relevant Service Order; or
17.1.2.2. if these Terms has been entered into in accordance with Clause 2.1.4, at such address and/or number provided by Licensee upon registration for, purchase of and/or request for Services, whichever as the case may be.

17.2. Each Party may by giving written notice to the other Party, change the addresses and numbers set out above to any other address and number, provided that the change shall only take effect fourteen (14) calendar days after delivery of the written notice.

17.3. All notices provided in terms of this Clause 17 shall be delivered to the addresses listed above by prepaid registered post, by facsimile transmission, by hand and/or by e-mail. Notices shall be deemed to have been served, in respect of:

17.3.1. prepaid registered post, fourteen (14) days after such posting;
17.3.2. delivery by hand, on the date of delivery to a responsible person during business hours; and
17.3.3. e-mail, on the first (1st) Business Day following the date of successful delivery to the recipient, provided that, if a notice or communication is actually received by a Party, adequate notice or communication shall have been given.

17.4. Notwithstanding the aforementioned, technical and service related notices relating to the Services shall be sufficient if transmitted to the Licensee’s designated point of contact by e-mail and shall be deemed to have been served on the transmission date of such e-mail, if such email does not return.

18. GOVERNING LAW AND JURISDICTION

These Terms shall be governed and construed in accordance with the laws of the Republic of South Africa, and WeBill and the Licensee irrevocably agree to the jurisdiction of the South African courts, except that WeBill may, at its option, institute any claim it may have in the country where the Licensee is located or where the Services are being provided and/or received. Licensee and WeBill agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.

19. CONSUMER PROTECTION ACT 

19.1. In terms of the provisions of the Consumer Protection Act No. 68 of 2008 (“CPA”), a transaction as contemplated by these Terms may be subject to the CPA in the event that the Licensee’s asset value or annual turnover, as defined in the CPA and determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time, falls below a certain threshold.

19.2. In order to ascertain whether Licensee, and the specific transaction referred to above, is subject to the CPA, Licensee may be required to provide WeBill with certain information regarding its asset value and/or annual turnover. Licensee hereby warrants that any statement made to WeBill in this regard shall be true and accurate, and shall provide WeBill, upon request, with financial statements as proof thereof.

19.3. In the event that Licensee, for any reason whatsoever, misrepresents the abovementioned information to WeBill in a manner that results in WeBill erroneously regarding said transaction as being subject to the CPA, then all provisions of these Terms that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Licensee shall be liable for any damage sustained by WeBill as a result of such misrepresentation.

19.4. To the extent that the provisions of the CPA are applicable to these Terms, in the event that the Licensee alleges that there is a defect in the quality of the Services, WeBill’s exclusive obligation, and Licensee’s only remedy against WeBill, is to remedy the defect in the quality of the Services performed.

20. ASSIGNMENT

Subject to Clause 3.3, neither Party may assign, charge, transfer or otherwise dispose of these Terms, any Service Order, or any rights or obligations therein in whole or in part, without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that WeBill may, without requiring the Licensee’s consent, assign any and all of its rights and obligations hereunder: (i) to any WeBill Affiliate; (ii) to a third party pursuant to any sale or transfer of substantially all the assets or business of WeBill or a WeBill Affiliate; or (iii) to a third party pursuant to any financing, merger, or reorganisation of WeBill or a WeBill Affiliate.

21. ENTIRE AGREEMENT

These Terms (read with all applicable Service Orders) sets out the entire and exclusive agreement between WeBill and the Licensee superseding all prior or contemporaneous representations, agreements or understandings concerning the subject-matter addressed herein. No oral or written explanation or oral or written information provided shall alter the interpretation of these Terms. The Licensee confirms that, in entering into these Terms and/or a Service Order, it has not relied on any representation except as set out herein and the Licensee agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of these Terms, excluding any fraudulent misrepresentation.

22. GENERAL

22.1. If any provision of these Terms, including any limitation, is held by a court or any governmental agency or authority to be invalid, void or unenforceable, the remainder of these Terms shall nevertheless remain legal, valid, and enforceable, provided the severance does not alter the nature of these Terms between the Parties.

22.2. Failure or delay by either Party to exercise or enforce any right or benefit conferred by these Terms, including WeBill’s right to deliver invoices in accordance with Clause 8, shall not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.

22.3. Nothing in these Terms and no action taken by the Parties pursuant to these Terms shall constitute or be deemed to constitute between the Parties a partnership, agency, association, joint venture or other co-operative entity. The Parties shall at all times owe each other a duty of good faith and shall, in all dealings with each other and in respect of the Services act according to such standard.

22.4. Except as otherwise contemplated by these Terms or the Documentation, nothing herein will create or confer any rights or other benefits in favour of any person other than the Parties.

22.5. If these Terms has been entered into in accordance with clause 2.1.1, then these Terms (or any part hereof), including the Service Orders, shall be modified only by the written agreement of the Parties. In all other cases, WeBill reserves the right to change these Terms at any time, in which event WeBill will notify the Licensee by prominently posting a notice of such changes on the applicable websites, or by sending Licensee an e-mail.

Introduction

We are committed to protecting your privacy and complying with applicable data protection and privacy laws. This privacy policy tells you about our online collection and use of data when you use our proprietary software applications, mobile applications, products, services, systems and/or platforms (“Solutions“). The terms of this policy apply to the Solutions and this Web site (“Site“) and to the services which we offer through it and are further subject to our Subscription Terms and Conditions, unless different terms are specified in a form or contract provided to you by WeBill (either online or offline).

Please review this privacy policy before using this Site or the Solutions. If you do not agree with this privacy policy, do not use the Site or the Solutions. By using this Site or the Solutions, you (i) understand and agree to be bound by the terms of this policy, and (ii) expressly consent to us collecting, using, storing or otherwise processing your personal information as set out in this policy, for the purposes indicated herein.

This Site and the Solutions are owned and operated by WeBill (Pty) Ltd. (“WeBill“, “us“, “we“, “our“) and may be accessed both in South Africa and abroad. For data protection purposes, WeBill is the controller and, unless otherwise noted, is also the processor of data. You consent to any of your personal information collected by us being retained indefinitely, and agree that it may be stored, processed, accessed, and used in jurisdictions whose privacy laws may be different and less protective than those of your home jurisdiction.

Core Principles

Your privacy is important to us, so we’ll strive to protect the information you share with us. To protect your privacy, we follow certain basic principles in accordance with global best practices relating to customer privacy and data protection. Except to the extent provided for in this policy, we won’t sell or give away your name, e-mail address, phone number, billing address, credit card number or any other personal information to anyone without your express consent and we’ll use industry-standard security measures to protect your information from unauthorised users.

Collection of Your Personal Information

When you visit this Site or access or use the Solutions, certain kinds of information, such as the Web site that referred you to us, your IP address, browser type and language, and access times, may be collected automatically as part of the Site or the Solutions’ operation. We may also collect navigational information, including information about the pages you view, the links you click, and other actions taken in connection with the Site or the Solutions.

We may combine your visit and navigational information with personal information that you provide. You may always choose not to provide personal information, but, if you so choose, certain products and services may not be available to you.

Personal information (i.e., any information by which you can be identified and which relates to you as an identifiable individual, such as your name, e-mail address, sex, age, etc.) is collected when you register. Additional personal information (e.g., your credit card details and billing address) may be collected when you order from us, to process transactions or to provide you with products or services.

You warrant that: (i) any personal information that you provide to us through the Site or the Solutions shall be and remain complete, accurate and correct, (ii) you will keep us informed of any changes in such personal information, and (iii) you will provide us with any reasonable assistance that we may require in order to enable us to comply with our obligations under applicable privacy laws, and you indemnify us against and hold us harmless from any claim, damages, penalty or fine as a result of a breach of any of these warranties.

Use of Your Personal Information

We collect and use your personal information to operate and improve the Site and the Solutions, to process your transactions and provide the services and information you select, to better understand our customers, to provide better products and services, and to assist us with administration, such as with troubleshooting any problems, detecting fraud, resolving disputes, and for any purposes deemed necessary or required by WeBill to enforce the Subscription Terms and Conditions and other terms or conditions applicable to any portion of the Site or your access to or use of the Solutions.

We may also use your contact information to enable us to communicate with you. We may send transaction-related communications such as welcome letters, billing reminders, and purchase confirmations. We may also send you newsletters or marketing communications to inform you of new products or services or other information that may be of interest. If you do not wish to receive marketing communications, you should follow the “unsubscribe” instructions included within each communication. Please keep in mind that, if you choose not to receive marketing communications, you will continue to receive transactional or account communications (e.g., confirmation e-mails and account balance statements), where applicable.

Personal information collected by us may be stored and processed in South Africa or any other country in which we or our service providers or agents maintain facilities, and by using this Site, the Solutions and our services, you consent to any such transfer of information outside of your country.

Notice to European Users

Please note that the information you enter on the Site or provide to us, whether through the Solutions or otherwise, may be transferred outside of the European Economic Area, for purposes of processing by WeBill, located in Johannesburg, South Africa, or our authorised partners, located worldwide, including countries which may not offer an equivalent level of protection to that required in the European Union, in order to provide this Site and its services to you. Article 49 of the European Union’s General Data Protection Regulation allows for transfer of personal data from the European Union to a third country if the individual has explicitly consented to the transfer of personal information, regardless of the third country’s level of protection. By agreeing to this privacy policy, you consent to the transfer of all such information to South Africa and other countries which may not offer an equivalent level of protection to that required in the European Union and to the processing of that information as described in this privacy policy.

If you would like to exercise any of your data protection rights (including the right to have your personal information deleted), please contact us using the “Contact Information” section below.

Sharing of Your Personal Information

Except as disclosed in this privacy policy, we do not share your personal information with any outside parties.

On occasion, we may offer, in conjunction with third parties, certain services that may require you (or WeBill) to share your personal information with that third party as a condition for providing that service. While we will treat any information we receive in accordance with this privacy policy, WeBill will not be responsible for the information submitted by you to that third party and we remind you to review the applicable rules and any third party’s applicable privacy policies separately before participating in such service.

You expressly consent to us sharing your personal information with service providers who perform services on our behalf. Specifically, we may hire other companies or persons to handle the processing of payments, to provide data storage, to host Web sites, to assist in direct marketing, to conduct audits, etc. Those companies or persons will be permitted to obtain only the personal information they need to provide the service. They are required to maintain the confidentiality of the information and are prohibited from using it for any other purpose.

Information about our users, including personal information, may be disclosed as part of any merger, acquisition, or sale of the company and/or its assets, as well as in the unlikely event of insolvency, bankruptcy, or receivership, in which case personal information would be transferred as one of the business assets of the company. We may notify you of such an occurrence as described in the “Changes to This Privacy Policy” section below.

We reserve the right to disclose your personal information, without notice, if required to do so by law, or in the good-faith belief that such action is reasonably necessary to comply with legal process, respond to claims, or protect the rights, property or safety of our company, employees, users, or the public.

Security of Your Personal Information

Whilst we cannot guarantee the absolute security of your personal information, we take all commercially reasonable measures and precautions to keep it secure and protect it from loss, misuse, unauthorised access or disclosure by following generally accepted security practices, including the use of encryption and logical and physical access control mechanisms, as well as taking reasonable steps to identify all reasonably foreseeable internal and external risks to the personal information in our possession or under our control, establishing and maintaining appropriate safeguards against the risks identified, regularly verifying that the safeguards are effectively implemented, and ensuring that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards. However, we cannot accept any liability whatsoever for any unauthorised access or loss of personal information despite our best endeavours.

Personal Information Preferences

We respect your right to make choices about the use and disclosure of your personal information. If at any time you decide that you do not want to receive marketing communications from us, please let us know by sending an e-mail to privacy@webill.net.

If you choose not to receive marketing communications, please be advised that you may continue to receive transactional or account communications (e.g., confirmation e-mails and account statements), where applicable.

Access to Your Personal Information

You can write to WeBill at any time to obtain details of the personal information we may hold about you at the following address:

Data Protection Manager

WeBill
147 North Reef Road
Bedfordview
Johannesburg
1401
E-Mail: privacy@webill.net

Please quote your name and address and a brief description of the information you want a copy of to enable us more readily to locate your data. We will take all reasonable steps to confirm your identity before providing you with details of any personal information we may hold about you. We may charge a fee to cover the reasonable administration costs involved.

Use of Cookies and Other Technologies

WeBill may use cookies to enable you to sign in to our services and to help personalise your online experience. A cookie is a small text file that is placed on your hard drive. Cookies contain information, including personal information, that can later be read by a Web server in the domain that issued the cookie to you. The information that cookies collect may include the date and time of your visit, your registration information, and your navigational and purchase history.

