Subscription Agreement


SOFTWARE AS A SERVICE (SaaS) SUBSCRIPTION AGREEMENT


DATED


ENTERED INTO BETWEEN


The Social Collective (TSC)

AND

The Subscriber

WHEREAS:

  1. The Social Collective (TSC) provides a framework and database solution comprising a platform, framework, communication gateway and reporting monitoring and evaluation system for use by Subscribers which manage ESG (Environmental Social Governance/Integrated Reporting/Other) programmes, which includes any and all maintenance releases, new versions, updates, upgrades and other modifications thereto.
  2. TSC’s software helps Subscribers collect, store, manage and report on data collected.
  3. TSC intends to make the software, as well as the supporting services contemplated in the Quotation available to the Subscriber and accessible online via the Platform, and the Subscriber wishes to obtain a license to use the software in the conduct of the Subscriber’s development programme.
  4. The Parties wish to enter into an agreement whereby the Subscriber is entitled to use the software, for the purpose of tracking of and reporting on engagements, connections, development, outcomes, learning, employability and creating a database of Subscriber information, through the Services provided by TSC.
  5. This Agreement governs the access to and use by the Subscriber of the software and the Services provided by TSC pursuant to such access and use.

NOW, THEREFORE, The Parties hereto agree as follows.

    1. Definitions

      For the purposes of this Agreement, as the preamble above, unless the context requires otherwise:

      1. Account Data means any and all account and contact information submitted to the Services or inputted to the software by the Subscriber or Users;
      2. Administrators means any persons granted access to the administrative rights and privileges of the software by the Subscriber and/or TSC , which persons may have the ability to:
        1. access, disclose, restrict or remove Subscriber Data in or from Subscriber Accounts; and
        2. monitor, restrict, or terminate access to Subscriber Accounts;
      3. Agreement means this subscription agreement (which contains the general terms applicable to the purchase and use of the Services) and includes the Quotation with specific and binding terms agreed to between the Parties;
      4. Applicable Laws means, in relation to a Party, in respect of the Republic of South Africa, all and any of the following: (i) statutes, subordinated legislation and common law; (ii) regulations; (iii) ordinances and by-laws; (iv) directives, judgements and decisions of any competent authority, or any governmental, intergovernmental or supranational agency, body, department or regulatory, self-regulatory or other authority or organisation; and (v) other similar provisions from time to time, compliance with which is mandatory for that Party.
      5. Business Day means any day which is not a Saturday or Sunday; or statutory holiday in the Republic of South Africa;
      6. Commencement Date means the date indicated on the Quotation;
      7. Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in terms of clause 12;
      8. Consent means any voluntary, specific, and informed expression of will in terms of which a person gives permission for the Processing of their Personal Information.
      9. Consumer Protection Act means the Consumer Protection Act, 68 of 2008;
      10. CPI means the consumer price index for all urban areas as compiled and published monthly by Statistics South Africa or anybody authorised in its stead in terms of the Statistics Act No 6 of 1999, as amended, or any statute replacing the Statistics Act No 6 of 1999, to compile and publish national statistics;
      11. Data Subject means any natural or juristic person to whom the Personal Information relates;
      12. Delivery Schedule means the delivery schedule as recited in in the scope of Service;
      13. Documentation means any documents made available to the Subscriber by TSC online via the Platform or such other Platform address notified by TSC to the Subscriber from time to time which sets out a description of the Services and the user instructions for the Services;
      14. User means the users of the Subscriber’s Account including, but not limited to, any natural or juristic person(s) who are authorised by the Subscriber to use the Services;
      15. Fee Payment Schedule has the meaning ascribed to it in the Quotation;
      16. Implementation Fee means the once-off fee payable by the Subscriber to TSC in respect of the technical set-up of TSC’s software for use by the Subscriber, payable upon commencement of such technical set-up, the monetary amount of which is set out in the Quotation;
      17. IPR means all intellectual property rights of any nature throughout the world, including but not limited to copyrights, patents, Know-How, rights in trademarks and designs (whether registered or unregistered), trade secrets, trade names, Confidential Information, database rights, authors’ rights, and rights of attribution, applications for registration, and the right to apply for registration for any of the same, and any other proprietary rights and intellectual property rights and equivalent forms of protection existing anywhere in the world;
      18. Know-How means ideas, designs, documents, diagrams, information, devices, technical data, scientific data, secret and other processes and methods used in connection with the Platform and/or TSC’s business, and, all available information regarding marketing and promotion of the products and services of TSC, and, all and any modifications or improvements to any of its products and services which do not constitute entirely new products or services;
      19. License means the non-exclusive license to use TSC’s software granted to the Subscriber on the terms and subject to the conditions contained in this Agreement;
      20. Monthly Fee means the monthly pay-per-use fee payable by the Subscriber to TSC upon receipt of an invoice in respect of the provision of the Services, as per the Quotation;
      21. Operator means a person who Processes Personal Information for a Responsible Party in terms of a contract or mandate, without coming under the direct authority of that party. In this instance, TSC is the Operator in respect of Personal Information received through the Platform;
      22. Parties means each of TSC and the Subscriber, and Party shall mean either of them as the context may require;
      23. Personal Information means information relating to an identifiable, living, natural person and where it is applicable, to an identifiable, existing juristic person, including but not limited to:
        1. information relating to race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
        2. information relating to the education or the medical, financial, criminal or employment history of the person;
        3. an identifying number, symbol, email address, physical address, telephone number, location information, online identifier, or other particular assignment to the person;
        4. the biometric information of the person;
        5. the personal opinions, views or preferences of the person;
        6. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
        7. the views or opinions of another individual about the person; and
        8. the name of the person if it appears with other Personal Information relating to the person or if the disclosure of the name itself would reveal information about the person.
      24. Platform means the software, owned by TSC, to which this Agreement applies;
      25. POPIA means the Protection of Personal Information Act 4 of 2013;
      26. Process/Processing means any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including- the collection, receipt, recording, organization, collation, storage, updating or modification, retrieval, alteration, consultation or use; dissemination by means of transmission, distribution or making available in any other form, or merging, linking, as well as restriction, degradation, erasure or destruction of information;
      27. Rand or R means South African Rand, the lawful currency of the Republic of South Africa;
      28. Responsible Party means a public or private body or any other person which alone or in conjunction with others determines the purpose and means for Processing Personal Information. In this instance, the Subscriber is the Responsible Party in respect of Personal Information;
      29. Reverse Engineer means the process of extracting knowledge or design information from TSC’s software and/or the Services by disassembling and/or analysing TSC’s software in detail in order to discover the concepts involved in manufacture or development with a view to re-producing TSC’s software and/or reproducing anything based on such information extracted from TSC’s software or the Services.
      30. Quotation means the quotation with the scope of Services, including timing and cost of the subscription, and contains details of the Subscriber together with any additional terms agreed to between the Parties. For a valid Subscription, the Quotation must be accepted and payment must have been made according to the terms contained therein;
      31. Security Emergency means:
        1. use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services; and
        2. unauthorised third-party access to the Services.
      32. Services means the subscription services provided by TSC to the Subscriber via the indicated domain or any other domain notified to the Subscriber by TSC from time to time, as more particularly described in the Documentation including but not limited to access to and use of the software;
      33. Service Analyses means any statistical, historical or analytical information generated by TSC through the Processing of Subscriber data, reports and measurement monitoring and evaluation specifics together with usage information, security incidences and any other information relevant to the use of the software. All Service Analyses consists of de-identified information that cannot be used to identify any individual Subscriber and is used for the sole purpose of improving or upgrading the software and Services.
      34. Settings means the intangible area of the software which enables Administrators to perform the functions described in clause 1.1.5;
      35. Source Code means the source code of the software and shall include:
        1. All logic diagrams, flowcharts, protocols, orthographic representations, algorithms, routines, subroutines, utilities, modules, file structures, coding sheets, coding, script, listings, functional specifications and program specifications, executable code, specialised development tools, design documentation;
        2. Materials relating to that software (whether in the form of magnetic media or otherwise or whether in eye-readable or machine-readable form) necessary to enable a programmer to maintain, amend, modify, develop and enhance that software without reference to any other person or document, and including, without limitation, editors, compilers and linkers, and all normally available programmer's comments;
        3. All respective modifications, developments, changes, enhancements or revisions to all of the above as may be made from time to time; and
        4. All software Documentation, required by Subscriber Insure to maintain, enhance, modify, support and perpetuate the software.
      36. Special Personal Information means Personal Information concerning the religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex life or biometric information of a Data Subject; or concerning the criminal behaviour of a Data Subject to the extent that such information relates to the alleged commission of an offence by the Data Subject, or to any proceedings (or the disposal of any proceedings) in respect of any offence allegedly committed by the Data Subject;
      37. SSL means secure sockets layer, the standard security technology for establishing an encrypted link between a web server and a browser which link ensures that all data passed between the web server and browsers remains private and integral;
      38. Stored Data means any and all file and structured data submitted through the Services by the Subscriber or Users and which is stored in the cloud by TSC in accordance with TSC’s storage policies and procedures;
      39. Subscriber means the party entering into a Subscription Agreement with TSC and granted a license by the TSC in order to gain access to and use of the Services.
      40. Subscriber Account means the account of the Subscriber as registered on the software in accordance with TSC registration policies and procedures;
      41. Subscriber Data collectively means User Data, Account Data, Stored Data, measurement monitoring and evaluation specifics and reports;
      42. Subscription Fees means the total of the Implementation Fee and the Monthly Fee as set out in the Quotation;
      43. Term means the term of this Agreement, determined in accordance with clause 11.1 (Term and Termination) and the Quotation;
      44. Terms of Service means the Terms of Service as published by TSC on the Platform, as amended and supplemented from time-to-time;
      45. Third Party Request means a request received from a third party for records relating to a User's use of the Services including information in or from an User or the Subscriber’s Account, which may include search warrants, court orders, subpoenas, or any other request for which there is written Consent from the Users permitting a disclosure of the use of the Services;
      46. TSC means The Social Collective, a limited liability company registered under the laws of South Africa with registration number 2015/160496/07 and its business address at Unit 23, 17 owl Street, Braamfontein Werf, Johannesburg;
      47. TSC’s API means the application program interface, being a set of routines, protocols, and tools for building software applications that belong to TSC;
      48. UNCITRAL means the United Nations Commission on International Trade Law;
      49. Unauthorised Use means use of and access to TSC’s software and/or the Services which is contrary to the provisions of:
        1. this Agreement;
        2. any Applicable Laws; and/or
        3. the Terms and Conditions of Use;
      50. User Data means any data related to the Users which is collected by the Subscriber through the Services or submitted to the Services by the Subscriber or any User. This shall include information about third parties (either adults or children);
      51. Virus means anything or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software (including the software), hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
    2. Interpretation

      In addition to the definitions in clause 1.1, unless the context requires otherwise:

      1. the singular shall include the plural and vice versa;
      2. a reference to any one gender, whether masculine, feminine or neuter, includes the other two;
      3. any reference to a natural person includes an juristic person and vice versa;
      4. any word or expression defined in and for the purposes of this Agreement shall if expressed in the singular include the plural and vice versa and a cognate word or expression shall have a corresponding meaning;
      5. references to a statutory provision include any subordinate legislation made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Agreement or any transaction entered into in accordance with this Agreement;
      6. references in this Agreement to clauses, sub-clauses and Schedules are to clauses and sub-clauses of, and schedules to, this Agreement;
      7. no rule of construction shall be applied to the disadvantage of a Party to this Agreement because that Party was responsible for or participated in the preparation of this Agreement or any part of it;
      8. unless otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day; and
      9. all the headings and subheadings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpreting it.
  2. Provisions of the Consumer Protection Act
    1. The provisions of this Agreement contain assumptions of risk and/or liability by the Subscriber and limit and exclude liabilities, obligations and legal responsibilities, which TSC will have towards the Subscriber and other persons. These provisions also limit and exclude the Subscriber’s rights and remedies against TSC and place various risks, liabilities, obligations and legal responsibilities on the Subscriber. These provisions may result in the Subscriber being responsible for paying additional costs and amounts and TSC may also have claims and other rights against the Subscriber and the Users.
    2. To the extent that any services or goods provided under this Agreement are governed by the Consumer Protection Act, no provision in this Agreement is intended to contravene the applicable provisions of the Consumer Protection Act, and therefore all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure compliance with the applicable provisions of the Consumer Protection Act.
    3. Please read the provisions of this Agreement carefully. The Subscriber’s acceptance of the terms of this Agreement will constitute its agreement to comply with the provisions contained herein. If the Subscriber, Users and/or its representatives do not agree with these provisions, please do not accept this Agreement.
  3. How this Agreement is Formed
    1. If the Subscriber clicked “I accept” or similar on the Platform, then the following provisions apply:
      1. The Subscriber will only be eligible to place an order for and use any of the Services and the Documentation if it meets the following eligibility requirements, as applicable:
        1. if the Subscriber is an individual, the Subscriber must be at least 18 (eighteen) years old and have the legal capacity to conclude legally binding contracts; or
        2. if the Subscriber is a company, corporation or some other form of legal entity, the individual placing an order for the Services and the Documentation, and/or accepting this Agreement on the Subscriber’s behalf must be at least 18 (eighteen) years old, have the legal capacity to conclude legally binding contracts, and be duly authorised to conclude contracts on the Subscriber’s behalf.
      2. If the Subscriber and, in the case of clause 3.1.1.2 above, such representative, do not meet the aforesaid eligibility criteria, the Subscriber may not place an order with TSC for the provision of Services and Documentation. By placing such an order, the Subscriber and, in the case of clause 3.1.1.2 above, each of the Subscriber and the representative (as applicable), warrant that they have contractual capacity to enter into this Agreement and meet the above eligibility criteria.
      3. The Quotation sets out the steps that the Subscriber needs to take to place an order with TSC. The order process allows the Subscriber to check and amend any errors before submitting its order to TSC.
      4. The Subscriber’s order constitutes an irrevocable, unconditional and binding offer to TSC by the Subscriber to purchase the specified Services and the right to use the attendant Documentation from TSC (unless and to the extent required otherwise under Applicable Law). After the Subscriber places an order, the Subscriber will receive an email from TSC acknowledging that it has received the order. It is hereby recorded that this email does not mean that the order has been accepted and, for the avoidance of doubt, TSC is under no obligation to accept any such offers made by the Subscriber to purchase its Services and Documentation. TSC’s acceptance of the Subscriber’s order will take place as described in clause 3.1.5.
      5. TSC will confirm its acceptance of the Subscriber’s order to the Subscriber by sending, signing and returning this Agreement together with the completed Quotation.
    2. If the Subscriber has not signed and returned (via email); or clicked “I accept” or similar on the Platform then the following provisions apply:
      1. this Agreement shall become binding and take effect upon signature by both Parties provided that:
        1. if the Subscriber is an individual, the Subscriber must be at least 18 (eighteen) years old and have the legal capacity to conclude legally binding contracts; or
        2. if the Subscriber is a company, corporation or some other form of legal entity, the individual placing an order for the Services and the Documentation, and/or accepting this Agreement on the Subscriber’s behalf must be at least 18 (eighteen) years old, have the legal capacity to conclude legally binding contracts, and be duly authorised to conclude contracts on the Subscriber’s behalf.
  4. User Subscriptions
    1. Subject to: (i) the Subscriber subscribing for a License contemplated in clause 3 (ii) the restrictions set out in this clause 4; and (iii) the other terms and conditions of this Agreement, TSC hereby grants to the Subscriber a non-exclusive, non-transferable, worldwide, limited and revocable right (without the right to sub-licence, except as expressly set out in the Quotation) to permit the User to access and use the Services and the Documentation for the duration of this Agreement solely for the Subscriber's internal business operations.
    2. The Services contemplated by this Agreement is expressly limited to the Subscriber’s use of the software in accordance with this Agreement.
    3. For the avoidance of doubt, it is specifically recorded that no right or license is being conveyed to the Subscriber to use the software other than as specifically contemplated in this Agreement and the Subscriber is prohibited from using the software in any manner other than on the terms and subject to the conditions contained in this Agreement and/or its Schedules.
  5. The Subscriber’s Obligations
    1. Compliance
      1. The Subscriber is responsible for use of the Services by its Users and will ensure that both the Subscriber and its Users will use the Services in compliance with the Terms of Service.
      2. The Subscriber will obtain from the Users any Consents necessary in order to enable the Administrators to engage in the activities described in this Agreement, and any activities incidental thereto, and to allow TSC to provide the Services.
      3. The Subscriber will comply with all laws and/or regulations applicable to the Subscriber’s use of the Services.
    2. Subscriber Administration of the Services
      1. The Subscriber undertakes that the maximum number of Users that it authorises as Administrators to access and use the Services and the Documentation through the Settings shall not exceed the number of User Subscriptions it has purchased from time to time.
      2. The Subscriber is responsible for:
        1. maintaining the confidentiality of login details (including usernames and passwords) and Administrator accounts;
        2. managing access to Administrator accounts; and
        3. ensuring that Administrators' use of the Services complies with this Agreement.
      3. The Subscriber is responsible for the internal management or administration of the Services during the Term of this Agreement.
    3. Unauthorised Use and Access
      1. The Subscriber will use all its reasonable endeavours to prevent any Unauthorised Use of the Services by the Users and shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify TSC.
      2. The Services are not intended for any Users or Subscriber (as the case may be) under the age of 18 (eighteen) years and who do not have the legal capacity and /or authority to conclude legally binding contracts. The Subscriber will ensure that it and its Administrators do not allow any person under the age of 18 (eighteen) years to use the Services.
      3. In the event that the Subscriber becomes aware of any Unauthorised Use by the Users or any other person, the Subscriber shall promptly notify TSC of such Unauthorised Use and immediately terminate such Unauthorised Use.
    4. Restricted Uses
      1. The Subscriber will not, and will procure that no User will:
        1. access, store, distribute or transmit any Viruses, nor any material during the course of its use of the Services, nor use or permit the use of the Services or the Documentation that: (i) is unlawful, harmful, threatening, false, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (vi) violates privacy rights or promote bigotry, racism, hatred or harm; (vii) is otherwise illegal or causes damage or injury to any person or property; or (viii) infringes any third party’s IPR;
        2. except as may be allowed under any Applicable Laws which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, reproduce, adapt, merge, vary, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software and/or the Documentation (as applicable), or any output thereof, in any form or media or by any means; or (ii) access all or any part of the Services or the Documentation in order to build a product or service which competes with the Services and/or the Documentation; or (iii) perform or disclose any benchmark or performance tests of the Services, including the software, and the Documentation; or, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, except making them available to the Users in accordance with this Agreement; or (v) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; or (vi) reverse look-up, trace or seek to trace any information including Personal Information on any other user of the Services, or any other customer or Subscriber of TSC.
        3. use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or
        4. Reverse Engineer the Services and/or the software, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by Applicable Laws.
  6. Intellectual Property
    1. The Parties acknowledge and agree that Intellectual Property Rights shall be assigned as follows:

      General

      1. The Subscriber and TSC agree that User Data, Account Data, Stored Data, measurement monitoring and evaluation specifics and reports will remain the property of the Subscriber (Subscriber Data). The Subscriber acknowledges and agrees that TSC owns all IPR in and to the Services (including but not limited to the software, Source Code and Documentation, in providing the Services to the Subscriber and any modifications of any of those and derivative works created using any of those. Ownership of IPR between TSC and the Subscriber shall be solely governed by this Subscription Agreement.
      2. The Parties agree not to disclose any information whatsoever to any person relating to this Agreement or the IP, technology and associated data of both Parties.
      3. The Subscriber shall grant to TSC all permissions that are reasonably necessary for TSC to offer the Services to the Subscriber (by way of example, but without limiting the generality of the aforegoing, hosting Stored Data) (the Permission). The Permission extends to trusted third parties that TSC works with in order to provide the Services (by way of example, but without limiting the generality of the aforegoing, SMS, email, payment gateways and partner gateways or services).
      4. The Subscriber shall keep TSC indemnified in full against any sums awarded by a court against TSC as a result of or in connection with any claim brought against TSC for infringement of a third party's rights (including any IPR) arising out of, or in connection with, the receipt or use of Subscriber Data by TSC.
    2. In addition to the provisions of this Clause 6 and 12 (Confidentiality), TSC shall require written Consent from the Subscriber to include the Subscriber's name in a publicly available list of TSC’s customers, that may appear on amongst other things TSC’s Platform or promotional materials.

      Services and Documentation

      1. TSC owns all IPR in and to the Services (including but not limited to the software) and the Documentation. This Agreement does not grant the Subscriber any rights in or to any of the IPR of TSC, or any other rights or licences in respect of the Services or the Documentation.