In some cases, our third-party service providers may use cookies on our Site or Solutions. We have no access to or control over these cookies. This privacy statement covers the use of cookies by WeBill only, and does not cover the use of cookies by third parties.

You have the ability to accept or decline cookies. Most browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies. If you choose to decline cookies, you may not be able to sign in or use other features of our Site, Solutions and services that depend on cookies.

In addition to cookies, we may use other technologies, including single-pixel images on our Site, Solutions and in promotional e-mail messages or newsletters. These tiny electronic images assist us in determining how many users have visited certain pages or opened messages or newsletters. We do not use these images to collect personal information.

Registration Data and Account Credentials

During the registration process, you will provide your identifying particulars and contact information and select a password or be provided with an OTP (one time pin) access code via e-mail or SMS. It is your responsibility to maintain the confidentiality and security of your account credentials, including your password and/or OTP access code, as applicable. Allowing others to access and use your account, password and/or OTP access code can compromise the security of your information. It remains your sole responsibility to ensure that you log out of your account when access is no longer required to the Solutions or the Site. In the event that a JSON Web Token (JWT) is issued, which will result in the Solutions or the Site remaining logged in for the duration of the validity period of the JWT, you will remain solely responsible to ensure that no unauthorised third party accesses or uses the Solutions or Site for the duration said validation period. We disclaim any responsibility or obligation for your decision to provide your account credentials to others, or to allow any third party to access or use the Solutions or Site through any device which is logged on to your account. Access by means of such credentials, and use of the Solutions or Site through any device which is logged on to your account, will, at all times, be deemed made by you, and you will be responsible for any such access.

Interactive Areas

The Site or Solutions may include interactive areas or services, including, without limitation, blogs, discussion forums, chat rooms, bulletin boards, message boards, online hosting or storage services, or other areas or services in which you, registered members/users or third parties create, post or store any information, content, messages, comments, materials or other items on the Site or Solutions (“Interactive Areas“).

If you use an Interactive Area, you should be aware that these areas are open to the public and any personal information you post or provide at registration may be viewable by others and thereby becomes public information. You should exercise caution when deciding to disclose your personal information in Interactive Areas. If you decide to submit any personal information in connection with the Interactive Areas, that information is exempt from this privacy policy and we are not in any way responsible for such information, nor for how others might use that information, including sending you unsolicited messages. Interactive Area postings may be retained indefinitely.

Surveys

From time to time, we may make online surveys available to users of the Site or Solutions. Participation in those surveys is voluntary. Some online surveys may ask participants for personal information, such as an e-mail address, in addition to requesting answers to survey questions. We may use that personal information to contact the participant if necessary, or as otherwise described above. We may make the results of any survey publicly available, although we will not attribute any particular response to you without your permission.

E-Mail Referrals

If you choose to use our e-mail referral service to tell a friend about our products or services, we will ask you for your friend’s name and e-mail address. We will use that information to send your friend a one-time e-mail inviting him or her to visit the Site or access the Solutions and review the product or service you have selected. We may use a third-party provider to administer this function, but any such third-party provider may only use the information submitted to facilitate this one-time email. Neither WeBill nor any third-party provider stores this information after the email is sent.

Minors

We do not intend to offer services to or solicit or collect personal information from anyone under the age of 18. If you are under 18 (or the age of majority in your country), you should not use or enter information on this Site or the Solutions, including, without limitation, any Interactive Areas.

Links

We may link to Web sites that have different privacy policies and practices from those disclosed here. We assume no responsibility for the policies or practices of such linked sites, and encourage you to become acquainted with them prior to use.

Disclaimers

WeBill intends to take commercially reasonable precautions to abide by this privacy policy. Nevertheless, in the event that we do not comply with all terms contained in this privacy policy, you agree, by using this Site or the Solutions and by submitting information to this Site or through the Solutions, that your sole and exclusive remedy against WeBill will be to have us promptly correct the handling of your information in the future to accord with this privacy policy and to notify anyone to whom WeBill directly transferred any information of the correct information or to cease using such information.

To the maximum extent allowed by law, WeBill, its subsidiaries, affiliates, and divisions disclaim any other obligation, liability, or warranty to you for any other action, inaction, omission, or other activity that is not in accordance with this privacy policy.

Under no circumstances shall WeBill, its subsidiaries, affiliates and divisions, or their suppliers or licensors be liable for any direct, special, incidental, indirect, economic, consequential or punitive damages (including, without limitation, loss of data or loss of use damages or lost profits) arising out of or connected with this privacy policy, or the failure of WeBill, its subsidiaries, affiliates and divisions, or their suppliers or licensors to adhere to it, even if WeBill, its subsidiaries, affiliates and divisions, or their suppliers or licensors have been notified of the possibility of any damages. This section shall only apply to the maximum extent permitted by applicable law.

WeBill does not exclude (i) liability for damage to any property or death or personal injury caused by the negligence or wilful misconduct of WeBill, its employees or authorised representatives or (ii) liability for fraud.

Applicable Law and Jurisdiction

This privacy policy is governed by and will be interpreted according to the laws of the Republic of South Africa, and all disputes, claims and other matters in connection with this privacy policy will be determined in accordance with such laws.

Changes to This Privacy Policy

We reserve the right to change the terms of this privacy policy at any time. When we make changes, we will revise the “Last Updated” date at the top of the policy. If there are material changes to this statement or in how we will use your personal information, we will notify you by prominently posting a notice of such changes here or on our home page, or by sending you an e-mail. We encourage you to review this policy whenever you visit our Site or access our Solutions.

Contact Information

If you have questions or concerns regarding this privacy policy, or if, for some reason, you believe WeBill has not adhered to these principles, please contact us by e-mail at privacy@webill.net or by post to 147 North Reef Road, Bedfordview, Ekhuruleni, 1401, South Africa.

PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENCE AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBILL APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE THE WEBILL APPLICATION.

WeBill is the owner of various mobile and web-based applications (each application herein after ‘the Application’ and all the applications hereinafter ‘the Applications’ – the Application and Applications collectively hereinafter ‘the Application/s’) is owned by WeBill Proprietary Limited (“WeBill”). The terms and conditions of this end-user licence agreement (“EULA”) apply to your use of the WeBill Application and do not alter in any way the terms or conditions of any other agreement you may have with WeBill, its agents, licensees, subsidiaries or affiliates (collectively, “us“, “we“, “our”), except that, where the terms of any such agreement conflict with the terms of this EULA, these terms shall prevail to the extent of such conflict. By using the WeBill Application, you represent and warrant that you are over the age of 18 and are lawfully able to accept this EULA. If you are using the WeBill Application on behalf of any entity, you further represent and warrant that you are authorised to accept this EULA on such entity’s behalf, and that such entity agrees to indemnify us for violations of this EULA.

1. Grant of Licence

1.1 Subject to clause 2 below, WeBill hereby grants you a limited, revocable, non-exclusive, non- transferable, non-assignable, non-sublicensable licence to use the WeBill Application on the terms and conditions set forth in this EULA.

1.2 You (the “End User”) –

1.2.1   accept the licence granted to you in terms of clause 1.1;

1.2.2   are authorised to use the WeBill Application only for your own business or personal purposes; and

1.2.3   acknowledge that you obtain no rights of ownership of the WeBill Application whatsoever.

 

 

 

2. Restrictions on Licence

2.1 You shall not –

2.1.1 except to the extent as may be permitted by law, modify, translate or create derivative works based on the WeBill Application, nor reverse assemble, decompile or reverse engineer the WeBill Application, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the WeBill Application or any files contained in or generated by the WeBill Application, nor shall you permit, whether directly or indirectly, any third party to do so;

2.1.2 merge or combine the whole or any part of the WeBill Application or any part thereof with any other software or documentation without the prior written consent of WeBill;

2.1.3 unless explicitly agreed to in writing by WeBill, grant any third party direct access to the WeBill Application;

2.1.4 unless explicitly agreed to in writing by WeBill, use the WeBill Application to provide an application or bureau service to any third party;

2.1.5 lend or transfer the WeBill Application or any part thereof to any third party;

2.1.6 unless explicitly agreed to in writing by WeBill, sub-license or otherwise transfer the use of the WeBill Application, whether in whole or in part, to any third party; or

2.1.7 unless explicitly agreed to in writing by WeBill, remove, delete or obscure any copyright, trademark or other marks or proprietary notices associated with or generated by the WeBill Application.

3. Use of WeBill Application

You represent and warrant that, in respect of your access to and use of the WeBill Application and all matters relating thereto, you will comply with all applicable laws and regulations, including, without limitation, those relating to the Internet, data, electronic communications, privacy, and the transmission of data exported from the Republic of South Africa.

 

4. Intellectual Property Rights

4.1 You acknowledge that the WeBill Application is owned by, and all intellectual property rights therein vest in, WeBill or its respective licensors or third-party content providers and that any unauthorised use thereof is expressly prohibited.

4.2 All elements of the WeBill Application are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.

4.3 Our logos and any other product or service name or slogan contained in the WeBill Application are our registered or unregistered trademarks and those of our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of WeBill or the applicable trademark holder. In addition, the look and feel of the WeBill Application is the service mark, trademark and/or trade dress of WeBill and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the WeBill Application are the property of their respective owners.

4.4 We reserve the right at any time to change or discontinue without notice, any aspect or feature of the WeBill Application.

 

5. Privacy and protection of personal information

5.1. You and WeBill are each responsible for complying with your respective obligations under applicable privacy and protection of personal information laws governing your data.

5.2. WeBill shall at all times comply with the terms and conditions of WeBill’s Privacy Policy (as amended from time to time), in respect of the collection, use and disclosure of your personal information, the terms and conditions of which are incorporated herein by this reference.

5.3. Notwithstanding the foregoing, you remain solely responsible (i) for determining the purposes and means of WeBill’s processing of your data (including that processing will not place you or WeBill in breach of any applicable privacy and protection of personal information laws) and (ii) for ensuring that all information protection principles which establish minimum requirements for the processing of personal information under applicable privacy and protection of personal information laws and all the measures that give effect to such principles are complied with.

 

6. WeBill Warranties

6.1 WeBill warrants in relation to the WeBill Application that –

6.1.1 it is entitled to and has the rights necessary to grant the licence contemplated in this EULA; and

6.1.2 the WeBill Application will substantially comply with its published functional specifications when used in accordance with the terms of this EULA and with any installation and operating instructions, user and support manuals and technical literature pertaining to the WeBill Application as supplied by WeBill. Where features and functionalities are not documented at all or are partially documented, the End User assumes full responsibility for the incorrect use of said functionality.

6.2 Save for the above warranties, WeBill, is provided “as is” and we and our directors, members, employees, content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose. We will not be liable for any damages of any kind arising from the use of the WeBill Application or the unavailability of the same, including, but not limited to, lost profits and direct, indirect, incidental, punitive, special and consequential damages. The functions embodied on or in the WeBill Application are not warranted to be uninterrupted or without error. You, not us, assume the entire cost of all necessary servicing, repair or correction due to your use of the WeBill Application. We make no warranty that the WeBill Application is free from infection by viruses or anything else that has contaminating or destructive properties.

 

7. Disclaimer

7.1 The App Content and the User Content are provided “as is” and we and our directors, members, employees, content providers, agents and affiliates exclude, to the fullest extent permitted by applicable law, any warranty, express or implied, including, without limitation, any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose. We will not be liable for any damages of any kind arising from the use of the App Content or the User Content, or the unavailability of the same, including, but not limited to, business interruption, loss of business information, loss of data, loss of profits and any direct, indirect, incidental, punitive, special or consequential damages.

7.2 We use reasonable efforts to ensure the accuracy, correctness and reliability of the App Content, but we make no representations or warranties as to the App Content’s accuracy, adequacy, correctness, quality or reliability. You bear all risks from any use or results of using any information, the App Content or the Services and are solely responsible for validating the integrity of any information received from the WeBill Application, the App Content and the Services.

7.3 We have no direct control over User Content, make no representations or warranties whatsoever in respect thereof and expressly disclaim any liability in connection therewith.

7.4 For the purposes hereof:

7.4.1 “App Content” shall refer to all of the content featured or displayed on the WeBill Application, including, but not limited to information in any form, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof; and

7.4.2 “User Content” shall, to the extent applicable, mean any message, comment, data, document, file, information, text, music, sound, photos, graphics, code or other material that an End User posts, uploads, downloads, transmits, distributes, stores, creates or otherwise publishes through or on the WeBill Application.

 

8. Limitation of Liability

8.1 To the fullest the extent permitted by applicable law, WeBill shall not be liable for any delay, failure, breakdown, damage, loss, costs, claim, penalty, fine or expense arising from –

8.1.1  your use of the WeBill Application otherwise than in accordance with the terms of this EULA;

8.1.2  your effecting any changes, modifications or upgrades to the WeBill Application without WeBill’s prior written consent;

8.1.3  operator error on the part of you or your personnel, or any fault in any hardware or third-party software supplied by WeBill or software supplied to or obtained by Customer from any entity other than WeBill;

8.1.4  the intentional or negligent act or omission of any person who is not a member of WeBill’s personnel;

8.1.5  your negligence;

8.1.6  the actions or omissions of any telecommunications authority or a supplier of telecommunications services;

8.1.7  the actions or omissions of any upstream data providers or suppliers of network services; or

8.1.8  any other cause beyond our reasonable control, including the failure or fluctuation of electrical supplies, accidents or natural disasters.

 

 

8.2 In no event shall our aggregate liability, whether in contract, warranty, delict (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the WeBill Application exceed any compensation you pay, if any, for access to or use of the WeBill Application.

 

9. Indemnification

To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold us harmless, as well as our subsidiaries, affiliates, licensors, employees, agents, sponsors, third-party information providers and independent contractors, against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your conduct, your breach or alleged breach of this EULA, your unauthorised use of the WeBill Application, or your violation of any rights of another.

 

10. Accuracy of Information

The information provided on the WeBill Application is believed by it to be generally accurate and correct. However, in no event shall WeBill, its directors, officers, agents or employees be liable for errors, omissions or inaccuracies of any kind in the information and you will be responsible for verifying the accuracy and correctness of the Information. While WeBill will take every precaution to avoid the uploading of corrupt or faulty data , WeBill is not responsible for any inaccuracy of data, reports or displays or malfunction resulting for the End User uploading corrupt data to his account. No warranty of any kind is given regarding the information, the same being provided as is, where is and with all faults and any guarantees or warranties, express or implied, are excluded.

 

11. Effect of Termination

On termination, cancellation or expiry of this EULA for any reason, the licence granted to you hereunder shall automatically and immediately terminate. [Provided that the End User has settled all outstanding amount owed to WeBill, on termination the End User’s data will be available for the End User to download from WeBill for a period of 30 days from date of termination; in the event the End User requires the data after a period of 30 days, WeBill will make that data available to the End User for a fee determined by the volume of the data and the period from date of termination. In any event, End User data for terminated Clients will be available for a period of 5 years at least although the End User can request that the data be deleted and WeBill will delete the data unless there are legal constraints]

 

12. Dispute Resolution and Governing Law

12.1 This EULA will be governed, construed and take effect in all respects in accordance with the laws of the Republic of South Africa.

12.2 Any dispute relating in any way to your use of the WeBill Application shall be submitted to confidential arbitration to be held in Johannesburg under the rules of the Arbitration Foundation of Southern Africa (or its successor in title), to which arbitration you hereby consent; except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek interdictory, injunctive or other appropriate relief in any applicable court in the Republic of South the Africa, and you consent to exclusive jurisdiction and venue of such courts. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this EULA shall be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise.

13. Miscellaneous Provisions

13.1 This EULA (as varied from time to time in accordance with clause 13 below) constitutes the sole record of the agreement between you and us in relation to your use of the WeBill Application. Neither you nor us shall be bound by any express, tacit or implied representation, warranty, promise or the like not recorded herein. Unless otherwise specifically stated, this EULA supersedes and replaces all prior commitments, undertakings or representations, whether written or oral, between you and us in respect of your use of the WeBill Application. Notwithstanding the foregoing, you may be granted access to the WeBill Application by virtue of a separate written agreement with WeBill or its permitted licensees. If this applies to you, this EULA must be read in conjunction with such agreement.

13.2 Failure or neglect by us to enforce at any time any of the provisions of this EULA shall not be construed as a waiver of its rights. Any waiver of any provision of this EULA will be effective only if in writing and signed by us.

13.3 If any clause in this EULA is found to be unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect unless the contrary is explicitly state in the other agreement in writing and is signed in-line on the Agreement by WeBill.

13.4 Any rights not expressly granted herein are reserved.

14. Changes to EULA

WeBill reserves the right to change any of the terms and conditions contained in this EULA at any time and in its sole discretion. When WeBill makes changes, we will revise the “Last Updated” date at the top of this EULA. A copy of the latest EULA will always be available on the official WeBill Web Site.

VALUE-ADDED RESELLER AGREEMENT

between

WEBILL PROPRIETARY LIMITED
(“WeBill”)

Company Registration Number 2016/538436/07
Physical Address 147 Northreef Road, Ekurhuleni
Postal Address 147 North Reef Road, Bedfordview, Ekurhuleni
Telephone Number  
Contact Person Ben Ferreira or Ayal Rosenberg or Asanda Solinjani
Email Address legal@webill.net
Signature(s)
(who warrants that s/he is duly authorised to Sign)
 
Name Ayal Rosenberg Ben Ferreira
Title MD Legal
Date    

and

[INSERT]
(“VAR”)

Company Registration Number  
Physical Address  
Postal Address  
Telephone Number  
Contact Person  
Email Address  
Signature(s)
(who warrants that s/he is duly authorised to Sign)
 
Name    
Title    
Date    

This Agreement consists of (i) this cover sheet, (ii) the attached terms and conditions; and (iii) the schedules and annexures attached to this cover sheet (“Agreement”). By signing this cover sheet the Parties agree to be bound by this Agreement. The Parties shall not be bound prior to signature.

AGREEMENT REFERENCE NUMBER  
EFFECTIVE DATE  

1 INTRODUCTION

WeBill carries on the business of developing, marketing and licensing the Software. The Parties have agreed that, with effect from the Commencement Date, WeBill will appoint the VAR as its value-added reseller (i) for the purposes of marketing the Software to Customers and obtaining licenses for the Software and (ii) for providing the Services to Customers, as applicable, on the terms and conditions set out in this Agreement.

2 DEFINITIONS AND INTERPRETATION

2.1 Definitions. Unless a contrary intention appears, the following expressions shall have the indicated meanings –

2.1.1 “Business Day” means any day other than a Saturday, Sunday or gazetted public holiday in the Republic of South Africa;

2.1.2 “Business Hours” means 08h00 to 17h00 on a Business Day;

2.1.3 “Commencement Date” means the commencement date specified in the VAR Schedule;

2.1.4 “Confidential Information” shall mean information or data, whether disclosed orally or in writing, that is identified as being confidential or proprietary at the time of disclosure or has the necessary quality of confidence about it and includes, without limitation:

2.1.4.1 any information relating to WeBill’s business, business policies, business plans, pricing models, know-how, trade secrets, diagrams, blue prints, flow charts, potential customers, customer lists, sales, sales figures and products and, in respect of WeBill, the WeBill Technology; and

2.1.4.2 technical and mechanical information and computer programs of the disclosing Party;

2.1.5 “Customer” means any person or entity who licences the Software from WeBill as a direct result of the efforts of the VAR and who obtains Services from the VAR in the Territory;

2.1.6 “Effective Date” means the effective date of this Agreement, as stipulated on the cover sheet of this Agreement;

2.1.7 “Fees” means the fees determined in accordance with the scales set out in the VAR Schedule;

2.1.8 “Intellectual Property Rights” means all present and future rights in and to the Software and/or any other WeBill products or any documentation and/or any other items or materials provided to the VAR by WeBill under this Agreement including, but not limited to, all copyrights, patents, trademarks (whether registered or unregistered), as well as other rights may in the future be based thereon, together with all trade secrets, trade names, know-how and other intellectual property rights in all parts of the world;

2.1.9 “Licence Agreement” means the terms and conditions in terms of which a Customer is granted a licence by WeBill to use the Software;

2.1.10 “Party” or “Parties” means WeBill, or the VAR or both of them, as the context requires;

2.1.11 “Personnel” means any director, employee, agent, consultant, contractor or other representatives;

2.1.12 “Service Levels” means the minimum levels of service according to which Services are to be provided as set out in the VAR Schedule and/or WeBill’s Policies. In the event of a conflict between the VAR Schedule and any WeBill Policy, the relevant WeBill Policy will prevail;

2.1.13 “Services” means the implementation and support services and training to be given by the VAR to Customers in respect of the Software at the Service Levels as set out in the VAR Schedule, and as may otherwise be agreed by the Parties from time to time;

2.1.14 “Software” means WeBill’s proprietary software applications which the VAR is permitted to market to and obtain licenses for on behalf of Customers and in respect of which it is permitted to provide the Services, as listed in the VAR Schedule, as amended, updated and enhanced from time to time;

2.1.15 “Territory” means the Territory described in the VAR Schedule;

2.1.16 “Trademarks” means the trademarks, trade names, service marks, logos or other descriptive marks or designs used by WeBill (or its licensors or suppliers) in respect of the Software;

2.1.17 “VAR Portal” means the portal made available to the VAR, on which the VAR is required to register and input certain information as set out in this Agreement;

2.1.18 “VAR Schedule” means the schedule attached hereto as Annexure A;

2.1.19 “WeBill Policies” means any policies, practices, codes of conduct and procedures (as amended from time to time) which may be of application to the WeBill Technology, the Software, and/or its resellers, as the case may be;

2.1.20 “WeBill Technology” means any and all technology that WeBill has created, acquired or otherwise has rights in and may, in connection with the performance of WeBill’s obligations under this Agreement, employ, provide, modify, create or otherwise acquire rights in and includes the Software and any and all concepts; ideas; methods; methodologies; procedures; processes; know-how; techniques; function, process, system and data 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 and routines; and logic, coherence and methods of operation of systems;

2.2 Headings. Headings and sub-headings are inserted for information purposes only and shall not be used in the interpretation of this Agreement;

2.3 References. Unless otherwise stated, references to clauses, sub-clauses, schedules or paragraphs are to be construed as references to clauses, sub-clauses, schedules or paragraphs of this Agreement;

2.4 References to persons. References to persons shall include companies, corporations and partnerships and references to any Party shall, where relevant, be deemed to be references to, or to include, as appropriate, their respective successors or permitted assigns;

2.5 Calculation of days. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next Business Day;

2.6 Contra proferentum excluded. The rule of construction that the Agreement shall be interpreted against the party responsible for the drafting or preparation of the Agreement, shall not apply;

2.7 Figures and numerals. Where figures are referred to in numerals and in words, if there is a conflict between the two, the words shall prevail;

2.8 Expiration or termination. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which expressly provide that they will operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

3 APPOINTMENT OF THE VAR AND RIGHTS

3.1 Appointment. On and subject to the terms and conditions set out in this Agreement, WeBill hereby appoints the VAR as its non-exclusive reseller in the Territory to (i) promote and market the Software on the basis that Customers will licence the Software from WeBill and (ii) provide Services to Customers.

3.2 Licensing. The VAR shall not be entitled to licence the Software to any Customer under any circumstances.

3.3 VAR not to appoint. The VAR may not appoint, authorise or permit any other person, firm, company, partnership, association, agent or other legal entity of any nature whatsoever to promote, market or license the Software or to provide the Services or any other services to Customers, unless the prior written consent of WeBill has been obtained.

3.4 Direct supply. Nothing in this Agreement will be construed as a limitation or restriction on WeBill’s freedom to directly or indirectly market or distribute the Software or any other products or market or perform any other services whatsoever within the Territory by any means whatsoever.

4 DURATION

This Agreement shall commence on the Effective Date and shall continue thereafter indefinitely, subject to annual review by WeBill, until and unless either Party has terminated the Agreement in terms of clause 21 or otherwise in terms of this Agreement.

5 MARKETING AND PROMOTION OF SALES

5.1 Marketing and promotion. The VAR shall at all times during the currency of this Agreement use its best endeavours to develop a market for the Software in the Territory and to promote licenses for the Software in the Territory.

5.2 Full details to be provided. The VAR shall provide WeBill with the full details of all Customers in writing and in a format required by WeBill.

5.3 Marketing obligations. The VAR shall:

5.3.1 act consistently with WeBill’s marketing, sales, services and maintenance policies as may be communicated to the VAR from time to time; and

5.3.2 immediately refer to WeBill all queries or orders relating to the Software received by the VAR from any person outside the Territory.