      Deliverables

      1. The Subscriber shall own any deliverables produced by TSC at the request of the Subscriber in providing the Services to the Subscriber, together with any derivative works created using any such deliverable.
        1. The Subscriber grants TSC an irrevocable, fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable license to use any such deliverables for the further development of the Services and the software.

      Modifications

      1. TSC shall own any modifications produced by TSC at the request of the Subscriber in providing the Services to the Subscriber.
        1. TSC grants the Subscriber an irrevocable, fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable license to use any such modifications for the further development of the Services and the software.
      2. TSC may, at its discretion and for any purpose, use, modify, and incorporate into its products and Services, license and sublicense, any feedback, comments, or suggestions that the Subscriber or Users send to TSC without any obligation to the Subscriber.

      Data

      1. User Data, Account Data, Stored Data, measurement monitoring and evaluation specifics and reports will remain the property of the Subscriber (Subscriber Data);
      2. The Subscriber hereby grants TSC a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use the Subscriber Data for the purpose of fulfilling its obligations in terms of this Agreement for the Term.

      Service Analyses

      1. The Subscriber grants TSC a worldwide, non-exclusive, royalty-free, transferable right to access, use, Process and/or modify Subscriber Data, for the Term and thereafter in perpetuity in a de-identified form to: (i) improve any of TSC’s software, products and services; and (ii) provide any services, including the Services, to the Subscriber; and (iii) compile statistical and other information related to the performance, operation and use of the Services and the Documentation and of any equipment, machinery or other assets managed using the Services; and (iv) use in reports in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes, (the outputs of the aforementioned activities hereinafter being collectively referred to as Service Analyses).
      2. TSC may make Service Analyses publicly available; however, Service Analyses will not incorporate User Data and Subscriber Data, measurement monitoring and evaluation specifics and reports or Confidential Information in a form that could serve to identify the Subscriber or any individual (including but not limited to any User), and Service Analyses do not constitute Personal Information. All IPR in and to the Service Analyses and related or derivative works shall vest in TSC.
  7. Services
    1. Use of the Services

      The Subscriber and the Users (as the case may be) may access and use the Services only in accordance with this Agreement.

    2. Facilities, data protection and data processing
      1. TSC, in providing the Services, shall comply with all Applicable Laws relating to the privacy and security of the User Data.
      2. TSC shall Process the Personal Information only in accordance with the terms of this Agreement and/or the Subscriber's instructions from time to time and shall not Process the Personal Information for any purposes other than those expressly authorised in terms of this Agreement and/or otherwise by the Subscriber.
      3. The Subscriber agrees that TSC may transfer, store, and Process the User Data in locations other than the Subscriber’s country.
      4. TSC hereby certifies that it adheres to SSL (https) and the principles associated therewith.
      5. The Subscriber warrants that all relevant third parties have been informed of, and have given their Consent to, such use, Processing, and transfer for the purpose of Processing of any User Data by TSC as required by all Applicable Laws and undertakes, at its sole expense, to ensure that all future third parties will be informed of, and the Subscriber will obtain the Consent from such third parties for the use, Processing and transfer as required by all Applicable Laws.
      6. The Subscriber shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data and User Data.
      7. The Subscriber shall take reasonable steps to ensure that all of its Users who have access to the Personal Information are subjected to appropriate confidentiality and non-disclosure requirements.
      8. The Parties acknowledge that for the purposes of the POPIA and any other applicable privacy or data protection law, the Subscriber is the Responsible Party and TSC is the Operator in respect of any Personal Information.
      9. TSC shall take appropriate, reasonable technical and organisational measures to: (a) secure the integrity and confidentiality of any Personal Information that it Processes; and (b) prevent: (i) the loss of, damage to or unauthorised destruction of Personal Information; and (ii) unlawful access to or Processing of Personal Information; in accordance with section 19 of POPIA.
      10. TSC shall and shall procure that its representatives Processing any Personal Information on behalf of TSC shall: (i) Process such information only with the knowledge or authorisation of the Subscriber, which the Subscriber hereby grants to TSC in relation to all the Subscriber’s Data (including all User Data and Subscriber Data); and (ii) treat Personal Information which comes to its or its representatives’ knowledge as confidential and shall not disclose it; in accordance with section 20 of POPIA.
      11. Each Party agrees to indemnify and keep indemnified and defend at its own expense the other Party against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable due to any failure by the first Party or its representatives to comply with any of its obligations under this clause 7.
      12. The Subscriber acknowledges that TSC is reliant on the Subscriber for direction as to the extent to which TSC is entitled to use and Process the Personal Information provided by the Subscriber, its representatives and any User, including but not limited to any User Data. Consequently, TSC will not be liable for any claim brought by a Data Subject arising from any action or omission by TSC, to the extent that such action or omission resulted directly from the Subscriber’s instructions or lack thereof. The Subscriber may provide specific Processing instructions to TSC.
    3. Modifications to the Services

      TSC may update the Services from time to time. If TSC modifies the Services in a manner that materially reduces their functionality, TSC will inform the Subscriber of such modifications via the email address associated with the Subscriber’s account on the software and may, in TSC’s sole discretion, offer the Subscriber pro rata Subscription Fees. The Subscriber may have the right to terminate or renegotiate the agreement, if the reduced functionality is proven to reduce programmatic outcomes and no agreement can be reached after considering alternate options.