5.4 Promotional material. WeBill agrees to furnish the VAR with pre-approved artwork and templates, which shall be used by the VAR for the purposes of printing promotional material from time to time, at the VARs own cost and expense, and in accordance with the terms of the VAR Schedule. In the event that the VAR develops its own promotional material in respect of the Software, such material shall first be approved by WeBill in writing, prior to publication.

5.5Visits. A representative from WeBill shall be entitled to attend at the VAR’s premises in each Territory upon reasonable notice to the VAR in order to ensure compliance by the VAR of its obligations under this Agreement.

5.6 Training. WeBill shall, in accordance with WeBill’s current policies and procedures, provide reasonable training for the VAR and, where so required, for the VAR’s Personnel on a train the trainer basis. The training will be held at a location of WeBill’s choice within the Republic of South Africa. All travel and subsistence costs in respect of the training of the VAR and its Personnel shall be for the VAR’s account.

6 THE SOFTWARE

6.1 Licence Agreement. Each Customer shall be required to conclude a Licence Agreement directly with WeBill and thereby licence the Software directly from WeBill. If requested to do so by WeBill, the VAR will ensure that a copy of the Licence Agreement is made available to Customers in a manner determined by WeBill.

6.2 Intellectual Property rights to the Products. The VAR shall use best endeavours to safeguard the Intellectual Property Rights of WeBill and to report promptly to WeBill any third party claim relating to the Intellectual Property Rights after such claim comes to the attention of the VAR, directly or indirectly. The VAR shall co-operate with WeBill in any enforcement or other protective action taken by WeBill and report to WeBill any breaches or suspected breaches of the Licence Agreement by Customers which could adversely affect WeBill’s Intellectual Property Rights and the WeBill Technology.

6.3 Restrictions. The VAR shall not:

6.3.1 grant access to, or knowingly permit access to be granted to, any part of the Software to any person other than a duly authorised Customer;

6.3.2 copy, translate, modify, adapt, decompile, disassemble or reverse engineer the Software (whether in whole or in part); or

6.3.3 merge or combine the whole or any part of the Software with any other computer software or materials.

6.4 Discontinuance. WeBill may, without liability to the VAR, discontinue provision of the Software (either in whole or in part) according to WeBill’s normal procedures. WeBill may in its discretion offer to substitute other WeBill products and/or services, as the case may be. Unless otherwise agreed by WeBill and the VAR in writing, the substituted products and/or services shall be sufficient under the terms of this Agreement.

6.5 No lien. The VAR has no rights to any lien or other right of retention or security interest in the Software (either in whole or in part).

7 SERVICES

7.1 Provision of Services. The VAR shall provide Services directly to Customers using its best endeavours and, in any event, at least at the Service Levels and to the reasonable satisfaction of WeBill. The VAR shall provide the Services in accordance with the specifications set out in the Service Levels and WeBill Policies, as applicable. It shall be a prerequisite to all engagements between VAR and Customer that Customer enters into the Licence Agreement with WeBill.

7.2 Location of Services. Where possible, the VAR may provide Services telephonically and/or via e-mail to the satisfaction of each Customer requiring it. Where the nature of the Services required by a given Customer is such that this is not possible or practicable, the VAR shall provide the Services at the Customer’s premises in the Territory. All costs directly and indirectly incurred by the VAR in providing Services (including, without limitation, travel and telecommunication costs) shall be for the VAR’s account.

7.3 Training. The VAR shall provide sufficient training to each Customer and its Personnel to enable the Customer to make productive use of the Software. Unless otherwise agreed by the Customer, the training will be held at the Customer’s premises or online within the Territory. All travel and subsistence costs in respect of the training of the Customer and its Personnel shall be for the VAR’s account.

7.4 VAR terms. VAR shall ensure that the terms and conditions on which it provides Services to Customers shall include at least the same terms and conditions and service levels contained in the Service Levels. Any failure by VAR to provide Services to its Customers in accordance with the Service Levels shall constitute a material breach of this Agreement.

8 RESTRICTIONS

The VAR and its Personnel shall not:

8.1 conclude any contract or order or sign any documentation on behalf of WeBill;

8.2 licence or purport to licence the Software to any Customers;

8.3 canvass or solicit orders for the Software or Services from any third party outside the Territory, however, if approved by WeBill in writing, the VAR will be entitled to generate leads outside of the Territory;

8.4 pledge or purport to pledge WeBill’s credit in any way, or bind WeBill in any manner to any obligation or undertaking including, without limitation, to any terms of a warranty (whether related to workmanship, materials, quality, durability or fitness for any purpose) without the prior written consent of WeBill;

8.5 form any company or business incorporating in its name the name “WeBill” (or any like or similar name) or any of WeBill’s Intellectual Property or in any other way use the same without obtaining the prior written consent of WeBill;

8.6 represent the Software as having different characteristics from those described by WeBill in its relevant literature, nor give any guarantee or warranty in respect of the Software;

8.7 provide quotations on WeBill’s letterhead or in WeBill’s name, in respect of any products or services;

8.8 provide quotations for or license the Software at a price other than as calculated on WeBill’s then-current pricing model and/or as indicated on WeBill’s then-current price list without WeBill’s prior express written approval; and

8.9 in addition to the restrictions contained in clause 19, for the duration of this Agreement and for a period of 24 (twenty-four) months thereafter, without the prior written consent of WeBill, directly or indirectly, represent, manufacture, sell, market, distribute or otherwise provide any products or services which compete with or are the same as or similar to the Software.

9 DEVELOPMENTS

9.1 Request for development. If, from time to time during the currency of this Agreement, the VAR is of the genuine and reasonable view that the business offering and service provided to Customers will be materially enhanced by a specific upgrade of, or specific enhancement to, the Software or new software, the VAR will be entitled and obliged to deliver a written notice to WeBill (“Request Notice”) requesting WeBill to develop such upgrade or addition. On receipt of the Request Notice, WeBill shall:

9.1.1 decide, in its discretion, whether the request is for (i) a specific upgrade of, or specific enhancement to, the Software (“Software Upgrade”); or (ii) new software that is able to operate independently from the Software (“Software Addition”); and

9.1.2 be entitled, in its discretion, to elect to develop the Software Upgrade or Software Addition or to request a reputable third party selected by WeBill to develop the Software Upgrade or Software Addition.

9.2 WeBill to elect. WeBill shall be entitled, in its discretion, to notify the VAR within 20 (twenty) Business Days (or such longer period as the VAR agrees to) after receipt of the Request Notice that WeBill is willing to develop the Software Upgrade or Software Addition or to request a reputable third party selected by WeBill to develop the Software Upgrade or Software Addition.

9.3 Software Upgrade. If WeBill does not notify the VAR within 20 (twenty) Business Days (or such longer period as the VAR agrees to) after receipt of the Request Notice relating to a Software Upgrade that WeBill is willing to either develop, or to request a reputable third party selected by WeBill to develop, the Software Upgrade, then the Software Upgrade shall not be developed, whether by WeBill or any other person.

9.4 Software Addition. If WeBill does not notify the VAR within 20 (twenty) Business Days or such longer period as the VAR agrees to) after receipt of a Request Notice relating to a Software Addition that WeBill is willing to either develop, or to request a reputable third party selected by WeBill to develop, the Software Addition, the VAR shall be entitled, subject to compliance with the other provisions of this Agreement and any technical requirements provided by WeBill in this regard, to procure the Software Addition from another reputable third party software developer; provided that (i) the Software Addition does not in any way adversely affect the functionality of the WeBill Software, (ii) that the Software Addition shall be developed in accordance with WeBill’s then-current technical requirements to ensure successful interfacing with the WeBill Software, and (iii) that there will be no obligation on WeBill to ensure successful interfacing between the relevant Software Addition and the WeBill Software.

9.5 No recourse. The VAR shall have no recourse against WeBill arising from WeBill’s failure (or that of a third party selected by WeBill) to agree to develop a Software Upgrade or Software Addition, or arising from WeBill’s failure (or that of a third party selected by WeBill) to develop the Software Upgrade or Software Addition.

9.6 Payment. The VAR shall remunerate WeBill, for developing the Software Upgrade or Software Addition, according to WeBill’s standard software development terms and conditions from time to time. If the Software Upgrade or Software Addition is developed by a third party selected by WeBill, WeBill shall determine whether the VAR shall pay:

9.6.1 the third party directly; or

9.6.2 WeBill according to WeBill’s standard software development terms and conditions from time to time, as if WeBill had developed the Software Upgrade or Software Addition, on the basis that WeBill will then pay the amount payable to the third party.

9.7 Rights extended. The rights and restrictions contained in this Agreement pertaining to the Software shall be extended to the Software Upgrades and/or Software Additions, including without limitation those contained in clauses.

10 OBLIGATIONS OF THE VAR

The VAR shall:

10.1 provide WeBill with a written business plan (incorporating an updated roll-out plan) on each anniversary of the Commencement Date or such other date as may be agreed to in writing between the Parties;

10.2 use its best efforts and facilities to establish, maintain and increase sales of licences of the Software in the Territory to the extent practicable by all usual, legal and ethical means, including, but not limited to, personal solicitation, demonstration of the Software and of the promotional materials;

10.3 furnish to WeBill, at quarterly intervals or at such less or more frequent intervals as WeBill may require in writing, forecasts in writing of expected orders of the Software during the period to which each such forecast relates;

10.4 ensure that it registers on the VAR Portal and submit all such information as required by WeBill from time to time, including without limitation all:

10.4.1 prospective leads and new or potential Customers; and

10.4.2 marketing activities with such lead or Customer,

10.5 in accordance with the WeBill Policies and WeBill’s directions from time to time;

10.6 promptly respond to all enquiries and complaints from Customers and potential Customers and promptly process all orders;

10.7 procure the licensing of the Software from WeBill in the Territory with such names, Trademarks, copyright notices, labels and other markings supplied by WeBill or as directed by WeBill;

10.8 promptly bring to the notice of WeBill any information received by it which is likely to be of interest, use or benefit to WeBill in relation to the marketing of the Software in the Territory or elsewhere;

10.9 immediately bring to the attention of WeBill in writing any and all infringements, imitations, illegal use or misuse, improper use or wrongful use of the Software or of the patents, WeBill Intellectual Property Rights, WeBill Technology, emblems, designs, models or other proprietary rights of WeBill, its licensors or suppliers which come to the VAR’s notice;

10.10 be required to register any opportunity in respect of any potential Customer in the Territory with WeBill before pursuing such opportunity. If neither WeBill nor any another value-added reseller appointed by WeBill have been engaging with such potential Customer, the VAR shall be permitted to pursue such opportunity on the terms and conditions of this Agreement. If WeBill has been engaging with such potential Customer, the VAR may not continue pursuing the opportunity, unless otherwise agreed by WeBill; and

10.11 if specifically requested by WeBill in writing, be required to engage with existing WeBill customers, and to perform such obligations in respect of such customers, as directed by WeBill on a case-by-case basis. For the avoidance of doubt, in such cases, the VAR shall, unless otherwise agreed, be entitled to the fees and charges agreed in writing between the Parties on a case by case basis.

11 SALES TARGETS

11.1 Targets. The VAR shall achieve the sales targets, if any, set out in the VAR Schedule.

11.2 Agree and review. Where sales targets apply to the VAR, the VAR shall, if so requested by WeBill, consult with WeBill on or before the last day of each 12 (twelve) month period of this Agreement to agree in writing on the sales targets to be obtained by the VAR for the following 12 (twelve) month period and to review the performance of the VAR with respect to such sales targets in the previous 6 (six) month period.

11.3 Failure. Should (i) the VAR fail to achieve the sales targets set out in the VAR Schedule, or sales targets as amended in terms of clause 10.2 above and/or (ii) the Parties fail to agree on the sales targets applicable for any 12 (twelve) month period under clause 10.2 above, then without prejudice to its rights, WeBill may terminate this Agreement in whole or in part on 30 (thirty) days’ written notice to the VAR.

12 FEES AND PAYMENT

12.1 Fees and fees. In consideration for (i) appointing the VAR in the Territory on the basis set out in the VAR Schedule and (ii) the VAR procuring licences for the Software and providing Services to Customers and complying with its other obligations in terms of this Agreement, and (iii) services provided by WeBill to the VAR, if any, the Parties shall be entitled to the payments and fees set out in the VAR Schedule.

12.2 Payment. Payments shall be made in accordance with the terms set out in the VAR Schedule, failing which, within 30 (thirty) days of date of invoice.

12.3 Only Software directly supplied. WeBill will pay Fees to the VAR only for licences for the Software obtained as a direct result of the activities of the VAR in terms of this Agreement.

12.4 Only liability. The Fees payable by WeBill shall be the only liability of WeBill to the VAR. Any additional services not covered in this Agreement rendered by the VAR to WeBill shall be the subject of a separate written agreement with WeBill.

12.5 No obligation to reimburse. WeBill is under no obligation or requirement to reimburse the VAR for any amounts or expenses incurred by the VAR and/or its Personnel in performing its obligations under this Agreement, or arising out of its activities under this Agreement.

13 RECORDS AND STATEMENTS

13.1 Up-to-date records. The VAR will ensure that complete, accurate and up-to-date records of all its transactions concerning the Software are delivered to WeBill on a timely basis and as may be requested by WeBill from time to time.

13.2 Right to audit. The VAR shall allow WeBill and/or any auditors appointed by WeBill at any time on reasonable notice, to have access to the VAR’s records in order to audit, for the purpose of verifying the truthfulness, correctness and accuracy of any of the information contained in them and any of the information provided to WeBill by the VAR in terms of this Agreement.

13.3 Results. If an audit carried out under clause 12.2 above reveals overpayment by WeBill of any Fees to the VAR, then the VAR (without prejudice to any other rights or remedies WeBill may have) shall:

13.3.1 immediately make good any such overpayment. All adjustment sums shall accrue interest at the rate of 2% (two percent) above the prime overdraft rate (percent, per annum) charged by WeBill’s then-current bankers from time to time, as evidenced by any manager of the bank, whose authority it shall not be necessary to prove, and shall be calculated from the date after such payment was due until the date such payment is made; and

13.3.2 bear the costs in connection with the audit (including professional advisers’ fees and expenses) if the audit reveals an overpayment of the fees by WeBill of 5% (five percent) or more in respect of the relevant period.

14 PROVISION OF ADDITIONAL SERVICES BY WEBILL

The VAR may from time to time request WeBill to provide services other than those services or obligations of WeBill as specifically set out in this Agreement (“Additional Services”). WeBill reserves the right not to provide such Additional Services. If WeBill agrees to provide such Additional Services, it shall do so in accordance with the terms and conditions of its then-current services agreement applicable in the Territory and on a time-and-materials basis at its then-current rates, unless otherwise agreed between the Parties in writing.

15 INTELLECTUAL PROPERTY

15.1 Existing material. All right, title and ownership of any code, forms, algorithms or materials developed by or for WeBill or the VAR independently and outside of the Agreement and provided during the course of the Agreement (“Existing Material”) shall remain the sole property of the Party providing the Existing Material.

15.2 Developments and improvements. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to any developments, additions or improvements to the Software or the WeBill Technology arising from VAR providing Services shall vest exclusively in WeBill and the VAR shall take all steps and sign all documents (upon demand) to give effect to the provisions of this clause.

15.3 Retention of rights. WeBill has created, acquired or otherwise obtained rights in the WeBill Technology and notwithstanding anything contained in the Agreement, WeBill will own all right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the WeBill Technology. Nothing in this Agreement shall have the effect of transferring (in whole or in part) ownership of the Software or the WeBill Technology to the VAR or any third party.

USE OF TRADEMARKS

16.1Trademarks are property of WeBill. The VAR acknowledges (i) WeBill’s (or, as the case may be, its licensors’ or suppliers’) right, title and interest in the Trademarks; and (ii) that the Trademarks are therefore the property of WeBill (or, as the case may be, its licensors or suppliers); and (iii) that, in connection with any reference to the Trademarks, the VAR shall not in any manner represent that it possesses any ownership interest in the Trademarks or the registration thereof, nor shall any action taken by the VAR or on the VAR’s behalf create in the VAR’s favour any right, title or interest in and to the Trademarks. The VAR undertakes not to claim or to seek to obtain any right, title and interest in or in relation to any such Trademark other than such rights as are provided by this Agreement and shall not do, or cause to be done, any acts or things contesting or in any way impairing or threatening to impair any of WeBill’s (or, as the case may be, its licensors’ or suppliers’) right, title and interest in and to the Trademarks. All goodwill arising from use of the Trademarks by the VAR will inure for the sole benefit of WeBill. If WeBill wishes to obtain or keep such Trademarks as registered Trademarks in the Territory, the VAR will, at WeBill’s expense, do everything necessary to assist WeBill in so doing.

16.2Use. WeBill may provide the VAR with the Trademark artwork for marketing purposes in terms of this Agreement. If the VAR is granted written permission from WeBill to use any Trademark, WeBill hereby grants to the VAR a non-exclusive, non-transferable, royalty-free, personal sub-license to use the Trademark only during the term of this Agreement, according to the specifications in Annexure B and other conditions herein, and solely in connection with this Agreement. All rights not expressly granted herein are reserved by WeBill. The VAR will not use the Trademarks in any manner that will diminish or otherwise damage WeBill’s goodwill in the Trademarks. The VAR agrees to fully correct and remedy any deficiencies in its use of the Trademarks, upon receipt of notice from WeBill. The VAR agrees that it will comply with any and all applicable laws and regulations, WeBill’s marketing and other requirements and corporate identity controls pertaining to the Trademarks. The VAR must not use the Trademarks, or any trademarks similar to the Trademarks, without the prior written approval from WeBill.

16.3 Termination. Upon termination for any reason of this Agreement or when requested by WeBill in writing, the VAR shall forthwith cease to use all the Trademarks and shall forthwith return to WeBill all materials containing the same.

17 LIMITATION OF LIABILITY

17.1 Maximum liability. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, delict or any other legal theory) in which any legal action may be brought, WeBill’s maximum liability for direct damages for anything giving rise to any legal action shall be an amount equal to the total Fees already paid or due and payable in respect of this Agreement in the 12 (twelve) month period immediately preceding the date on which the damages arose.

17.2 Consequential damages. WeBill shall not be liable for any indirect or consequential loss or damages, including without limitation, loss of business, data, profits, revenue or anticipated savings howsoever arising, suffered by the VAR and arising in any way in connection with this Agreement or the termination of this Agreement or for any liability of VAR to any third party.

17.3 Exclusions. The limitation contained in this clause 16 shall not apply to any breach by a Party of the other Party’s proprietary or confidential information or intellectual property, or damages arising from a Party’s wilful misconduct (including theft, fraud or other criminal act) or gross negligence.

17.4 WeBill not liable for default. WeBill shall not be liable for any loss or damage of whatsoever nature suffered by the VAR arising out of or in connection with any breach of this Agreement by the VAR or any act, misrepresentation, error or omission made by or on behalf of the VAR or its Personnel.

18 WARRANTIES

18.1 Software warranty. The warranties, if any, that are provided in the WeBill Licence Agreement will apply to the Software.

18.2 Disclaimer. Except for the above warranties given in this clause 17, WeBill makes no warranties or conditions, whether express, implied or statutory regarding or relating to the Software or any other materials or services furnished or provided under this Agreement. WeBill specifically disclaims all implied warranties of merchantability and fitness for a particular purpose and use with respect to the Software, any other materials and services.

18.3 Information only. All brochures, booklets, catalogues, trade pamphlets, advertising material or other documentation issued by WeBill in respect of the Software are for information only, and do not constitute warranties, representations or undertakings in respect of the Software.

18.4 VAR not to give additional warranties. The VAR shall not make any representation or give any warranty in respect of the Software, other than those contained in the Licence Agreement.

18.5 18.5 VAR warranties. The VAR warrants and represents that it –

18.5.1 is free to enter into and perform its obligations in terms of this Agreement;

18.5.2 shall use its best efforts to market and sell the Software and the Services;

18.5.3 shall accurately represent the Software and the Services to Customers and potential Customers;

18.5.4 shall provide the Services in accordance with the terms and conditions of this Agreement; and

18.5.5 shall comply with all applicable laws, rules, regulations and court orders (including without limitation, data protection laws) relating to its appointment under this Agreement and the marketing of the Software and the Services.

18.6 VAR Indemnification. The VAR hereby indemnifies and holds harmless WeBill, its directors, officers and employees from and against any and all claims, damages, losses, liabilities, costs and expenses arising out of the breach of any warranty given by it to WeBill or a breach of any of the VAR’s obligations under this Agreement.

19 CONFIDENTIALITY

19.1 Hold in confidence. The VAR shall hold in confidence all Confidential Information received from WeBill, and shall not divulge the Confidential Information to any person.

19.2 Prevent disclosure. The VAR shall prevent disclosure of the Confidential Information, except as may be required by law.

19.3 Return or destroy. Within 7 (seven) days after the termination of this Agreement for whatsoever cause and howsoever arising, the VAR shall return the Confidential Information, or at the discretion of WeBill, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof.

19.4 Exclusions. It is recorded that the following information will not, for the purpose of this Agreement, be considered to be Confidential Information –

19.4.1 information known to the VAR prior to the date that it was received from WeBill;

19.4.2 information known to the public or generally available to the public, prior to the date that it was disclosed by WeBill to the VAR;

19.4.3 information that becomes known to the public, or becomes generally available to the public subsequent to the date that it was disclosed by WeBill to the VAR, through no act or failure to act on the part of the VAR; and

19.4.4 information that WeBill authorises the VAR in writing to disclose.

19.5 Other confidentiality and non-disclosure agreements. The VAR’s obligations in terms of this clause are in addition to any other obligations that the VAR may have in terms of other confidentiality and non-disclosure agreements with WeBill.

19.6 Personnel. The VAR shall ensure that its Personnel provide the same confidentiality undertakings as that provided by the VAR to WeBill under this clause 18.

20 NON-SOLICITATION

The VAR shall not during the currency of this Agreement nor for a period of 24 (twenty-four) months following the termination thereof, directly or indirectly solicit or offer employment to any Personnel of WeBill who are employed by WeBill during the currency of this Agreement or were employed by WeBill at the date of termination of this Agreement, and shall not employ or contract in any manner with any such Personnel of WeBill.

21 RELATIONSHIP OF THE PARTIES

This Agreement does not constitute the VAR as WeBill’s employee or partner for any purpose whatsoever. The VAR shall be entitled to describe itself as an authorised VAR of the Software and the Services, subject to the provisions of this Agreement, but shall not in any way describe or hold itself out as the agent of WeBill or WeBill’s licensors or suppliers for any other purpose and shall have no authority or right (whether express or implied) to bind, assume or create any obligations for, enter into any contract on behalf of, collect any money for or bring any action in a court of law on behalf of WeBill or its licensors or suppliers in any manner whatsoever.

22 TERMINATION

22.1 Convenience. Either Party may terminate this Agreement by giving the other Party 40 (forty) days’ notice in writing of its intention to do so, without having to assign any reason therefor.

22.2 Breach. Either Party may on written notice terminate this Agreement forthwith if:

22.2.1 the other Party is in breach of any material term of this Agreement and has not remedied such breach within 7 (seven) days of the date of written notice requiring it to do so;

22.2.2 any order shall be made or resolution passed for the winding up of the other Party (except for the purposes of amalgamation or reconstruction); or

22.2.3 the other Party shall become insolvent, commit any act of insolvency or shall enter into any composition or arrangement with its creditors or shall cease or threaten to cease to carry on business.

22.3 Immediate termination. Notwithstanding anything to the contrary contained in this Agreement, WeBill shall be entitled to terminate this Agreement forthwith on notice to the VAR without liability to pay compensation therefor if:

22.3.1 the control or ownership of the VAR changes from that in effect at the commencement date of this Agreement;

22.3.2 the VAR assigns or sub-licenses its rights and obligations under this Agreement save as provided herein;

22.3.3 the VAR fails or ceases to comply with the requirements and conditions contained in the VAR Schedule, if any;

22.3.4 the VAR does or suffers to be done anything or undergoes any change which might prejudice WeBill’s (or its licensors’ or suppliers’) rights under this Agreement, or which might cause WeBill to suffer any loss or damage; or

22.3.5 the VAR obtains or attempts to obtain, directly or indirectly, orders for the Software from Customers in any area not included in the Territory without WeBill’s prior written agreement.

Duties on termination. Upon termination of this Agreement for whatever reason –

22.4.1 all unfulfilled orders of Customers will be furnished in writing to WeBill, who will be entitled, but not obliged, to fulfil such orders and WeBill will not be required to pay any Fees or fees to the VAR in regard thereto;

22.4.2 the VAR shall at its own expense forthwith, remove all signs whether from its premises, vehicles or elsewhere, which display or indicate any connection with the name of WeBill or which refer in any way to any of the Trademarks;

22.4.3 the VAR shall return all advertising and promotional matter, stationery, printed material or the like featuring any Trademark or description of any sort which it obtained from, or was authorised to use by WeBill;

22.4.4 the VAR shall not, by any act or omission, do anything which could prejudice WeBill’s name, image, business prospects or interest in any way with any Customer and/or potential Customer; and

22.4.5 the VAR will forthwith deliver to WeBill any software and materials that are the property of WeBill and WeBill may enter any premises and recover possession of and remove such software and materials.