  8. Implementation, Training and Acceptance
    1. TSC shall implement the Services on a subdomain or custom domain of the Subscriber in accordance with the Setup instruction in the Quotation. At the time of such implementation, TSC shall provide the Subscriber with appropriate Documentation for the Services (in a form reasonably acceptable to the Subscriber) and the relevant training manuals available online.
    2. At the time of implementation of the Services and for no additional consideration, TSC shall provide 2 hours of training to at least 2 (two) employees of the Subscriber in the use of the Services online through any platform or means that TSC deems appropriate.
    3. Subsequent to the implementation of TSC’s software, TSC agrees to provide additional training to the Subscriber's employees for an Additional Training and Certification Fee, as more fully described in the Quotation.
    4. In the event that the Subscriber fails to notify TSC of any difficulties or problems with the Services within 30 (thirty) days after installation thereof, the Subscriber shall be deemed to have accepted the Services as provided. Prior to acceptance of such Services, TSC shall have the right to repair or replace the Services at its discretion. Upon acceptance of such Services, TSC shall be under no obligation to repair or replace the Services except as provided for in clause 13 (Warranties).
  9. Support

    TSC will offer its standard technical and training support for the Term. Such technical training and support shall be limited to an agreed upon amount of time as agreed by the Parties. In addition to the aforegoing:

    1. TSC shall use commercially reasonable endeavours to make the Services available 24 (twenty four) hours a day, 7 (seven) days a week, except for: (i) planned maintenance scheduled by TSC from time to time on no less than 7 (seven) days’ notice to the Subscriber; and (ii) unscheduled maintenance, provided that TSC has used reasonable endeavours to give the Subscriber at least 6 (six) hours’ notice in advance.
    2. Technical support covers access and ‘up-time’ of the system, related to servers, and having access to the database through the domain cited in the Quotation. Support queries are to be emailed to hello@thesocialcollective.co and TSC undertakes to respond within 24 (twenty four) hours if such support query is received on a Business Day. Should such support query be received on a day which is not a Business Day, TSC undertakes to respond within 24 (twenty-four) hours from the commencement of the first Business Day following receipt of such support query (it being recorded that for the purposes of this clause 9.2, a Business Day will be deemed to have commenced at 09h00 on that day).
    3. Training support and materials will be provided, electronically, to the Subscriber only for the purposes of distribution to Users and Administrators internally.
    4. Training will be provided to ensure that the Subscriber can manage the platform and its functions as an Administrator independently from TSC. TSC shall provide all necessary training materials to any other employees of the Subscriber, who have not received training in terms of clause 8.2, and a certified assessment is available for such employees should the Subscriber so require. The information relating to such certified assessment and the fees associated therewith is more fully described in the Quotation or can be requested. The implementation of such certified assessment shall be agreed to in writing by the Parties.
    5. The Subscriber may make changes or updates to the Services and/or software (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, and patterns of system use. The Documentation is subject to change at TSC’s discretion; however, TSC’s changes to the Documentation will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Subscriber for the duration of the Term.
  10. Fees and Payment
    1. General

      The Subscriber agrees to pay the fees as set out in Quotation and agrees that such fees are non-refundable except as required by the Consumer Protection Act, 2008.

    2. Taxes
      1. The Subscriber is responsible for all taxes which may be levied in relation to the Services provided to the Subscriber in terms of this Agreement including value-added tax. TSC will charge tax when required to do so.
      2. If the Subscriber is required by Applicable Laws to withhold any taxes, the Subscriber must provide TSC with an official tax receipt or other appropriate documentation.
    3. Customisation Fees
      1. Customisation of and additional support in respect of TSC’s software, outside of the scope of the Services, which may be requested by the Subscriber shall be agreed upon by both Parties in writing.
      2. Any customisation and/or additional support outside the scope of the Services required by the Subscriber shall be invoiced and paid for separately in addition to the fee for the Services.
      3. Any additional customisation required by the Subscriber shall be agreed to in writing by the Parties and billed separately from the Subscription Fees and shall be invoiced by TSC on commencement of the implementation of such customisation.
      4. With the exception of the limited customisation provided for in the Quotation, any other customisation requested by the Subscriber in terms of clause 10.3.3, shall be quoted separately and billed by TSC at an hourly rate.
    4. Fees
      1. Fees are payable to the account provided for in the Quotation.
      2. The Implementation Fee is payable upon commencement of the technical set up of the Services by TSC for the Subscriber.
      3. The Subscriber shall pay the Monthly Fee (and customisation fee contemplated in clause 10.3, if applicable) upon receipt of an invoice issued by TSC to the Subscriber, but in no event later than the last Business Day of each calendar month.
      4. The Subscriber shall pay all fees contemplated in this clause 10.4 to TSC without any set-off or deduction and in accordance with this clause 10.
      5. If TSC has not received payment within 1 (one) day after the due date, and without prejudice to any other rights and remedies of TSC:
        1. TSC may, without liability to the Subscriber, disable the Subscriber’s, Administrators and all the Users’ passwords, accounts and access to all or part of the software and/or Services and TSC shall be under no obligation to provide any or all of the Services while the amount(s) concerned remain unpaid; and
        2. interest shall accrue on such due amounts at an annual rate equal to 3% (three percent) above the then current base lending rate of TSC’s bankers in the Republic of South Africa at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
      6. All fees and other amounts payable by the Subscriber under this Agreement shall escalate automatically on the 1st of March every year in accordance with Consumer Price Index. In addition, TSC shall be entitled to increase the fees contemplated in this clause 10.4 and/or any other fees or amounts payable in accordance with this Agreement, on a bi-annual basis by an additional amount not exceeding 6% (six percent) of the then-current amounts payable, upon 30 (thirty) days' prior notice to the Subscriber. Should the Subscriber not accept such increase in fees it shall be entitled to terminate this Agreement upon 30 (thirty) days written notice to TSC.
  11. Term & Termination
    1. Term

      This Agreement will remain in effect until the Subscriber’s subscription to the Services expires or terminates, or until the Agreement is terminated in accordance with its terms.