22.5 Rights to damages. The exercise by any Party of the rights of termination under this clause 21 will not prejudice any right of either Party to damages or other rights or remedies in respect of the default giving rise to such termination or in respect of any rights or obligations already accrued under this Agreement at the date of termination.

22.6 No liability on termination. WeBill will not be liable to the VAR for any compensation, reimbursement for investments or expenses, loss of profits, goodwill or otherwise arising as a result of the termination or expiration of this Agreement for any reason.

23 ARBITRATION AND DISPUTE RESOLUTION

23.1 Arbitration. Any dispute that may arise at any time between the Parties relating to any matter arising out of this Agreement or the interpretation thereof, shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa or its successors in title by an arbitrator or arbitrators appointed by the Foundation.

23.2 Demand for arbitration. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party.

23.3 Interim relief. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

23.4 Location. The arbitration referred to in clause 22.1 shall be held at Johannesburg in the English language, immediately and with a view to its being completed within 21 (twentyone) days after it is demanded.

23.5 Decision binding. The Parties irrevocably agree that the decision in arbitration proceedings shall be final and binding upon the Parties, shall be carried into effect and may be made an order of any court of competent jurisdiction.

23.6 Survival. This clause 22 is severable from the rest of this Agreement and shall remain valid and binding on the Parties notwithstanding any termination or expiration of this Agreement.

24 Notices

24.1 Addresses. The Parties hereby choose domicilia citandi et executandi (referred to in this Agreement as a Party’s “domicilium”) for all purposes under this Agreement the physical addresses set out on the cover sheet.

24.2 Change of Address. Either Party may, on written notice to the other, change its domicilium to any other physical address and its e-mail address to any other number, provided that such change shall take effect 14 (fourteen) days after receipt or deemed receipt of such written notice.

24.3 Deemed Receipt. Any notice to be given by either Party to the other shall be deemed to have been duly received by the other Party –

24.3.1 if addressed to the addressee at its postal address set out on the cover sheet and posted by pre-paid registered post on the 10th (tenth) day after the date of posting thereof, or

24.3.2 if delivered to the addressee’s domicilium by hand during Business Hours on a Business Day, on the date of delivery thereof, or

24.3.3 if sent by e-mail to the addressee on the first Business Day following the date of sending thereof, subject to receipt of a read receipt or in the absence of any error message.

24.4 Notice actually received. Notwithstanding anything to the contrary stated above, if a notice or communication is actually received by a Party, adequate notice or communication shall have been given, even though it was not delivered in a manner described above.

25 FORCE MAJEURE

25.1 Parties not liable for force majeure. Neither Party shall be liable for any failure to fulfil its obligations under this Agreement if and to the extent that such failure is caused by any circumstances beyond its reasonable control, including, but not limited to flood, fire, earthquake, war, tempest, hurricane, industrial action, strikes, government restrictions, riots, interference by civil or military authorities, compliance with governmental, provincial or municipal laws, regulations, requests or policy, inability to secure governmental, provincial or municipal permission or acts of God.

25.2 Party affected to notify other Party. Should any event of force majeure arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) days of such notice to negotiate in good faith alternative methods of fulfilling its obligations in terms of this Agreement.

25.3 Right to terminate. Should either Party be unable to fulfil a material part of its obligations under this Agreement for a period in excess of 60 (sixty) days due to circumstances of force majeure, the other Party may at its sole discretion cancel this Agreement forthwith by written notice delivered to the other.

26 ANTI-BRIBERY AND CORRUPT PRACTICES

Each Party hereby represents, covenants and warrants that it shall not:

26.1 violate any applicable laws including (without limitation) any laws relating to anti-corruption, anti-bribery and money laundering (any such violation being a material breach of this Agreement), and shall promptly notify the other Party in writing in the event of any actual or alleged violation of such laws;

26.2 violate any policies of a Party relating to anti-corruption, anti-bribery and money laundering (any such violation being a material breach of this Agreement), and shall promptly notify the other Party in writing in the event of any actual or alleged violation of such policies; and

26.3 during the term of this Agreement, nor shall any of its directors, officers or employees, engage (or cause another party to engage) in any activity that is, or is reasonably likely to be, in breach of clause 25.1 or clause 25.2.

27 GENERAL

27.1 Entire Agreement. This Agreement constitutes the entire Agreement between WeBill and the VAR in respect of the subject matter hereof.

27.2 Variation. No amendment or modification to this Agreement shall be effective unless in writing and signed by authorised signatories of both WeBill and the VAR.

27.3 Waiver. No granting of time or forbearance shall be or be deemed to be a waiver of any term or condition of this Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach.

27.4 Applicable law. This Agreement shall be governed and construed in accordance with the laws of the Republic of South Africa and the VAR agrees to submit to the jurisdiction of the Magistrates’ Court in respect of any action or proceedings which may arise from or be brought in connection with this Agreement.

27.5 Costs. Each Party shall be responsible for its own legal and other costs relating to the negotiation of this Agreement.

27.6 Publicity. VAR will not make or issue any formal or informal announcement or statement to the media in connection with this Agreement without the prior written consent of WeBill.

27.7Assignment. WeBill is entitled to cede, assign, transfer or otherwise make over (collectively “Cession”), without the consent of or notice to the VAR, all or any of WeBill’s rights under this Agreement to any other person or entity. The VAR hereby undertakes to accept the Cession and to acknowledge the rights of the cessionary in terms of this clause and the terms and conditions of this Agreement. The VAR may not cede, assign, transfer or make over this Agreement, or any part thereof, without WeBill’s prior written consent.

27.8Warranty of authority. Each Party warrants to the other Party that it has the power, authority and legal right to sign and perform this Agreement and that this Agreement has been duly authorised by all the necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of this Agreement.

27.9Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original, and such counterparts together will constitute one and the same instrument. Execution may be effected by delivery of facsimiles of signature pages (and the Parties will follow such delivery by prompt delivery of originals of such pages).

ANNEXURE A

VAR SCHEDULE

1 COMMENCEMENT DATE

[Insert date]

2 SOFTWARE AND COMMISSION, FEES AND CHARGES

2.1 Subject to the terms and conditions of the Agreement, the VAR will be appointed as WeBill’s VAR in respect of the following Software:

The Software
 [Insert/detail – alternatively, state “Any software which WeBill makes available to the VAR for the purposes of this Agreement from
 time to time”]

2.2 The Parties will be entitled to the following, fees and payments:

2.2.1 The VAR will be entitled to a Fees in the form of [a discount on the listed licence fees in respect of the Software OR a commission on the licence fees paid by Customer in respect of the Software – confirm], as follows:
[insert – once this has been determined, we suggest sending us the requisite information, in order to ensure this is properly incorporated into the agreement]

2.2.2 Services: [insert]

2.2.3 Special Deals/arrangements: There may be occasions where the VAR identifies unique opportunities for the Parties outside the scope, ambit and terms of this Agreement. Each of these will be discussed and agreed in writing between the Parties at the time.

2.3 Payment will be made in the following currency: [insert]

3 TERRITORY

[Insert]

4 PROMOTIONAL MATERIAL

4.1 VAR may, at its own cost and expense, print such brochures and other promotional material as made available by WeBill in soft copy to the VAR from time to time, provided that only the templates and artwork as provided by WeBill may be used by VAR for such purposes, the intention being that VAR shall not alter or modify any such templates or brochures prior to the printing thereof without WeBill’s prior written consent.

4.2 If agreed to by WeBill in its absolute discretion, any additional promotional material required by the VAR will be made available to the VAR at WeBill’s cost price, provided that WeBill shall not be obliged to produce promotional material and all promotional material shall be made available to the VAR at WeBill’s offices for collection after receipt of payment in respect thereof.

5 SALES TARGETS [DELETE IF NOT APPLICABLE]

Period Sales Target
[Insert/detail] [Insert/detail]

Sales targets are to be reviewed periodically as per clause 10.2 of this Agreement.

6 REQUIREMENTS AND CONDITIONS

The following requirements and conditions will have to be maintained by VAR in order to maintain its appointment hereunder:

6.1 [list requirements, e.g. minimum resource requirements, infrastructure requirements, certifications, etc]

7 SERVICES AND SERVICE LEVELS

7.1 The Services provided by the VAR to the Customer in accordance with its VAR Status in terms of clause 2.2.1 will include the following:

7.1.1 [list basic/essential services]

7.2 The VAR shall respond to all first line Services requests from Customers within 24 (twenty-four) Business Hours of receipt thereof.

7.3 All Services requests from Customers that cannot be resolved to the Customer’s satisfaction must be escalated to such person as WeBill may designate from time to time for such purposes no more than 24 (twenty-four) Business Hours after it becomes apparent that the VAR is unable to resolve such Services request.

The VAR shall forward all cancellation notices from Customers to such person as WeBill may designate from time to time for such purposes immediately upon receipt thereof from the Customer.

ANNEXURE B

TRADEMARK USE SPECIFICATIONS

1 MATERIALS RELATED TO THE SOFTWARE

The Trademarks may be used solely on materials directly related to the Software and which are approved by WeBill. The VAR’s name, trademarks, or trademark must also appear on any materials where the Trademarks are used. The Trademarks may not be used in any manner other than as contemplated by this Agreement.

2 THE TRADEMARKS MUST BE STAND ALONE

The Trademarks may not be included in any third party trademarks, trade names, business names, domain names, product or service name, trade dress, design, slogan or other mark. The Trademarks may not be combined with any other object, including, but not limited to, other trademarks, words, graphics, photos, slogans, numbers, design features, or symbols. A minimum amount of empty space must surround the Trademarks separating it from any other object, such as type, photography, borders, edges, and so on. The required area of empty space around the Trademarks must be at least 1 (one) centimetre. The VAR shall not use the Trademarks in association with any third party trademarks in a manner that suggests co-branding or otherwise creates potential confusion as to ownership of the Trademarks.

3 NO ALTERATION

The Trademarks (including without limitation the size, proportions, colours, elements of the Trademarks) may not be altered in any manner. The Trademarks may not be animated, morphed, or otherwise distorted in perspective or dimensional appearance.

PILOT LICENCE AGREEMENT

between

WEBILL PROPRIETARY LIMITED
(“WeBill”)

Company Registration Number 2016/538436/07
Physical Address 147 Northreef Road, Ekurhuleni
Postal Address 147 North Reef Road, Bedfordview, Ekurhuleni
Telephone Number  
Contact Person Ben Ferreira or Ayal Rosenberg or Asanda Solinjani
Email Address legal@webill.net
Signature(s)
(who warrants that s/he is duly authorised to Sign)
 
Name Ayal Rosenberg Ben Ferreira
Title MD Legal
Date    

and

[INSERT]
(“Pilot Partner”)

Company Registration Number/SA ID Number  
Physical Address  
Postal Address  
Telephone Number  
Contact Person  
Email Address  
Signature(s)
(who warrants that s/he is duly authorised to Sign)
 
Name    
Title    
Date    

This Agreement consists of (i) this cover sheet, (ii) the attached terms and conditions; and (iii) the schedules and annexures attached to this cover sheet (“Agreement”). By signing this cover sheet the Parties agree to be bound by this Agreement. The Parties shall not be bound prior to signature.

EFFECTIVE DATE  
AGREEMENT REFERENCE NUMBER  

1 INTRODUCTION

1.1 WeBill owns the Software, which Software is in the process of being developed to serve the needs of WeBill’s customers and potential customers, prior to making the Software commercially available to its customers.

1.2 Pilot Partner wishes to obtain the right to use the Software as on a trial basis, while such Software is still in the process of being developed, for the purposes of evaluating the Software and providing input and feedback to WeBill for the purposes of improving, inter alia, the functionality and use of Software.

1.3 WeBill has agreed to make the Software available to the Pilot Partner free of charge on a trial basis for such evaluation purposes.