    2. Termination for Breach
      1. Either Party shall be entitled to terminate this Agreement summarily if (i) the other party commits a material breach of its obligations and, provided the breach is capable of being remedied, fails to remedy the breach within 30 (thirty) days of receiving written notice to do so or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days of institution thereof.
      2. Neither Party’s remedies under clause 11.2.1 shall be exhaustive and each such remedy shall be in addition and without prejudice to any of the remedies which the Party may have whether or not expressly provided for in this Agreement.
      3. The cancellation or termination of this Agreement for any reason shall be without prejudice to any obligation by either Party to the other which shall have accrued and become owing at the time of the cancellation or termination.
    3. Effects of Termination

      If this Agreement terminates for any reason whatsoever:

      1. the rights granted by TSC to the Subscriber will cease immediately (except as set forth in this clause 11.3);
      2. TSC may provide the Subscriber access to its account at then-current fees so that the Subscriber may create copies of its Subscriber Data; and
      3. after 30 (thirty) days, TSC shall be entitled to delete any and all Subscriber Data relating to the Subscriber's account.
    4. The following clause will survive the expiration or termination of this Agreement: 1 (Intellectual Property Rights), 10 (Fees & Payment), 11.3 (Effects of Termination), 12 (Confidentiality), 14 (Indemnity), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Disputes), 24 (Third Party Requests), and 27 (Miscellaneous).
    5. This Agreement shall be renewable under review of the terms and developments and as agreed between the Parties in writing.
  12. Confidentiality
    1. The Subscriber recognises that the Services are the proprietary and confidential property of TSC and accordingly, the Subscriber shall not, without the prior express written consent of TSC, during the term of this Agreement and for 1 (one) year thereafter, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any Services provided by TSC, provided that such information was not previously known to the Subscriber or to the general public.
    2. The Subscriber further agrees to take all reasonable precautions to preserve the confidentiality of the Services and shall assume the responsibility that its employees, sub licensees, and assignees will similarly preserve this information against third parties.
  13. Warranties
    1. TSC represents and warrants that it has no actual knowledge that the software infringes any valid rights of any third party. This warranty is given in lieu of all other warranties, express or implied, that may arise either by agreement between the Parties or by operation of law.
    2. The Subscriber acknowledges and agrees that the software and the Documentation have not been developed to meet the Subscriber’s individual requirements, and that it is therefore the Subscriber’s responsibility to ensure that the software as described in the Documentation meet its requirements.
    3. In the event of a claim by the Subscriber in respect of the software, TSC shall have the option to either repair or replace the software. In the event that TSC fails to repair or replace the software within a reasonable period, the Subscriber's sole recourse shall be to terminate this Agreement and TSC's sole obligation shall be to return any Subscription Fees paid by the Subscriber during the term of this Agreement, provided that the amount of Subscription Fees which shall be repaid in terms of this clause 13.3 shall be calculated from the date on which TSC received and confirmed receipt of a support query, as detailed in clause 9.2. In no event shall TSC be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of this Agreement.
  14. Indemnity
    1. By the Subscriber

      The Subscriber hereby indemnifies, defends, and holds harmless TSC from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against TSC and any of its affiliates regarding:

      1. the Subscriber Data and any User Data;
      2. the Subscriber’s use of the Services in violation of this Agreement; or
      3. any User’s use of the Services in violation of this Agreement.
    2. By TSC
      1. TSC hereby indemnifies, defends, and holds harmless the Subscriber from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Subscriber that TSC's technology used to provide the Services to the Subscriber infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party.
      2. In no event will TSC have any obligations or liability under this section arising from:
        1. the use of any Services in a modified form or in combination with materials not furnished by TSC; and
        2. any content, information, or data provided by the Subscriber, Users, or other third parties.
    3. Possible Infringement
      1. If TSC believes that the Services infringe or may be alleged to infringe a third party's IPR, then TSC may:
        1. obtain the right for the Subscriber, at TSC’s expense, to continue using the Services;
        2. provide a non-infringing functionally equivalent replacement; or
        3. modify the Services so that they no longer infringe, in TSC’s sole discretion,
      2. provided that if the Licensor fails to procure such alternative mentioned in clause 14.3.1, the Licensee shall be entitled to cancel this Agreement by giving the Licensor 30 (thirty) days' written notice.
      3. If the Licensor does not believe the options described in clause 14.3.1 are commercially reasonable then the Licensor may suspend or terminate the Licensee's use of the affected Services (with a pro-rata refund of the License Fees for the Services).
    4. General
      1. The Party seeking indemnification (the Indemnified Party) will promptly notify the other Party (the Indemnifying Party) of the claim and cooperate with the Indemnifying Party in defending the claim. The Indemnifying Party will have full control and authority over the defence, except that:
        1. any settlement requiring the Indemnified Party to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and
        2. the Indemnified Party may join in the defence with its own counsel and at its own expense.
      2. The indemnities given in terms of this clause 14 are TSC and the Subscriber’s only remedy under this agreement for violation by the other party of a third party's IPR.
    D
  15. Disclaimers
    1. The Services are provided "voetstoots", to the fullest extent permitted by Applicable Laws, except as expressly stated in this agreement and neither the Subscriber nor TSC and its affiliates, suppliers, and distributors make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement.
    2. The Subscriber and TSC shall be responsible for maintaining and backing up any and all data submitted to and/or outputted by the software through the Subscriber’s use of the Services, including but not limited to any User Data and Subscriber Data.
  16. Limitation of Liability
    1. Limitation of Liability regarding internet transmissions