1.4 The Parties wish to record their agreement in respect of the aforementioned in writing.

2. DEFINITIONS AND INTERPRETATION 

2.1 Definitions. For purposes of this Agreement, the following terms shall have the following meanings –

2.1.1 “AFSA” means the Arbitration Foundation of Southern Africa, or its successors in title;

2.1.2 “Authorised User” means members of Pilot Partner’s Personnel who have been authorised by WeBill in Writing to access the Software;

2.1.3 “Business Day” means any calendar day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa;

2.1.4 “Business Hours” means the hours from 08h00 to 17h00 (South African time) on Business Days;

2.1.5 “Commencement Date” means, notwithstanding the Effective Date or the Signature Date, the date indicated as such on the Term Sheet;

2.1.6 “Deliverables” means any deliverable or work product delivered by WeBill pursuant to this Agreement;

2.1.7 “Documentation” means any available installation and operating instructions, user and support manuals and technical literature pertaining to the Software as supplied by WeBill with the Software;

2.1.8 “Effective Date” means the date recorded as such on the cover sheet of this Agreement;

2.1.9 “EULA” means WeBill’s standard End-User Licence Agreement, which is available on the WeBill Corporate WebSite or upon request, as updated and modified from time to time, and is attached to this Agreement;

2.1.10 “Parties” means WeBill and the Pilot Partner and “Party” means either one of them;

2.1.11 “Personnel” means any director, employee, agent, consultant, contractor or other representative of the Parties;

2.1.12 “Pilot Partner Information” means Pilot Partner’s, its Authorised Users’ and/or its clients’ data (including personal information about an identifiable individual)—

2.1.12.1 provided to WeBill either by Pilot Partner, its Authorised Users or by any third party on their behalf (whether directly or via the Software); or

2.1.12. 2which is specific to Pilot Partner, its Authorised Users and/or its clients and which WeBill generates, processes, or supplies to Pilot Partner through the use of the Software;

but excludes any anonymised, aggregated or derived data that is created by WeBill for its own internal purposes or which is proprietary or confidential to WeBill.

2.1.13 “Privacy Policy” means WeBill’s standard Privacy Policy, which is available the WeBill Corporate website or upon request, as updated and modified from time to time, and is attached to this Agreement;

2.1.14 “Signature Date” means in respect of any document or this Agreement, the date of signature thereof by the Party signing last;

2.1.15 “Software” means the software as described in the Term Sheet and includes –

2.1.15.1 any one or more modules thereof; and

2.1.15.2 the Documentation;

 whether provided to Pilot Partner on installation media or remotely in an application service provider environment;

2.1.16 “Term Sheet” means the annexure attached hereto as Schedule 1, detailing the commercial provisions applicable to this Agreement, which may be amended from time to time by agreement between the Parties;

2.1.17 “Use Parameters” means the parameters of use of the Software, as specified in the Term Sheet;

2.1.18 “WeBill Technology” means any and all technology that WeBill has created, acquired or otherwise has rights in and may, in connection with the performance of WeBill’s obligations under the Agreement, employ, provide, modify, create or otherwise acquire rights in and includes all concepts; ideas; methods; methodologies; procedures; processes; know-how; techniques; function, process, system and data 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 and routines; and logic, coherence and methods of operation of systems; and

2.1.19 “Writing” means any mode of reproducing information or data in paper form and includes, without limitation, hard copy printouts of electronic documents, handwritten documents and fax transmissions, and “Written” and “Write” shall have a corresponding meaning.

2.2 Headings. Headings and sub-headings are inserted for information purposes only and shall not be used in the interpretation of this Agreement.

2.3 References. Unless otherwise stated in this Agreement, references to clauses, sub-clauses, schedules or paragraphs are references to clauses, sub-clauses, schedules or paragraphs of this Agreement.  

2.4 Enactments. References to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended from time to time.

2.5 References to this Agreement. Unless otherwise stated in this Agreement, references in this Agreement to this Agreement or to any other agreement are references to this Agreement or such other agreement as varied, supplemented, substituted or replaced from time to time.

2.6 References to persons. References to persons shall include natural and juristic persons and references to either Party shall include such Party’s successors or permitted assigns.

2.7 Substantive Provisions. If any provision in a definition is a substantive provision conferring rights or imposing obligations on either Party, notwithstanding that it is only in this clause 2, effect shall be given to it as if it were a substantive provision in this Agreement.

2.8 Calculation of Days. Unless otherwise stated in this Agreement, when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last calendar day falls on a calendar day that is not a Business Day, in which case the last calendar day shall be the next Business Day.

2.9 Definitions in the Agreement. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in clause 2.1.

2.10 Contra proferentum excluded. The rule of construction that an agreement shall be interpreted against the Party responsible for its drafting or preparation shall not apply.

3. DURATION

This Agreement shall commence on the Effective Date and shall continue until expiry of the licence granted in terms of clause 4, or until terminated in accordance with its terms.

4. GRANT OF LICENCE

4.1 Grant. WeBill hereby grants the Pilot Partner a limited, revocable, non-exclusive and non-assignable licence to use the Software in object code form in accordance with the Use Parameters on the terms and conditions set forth in this Agreement and the EULA. 

4.2 Acceptance. The Pilot Partner –

4.2.1 accepts the licence granted to it in terms of clause 4.1;

4.2.2 acknowledges that it will only use, and grant its Authorised User’s access to, the Software in accordance with the Use Parameters, the EULA and the Privacy Policy;

4.2.3 is authorised only to use the Software for its own internal business purposes; 

4.2.4 acknowledges that it obtains no rights of ownership of the Software whatsoever; and

4.2.5 acknowledges that the Software is still in its pre-release phase and is being provided on a trial basis for evaluation purposes only.

4.3 Trial services. The Parties agree that the Software is made available as a free trial service to the Pilot Partner, for the purposes of evaluating the Software. Consequently, WeBill will make the Software available to Pilot Partner on a trial basis free of charge from the Commencement Date until:

4.3.1 the end of the applicable free trial period, as indicated in the Licence Term Sheet; 

4.3.2 the effective date of any purchase of a paid-for subscription for the Software by the Pilot Partner; or 

4.3.3 termination of the free trial period by WeBilll, in its sole discretion,

whichever occurs first (“Trial Period”).

4.4 Availability and use. Pilot Partner acknowledges that WeBill makes no guarantee as to the availability of the Software during the Trial Period, and accepts that any data entered into the Software may be permanently lost upon termination of the licence under this clause 4. WeBill does not accept any liability for any loss of data, including Pilot Partner Information, resulting from Pilot Partner’s access to and/or use of the Software during the Trial Period.

4.5 EULA. Pilot Partner warrants that access to the Software shall be provided only to those Authorised Users who have accepted the EULA and WeBill Privacy Policy in accordance with WeBill’s standard policies and procedures at the time.

4.6 Disclaimer of warranties. Notwithstanding anything to the contrary herein contained, and specifically notwithstanding any representations, warranties, disclaimers or indemnifications made or provided by WeBill under this Agreement, the Software is provided “as is”, without any warranty of any nature whatsoever. Use of the Software during the Trial Period is at Pilot Partner’s own risk, and WeBill accepts no liability and provides no indemnity of any nature whatsoever in respect of Pilot Partner’s access to and/or use of the Software. Without limiting the generality of the foregoing, WeBill hereby excludes and disclaims all warranties in respect of the Software, whether expressed or implied, statutory or otherwise, including any implied warranties of satisfactory quality, no latent defects, accuracy, merchantability and fitness for a particular purpose, availability, or uninterrupted, error-free, accurate and/or secure use. Pilot Partner agrees that no limitation or exclusion of liability under this Agreement shall apply in respect of its access to and/or use of the Software, and that it shall remain fully liable for any damages arising out of its access to and/or use of the Software, including resulting from any breach by it or its Authorised Users of this Agreement. 

4.7 Continued use. If, at the termination or expiry of the Trial Period, the Pilot Partner wishes to continue using the Software, the Pilot Partner shall enter into a separate licence agreement with WeBill regulating the use of the Software on the terms and conditions therein contained. 

5. RESTRICTIONS ON LICENCE

The Pilot Partner shall not –

5.1 except to the extent as may be permitted by law, modify, translate or create derivative works based on the Software, nor reverse assemble, de-compile or reverse engineer the Software, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the Software or any files contained in or generated by the Software, nor shall it permit, whether directly or indirectly, any third party to do any of the foregoing;

5.2 merge or combine the whole or any part of the Software or any part thereof with any other software or documentation without the prior written consent of WeBill;

5.3 grant any unauthorised personnel or third party direct access to the Software, including by way of lease, download, as an application or bureau service provider or any other method, unless otherwise agreed in Writing between Pilot Partner and WeBill, and then only to the extent so agreed;

5.4 allow any Personnel to access the source code, underlying ideas, algorithms, file formats, programming of the Software or any files contained in or generated by the Software; 

5.5 use the Software to provide an application or bureau service to any third party;

5.6 lend or transfer any part of the Software or any part thereof to any third party; 

5.7 sub-license or otherwise transfer the use of the Software, whether in whole or in part, to any third party; or

5.8 remove any proprietary notices or labels on the Software.

6. CO-OPERATION

6.1 Co-operation. The Parties agree to co-operate with one another and work together for the purpose set out in clause 1.2 (“Purpose”) and to use all reasonable endeavours to facilitate the achievement of the Purpose to WeBill’s reasonable satisfaction. 

6.2 Assistance. In order to achieve the Purpose, Pilot Partner agrees to provide ongoing assistance, liaison, input, support and full co-operation and shall, to the extent required by WeBill and at Pilot Partner’s cost— 

6.2.1 comply with the requirements and obligations set out in the Term Sheet timeously and in full;

6.2.2 render all decisions and approvals required as soon as is reasonably possible;

6.2.3 provide WeBill with such reasonable access to Pilot Partner Information and Pilot Partner’s computer systems as is required for WeBill to discharge its obligations in terms of the Agreement and to achieve the Purpose;

6.2.4 make available sufficiently qualified and authorised Pilot Partner Personnel, with appropriate access rights and permissions;

6.2.5 comply with all reasonable policies, procedures and instructions of WeBill in connection with this Agreement; 

6.2.6 take commercially reasonable measures to ensure that no malicious software is introduced into the Software or any other WeBill system by its Personnel or any third party; 

6.2.7 provide WeBill and its Personnel with access to adequate working space, office furniture and parking;

6.2.8 provide a suitable infrastructure for the Software to be implemented, in accordance with any specification requirements;

6.2.9 provide electricity services, telephone services and other connectivity at each of Pilot Partner’s sites;

6.2.10 obtain and maintain any licences or consents necessary for WeBill to provide the Software to Pilot Partner; and

6.2.11 ensure that any infrastructure upon which the Software is dependent is not altered, upgraded (including routine updates or patches) or otherwise changed without giving reasonable advance notice to WeBill.

6.3 Accuracy of information. The information to be supplied by each Party to the other during the Trial Period shall be accurate, truthful, and complete to the best of that Party’s knowledge.

6.4 Costs. Each Party will bear all costs, risks, and liabilities incurred by such Party arising out of such Party’s obligations and efforts under this Agreement. Neither Party shall have any right to any reimbursement, payment, or compensation of any kind from the other Party, unless agreed in writing by the Parties or as otherwise set out in this Agreement. 

6.5 Undertaking. The Parties undertake at all times to do all such things, perform all such actions and take all such steps and to procure the doing of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement and for the purposes of achieving the Purpose as set out in clause 6.1.

6.6 Good faith. The Parties shall at all times owe each other a duty of the utmost good faith. 

7. AUDIT 

7.1 Pilot Partner to maintain records. Pilot Partner shall maintain books and records in connection with Pilot Partner’s use of the Software under this Agreement, and Pilot Partner’s general compliance with the terms and conditions of this Agreement. Such records shall include at a minimum the names of all Authorised Users.

7.2 Right to audit. WeBill may, at its expense, audit the records of Pilot Partner to ensure compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at Pilot Partner’s offices and shall not unreasonably interfere with Pilot Partner’s business activities.

8. WARRANTIES

8.1 WeBill warranties. WeBill warrants that it is entitled to grant the licence contemplated in this Agreement.

8.2 No representations. The Pilot Partner warrants that:

8.2.1 t has not been induced to enter into this Agreement by any prior representations, warranties or guarantees, whether oral or in writing, except as expressly contained in this clause 8; 

8.2.2 it shall ensure that its Authorised Users comply with the terms of the Licence; and

8.2.3 it shall ensure that its Authorised Users accept and comply with the EULA and the Privacy Policy at all times.

8.3 Disclaimer of warranties. The warranties set forth in this clause 8 are exclusive and in lieu of all other warranties, whether statutory, express or implied. Without limiting the foregoing WeBill disclaims any implied warranties of satisfactory quality and fitness for a particular purpose.

9. FEES 

The Parties record that no consideration shall be payable by Pilot Partner to WeBill in respect of the licence granted to the Pilot Partner in terms of this Agreement.

10. INTELLECTUAL PROPERTY

10.1 Intellectual Property Rights vest in WeBill. All right, title and interest, including but not limited to all rights under all copyright, patent and other intellectual property laws, in and to the Software shall vest in WeBill. The Pilot Partner shall not question or dispute the ownership of any of WeBill’s intellectual property rights in and to the Software at any time.

10.2 Existing material. All right, title and ownership of any code, forms, algorithms, methodologies, frameworks or materials developed by or for WeBill or Pilot Partner independently and outside of the Agreement and provided during the course of the Agreement (“Existing Material”) shall remain the sole property of the Party providing the Existing Material.

10.3 Deliverables. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to any Deliverables shall vest in WeBill.

10.4 Retention of rights. WeBill has created, acquired or otherwise obtained rights in the WeBill Technology and notwithstanding anything contained in the Agreement, WeBill will own all right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the WeBill Technology.

10.5 Use of WeBill Technology. To the extent that a Party utilises any WeBill Technology in connection with such Party’s performance under this Agreement, the WeBill Technology shall remain the property of WeBill and Pilot Partner shall acquire no right or interest therein.

10.6 Derivative Works. Unless otherwise agreed to in Writing, with respect to any development, adaptation, enhancement, modification, adjustment or other change to any WeBill Technology which may be developed (“Derivative Works”), WeBill shall be the owner of all such Derivative Works. 

11. CONFIDENTIAL INFORMATION

11.1 Confidentiality obligation. Each Party (“Receiving Party“) must treat and hold as confidential all information which it may receive from the other Party (“Disclosing Party“) or which becomes known to it during the currency of the Agreement. 

11.2 Nature. The confidential information of the Disclosing Party shall include—

11.2.1 all software and associated material and documentation, including the information contained therein;

11.2.2 all information relating to—

11.2.2.1 the Disclosing Party’s past, present and future research and development;

11.2.2.2 the Disclosing Party’s business activities, pricing, products, services, customers, as well as the Disclosing Party’s technical knowledge and trade secrets;

11.2.3 the terms of the Agreement.

11.3 The Receiving Party’s obligations. The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s confidential information—

11.3.1 it shall only make the confidential information available to those of the Receiving Party’s Personnel who are actively involved in the execution of the Receiving Party’s obligations under the Agreement and then only on a “need to know” basis;

11.3.2 it shall initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to confidential information, its secret and confidential nature;

11.3.3 subject to the right to make the confidential information available to its Personnel under clause 11.3.1, it shall not at any time use any confidential information of the Disclosing Party or directly or indirectly disclose any confidential information of the Disclosing Party to third parties;

11.3.4 all written instructions, drawings, notes, memoranda and records of whatever nature relating to the confidential information of the Disclosing Party which have or shall come into the possession of the Receiving Party and its Personnel, shall be and shall at all times remain the sole and absolute property of the Disclosing Party and shall promptly be handed over to the Disclosing Party when no longer required for the purposes of an Order.

11.4 Effect of termination. On termination or expiry of an Order, the Parties will deliver to each other or, at the other Party’s option, destroy all originals and copies of confidential information in their possession.

11.5 Exceptions. These obligations shall not apply to any information which—

11.5.1 is lawfully in the public domain at the time of disclosure;

11.5.2 subsequently and lawfully becomes part of the public domain by publication or otherwise;

11.5.3 subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose the confidential information; or

11.5.4 is disclosed pursuant to a requirement or request by operation of law, regulation or court order.

11.6 Right of use. All notes and any other literature or printed material supplied in the course of providing the Software are supplied solely for the use of full-time Personnel of Pilot Partner in the course of their normal duties. Pilot Partner undertakes that it shall not, without the prior Written consent of WeBill, make such literature or material available to any contractors, consultants or consulting organisations which have been or may be employed by Pilot Partner.

11.7 Indemnity. The Receiving Party hereby indemnifies the Disclosing Party against any loss or damage which the Disclosing Party may suffer as a result of a breach of this clause by the Receiving Party or the Receiving Party’s Personnel.

11.8 Survival. This clause is severable from the remainder of the Agreement and shall remain valid and binding on the Parties, notwithstanding any termination, for a period of 5 (five) years after the effective date of termination.

12. LIMITATION OF LIABILITY

12.1 Direct damages limited. Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, WeBill’s maximum liability for direct damages for anything giving rise to any legal action pursuant to this Agreement shall be an amount of R25 000.00 (twenty-five thousand rand). Such maximum amount shall be an aggregate amount for all claims arising out of this Agreement during the currency hereof.

12.2 Indirect damages excluded. In no event shall either Party or its Personnel be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including, without limitation, loss of profits, loss of goodwill, lost or damaged data or software, loss of use, downtime or costs of substitute products) arising from this Agreement.

12.3 Exclusions. The limitations and exclusions contemplated in this clause 12 shall not apply to any breach by a Party of the other Party’s proprietary or confidential information or intellectual property, a breach of the restrictions contained in clause 4.3 or damages arising from a Party’s wilful misconduct (including theft, fraud or other criminal act).

12.4 WeBill not liable for Pilot Partner default. WeBill shall not be liable for any loss or damage of whatsoever nature suffered by the Pilot Partner arising out of or in connection with any breach of this Agreement by the Pilot Partner or any act, misrepresentation, error or omission made by or on behalf of the Pilot Partner or the Pilot Partner’s Personnel.

13. TERMINATION

13.1 Termination. Either Party may terminate this Agreement with immediate effect upon written notice to the other. 

13.2 Duties on termination. Within 14 (fourteen) calendar days after the date of termination of this Agreement, Pilot Partner shall return to WeBill, or destroy the applicable original and all copies of the Software, in accordance with the written instructions from WeBill, failing such instructions, they shall be destroyed in any form, in whole or in part, and an officer of Pilot Partner shall certify to WeBill in writing that it has been done.

14. DISPUTE RESOLUTION

14.1 Managing Directors. Any dispute which arises between the Parties shall be referred to senior executives of the Parties (or their duly authorised representatives) who will use their best endeavours to resolve the dispute in good faith within 5 (five) Business Days of the dispute having been referred to them.

14.2 Failure to resolve. Should the Parties be unable to resolve a dispute, the dispute will be finally resolved in accordance with the Rules of AFSA, by an arbitrator or arbitrators appointed by it.

14.3 Demand for arbitration. Either Party may demand that a dispute be referred to arbitration by giving Written notice to that effect to the other Party.

14.4 Urgent interim relief. Nothing in the Agreement shall preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction.

14.5 Arbitration terms. The arbitration referred to in clause 14.2 shall be held – 

14.5.1 at Johannesburg in the English language; and

14.5.2 immediately and with a view to its being completed within 21 (twenty-one) calendar days after it is demanded.

14.6 Right of appeal. The Parties irrevocably agree that the submission of any dispute to arbitration is subject to the Parties’ rights of appeal. Either Party may appeal the arbitration ruling by giving Written notice to the other Party to the arbitration within 20 (twenty) calendar days of the ruling being handed down. The appeal shall be dealt with in accordance with the rules of AFSA by a panel of 3 (three) arbitrators appointed by AFSA.

14.7 Parties to be bound. The Parties irrevocably agree that on expiry of the 20 (twenty) calendar day period for appeal or the handing down of the ruling of the appeal panel, as the case may be, as contemplated in clause 14.6, the decision in arbitration proceedings—

14.7.1 shall be final and binding on the Parties;

14.7.2 shall be carried into effect; and

14.7.3 may be made an order of any court of competent jurisdiction.

14.8 Costs. The costs of any reference to arbitration will be borne by the unsuccessful Party, unless otherwise determined by the Parties or the arbitrator, irrespective of which Party referred the dispute to arbitration.

14.9 Severability. This clause 14 is severable from the rest of the Agreement and shall remain valid and binding on the Parties notwithstanding any termination of this Agreement.

14.10 Collection proceedings. WeBill retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.

15. NOTICES AND DOMICILIUM

15.1 Addresses. The Parties hereby choose domicilium citandi et executandi (“Domicilium”) for all purposes under this Agreement the physical addresses set out on the cover sheet of this Agreement.

15.2 Change of Address. Either Party may give written notice to the other, change its Domicilium to any other physical address in the Republic of South Africa, provided that such change shall take effect fourteen 14 (fourteen) calendar days after delivery of such written notice.

15.3 Deemed Delivery. Notice will be deemed given –

15.3.1 if delivered by hand to a responsible person during Business Hours to the designated physical address, on the date of delivery; or

15.3.2 if sent by pre-paid registered post in a correctly addressed envelope to the designated postal address, on the 10th (tenth) Business Day after the date of posting.

15.4  Notice actually received. Notwithstanding anything to the contrary stated above, if a notice or communication is actually received by a Party, adequate notice or communication shall have been given, even though it was not delivered in a manner described above.

15.5 Use of e-mail. The Parties record that, whilst they may correspond via e-mail during the currency of the Agreement for operational reasons, no formal notice required in terms of the Agreement, nor any amendment or variation to the Agreement may be given or concluded via e-mail.

16. ASSIGNMENT

16.1 No assignment by Pilot Partner. The Pilot Partner shall not be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of the Agreement without the prior Written consent of WeBill.

16.2 Assignment by WeBill. WeBill shall be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of the Agreement without the prior written consent of the Pilot Partner, provided that WeBill shall notify Pilot Partner within a reasonable time of the event occurring.  

17. NON-EXCLUSIVITY

Nothing in this Agreement shall be construed as precluding or limiting in any way the right of WeBill to provide software, goods or services of any kind or nature whatsoever to any person or entity as WeBill in its sole discretion deems appropriate.

18. SERVICES

Should Pilot Partner require any additional services to be provided in respect of the Software, then the services shall be provided subject to the terms and conditions of a separate agreement which shall be concluded between the Parties.

19. GENERAL

19.1 Entire Agreement. This Agreement constitutes the entire agreement between the Pilot Partner and WeBill in respect of the subject matter of this Agreement.

19.2 Variation. No amendment or modification to this Agreement shall be effective unless in Writing and Signed by authorised signatories of both the Pilot Partner and WeBill.  

19.3 Waiver. No granting of time or forbearance shall be or be deemed to be a waiver of any term or condition of this Agreement and no waiver of any breach shall operate a waiver of any continuing or subsequent breach.

19.4 Severability. If the whole or any part of a provision of this Agreement is void or voidable by either Party or unenforceable or illegal, the whole or that part (as the case may be) of that provision, shall be severed, and the remainder of this Agreement shall have full force and effect, provided such severance does not alter the nature of this Agreement between the Parties.

19.5 Governing Law and jurisdiction. This Agreement shall be governed and construed according to the laws of the Republic of South Africa and the Pilot Partner agrees to submit to the exclusive jurisdiction of the South African courts.

19.6 Costs. Each Party shall be responsible for its own legal and other costs relating to the negotiation of this Agreement.

19.7 Publicity. Neither Party will make or issue any formal or informal announcement or statement to the press in connection with the Agreement, without the prior written consent of the other Party.

19.8 Right to reference. The Pilot Partner hereby consents to the use by WeBill of the Pilot Partner’s name and a general description of the Software licensed by WeBill in terms of this Agreement in any proposals or other similar such documents which WeBill may issue or submit from time to time.

schedule 1

TERM SHEET

commencement date

[insert]

trial period

[insert – e.g. 90 days]

software

system Requirements

USE PARAMETERS

Designated Ancillary 

Authorised Users. 

For the purposes of the table above means a member of Pilot Partner’s Personnel who has been granted access to and use of the Software by WeBill. An Authorised User’s login/account credentials may not be shared by more than one individual.

Territory. The geographical area in which Pilot Partner may use the Software is in the Republic of South Africa.

requirements AND PILOT PARTNER OBLIGATIONS

As provided for in the Agreement, Pilot Partner undertakes to comply with the following requirements of WeBill, on the basis set out in clause 6.2, to the reasonable satisfaction of WeBill: 

Pilot Partner shall report to WeBill, in the format requested by WeBill and at such regular intervals as WeBill may request from time to time, on the following issues experienced and detected in the Software and the use thereof:

Software bugs;

system failures;

suggested changes, enhancements and new features; and

any other item directed and/or required by WeBill.

Without derogating from the generality of clause 6.2 of the Agreement, Pilot Partner will allow WeBill to access all mobile and web-modules deployed by the Pilot Partner during the Trial Period.

[insert any and all other requirements and obligations of Pilot Partner]