      The Subscriber acknowledges that internet transmissions are never completely private or secure and that any message or information sent using the Services may be read and intercepted by others, regardless of the fact that there may be a special notice that particular transmission is encrypted. The Subscriber agrees, to the fullest extent permitted by Applicable Laws that neither TSC and its affiliates, suppliers, and distributors will be liable under this Agreement for any loss caused by such interception.

    2. Limitation on Indirect Liability

      To the fullest extent permitted by Applicable Laws neither the Subscriber nor TSC and its affiliates, suppliers, and distributors will be liable under this Agreement for:

      1. indirect, special, incidental, consequential, exemplary, or punitive damages, or
      2. loss of use or data (in each case whether direct or indirect),

      even if the Party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.

    3. Limitation of Liability of the Licensor

      To the fullest extent permitted by Applicable Laws, TSC shall not be liable for any inaccuracies, errors, misrepresentations, or faults in any outputs generated by or through use of the Services or software. The Subscriber acknowledges and agrees that the outputs generated by or through use of the Services or the software are products of the Subscriber’s Data (including Subscriber Data and User Data). The Subscriber acknowledges that it should always seek professional advice before making any decision based on the outputs, and that TSC shall not be liable for any reliance placed on such outputs by the Subscriber, the Users or any third parties.

    4. Limitation on Amount of Liability

      To the fullest extent permitted by Applicable Laws, TSC’s aggregate liability under this Agreement will not exceed the lesser of (i) R10,000 (ten thousand Rand) and (ii) the amount paid by the Subscriber to TSC hereunder during the 12 (twelve) months prior to the event giving rise to liability.

  17. Disputes
    1. Informal Resolution

      The Parties hereby agree that should any dispute arise in relation to this Agreement, they shall first endeavour to resolve the dispute by contacting the other Party through the notice procedures in clause 18 (Notices). If such dispute is not resolved within 30 (thirty) days of receipt of written notice initiating the informal resolution procedure in terms of this clause 17.1, the Subscriber or TSC may proceed to resolve the dispute in terms of clause 17.2.

    2. Arbitration
      1. In the event of any dispute arising out of or relating to this Agreement, or the breach, termination or invalidity thereof then any Party may give written notice to the other Party to initiate the procedure set out below.
      2. The Parties shall first endeavour to settle the dispute by mediation.
      3. The Parties may agree on the mediation procedure and on the mediator and failing agreement within 5 (five) days of the notice referred to in clause 17.2.1, the mediation shall take place in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Model Conciliation Rules.
      4. If for any reason, including lack of cooperation by the Parties, a dispute is not settled by mediation within 30 (thirty) days of the notice referred to in clause 17.2.1, or such longer period of time as the Parties may agree to in writing, the dispute shall be settled by arbitration.
      5. The Parties may agree on the arbitration procedure and on the arbitrator and, failing agreement within 5 (five) days of the exhaustion of the period referred to in clause 17.2.4, the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
      6. The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa).
      7. Unless agreed otherwise, the mediation and the arbitration shall be administered by the Parties.
      8. The number of mediators shall be 1 (one) and the number of arbitrators shall be 1 (one).
      9. The place of the mediation and the arbitration shall be Cape Town, the Republic of South Africa.
      10. Nothing in this clause 17 shall preclude any Party from seeking interim and/or urgent relief from a Court of competent jurisdiction.
  18. Notices
    1. The Parties for the purposes of this Agreement the following addresses, email addresses and, for the purpose of any notices, designated officers:
      1. TSC

        Physical address:

        Unit 23, 17 Owl Street, Braamfontein Werf, Johannesburg

        email address: hello@thesocialcollective.co

      2. The Subscriber

        As set out in the Quotation.

    2. Any notice required to be given pursuant to this Agreement shall be emailed, return receipt requested or in the case of a notice to be sent by TSC to the Subscriber, TSC shall be entitled, but not obliged, to give such notice to the Subscriber via notification on the software to the Users making use of the software.
    3. Notwithstanding anything to the contrary in this clause 18, a written notice or other communication actually received by any of the Parties (and for which written receipt has been obtained) shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.
    4. Any Party may by written notice to the other Parties change its physical or postal address or email address for the purposes of clause 18.1 to any other physical or postal address or email address provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice.
  19. Jurisdiction and Disputes
    1. This Agreement shall be governed by the laws of the Republic of South Africa
    2. All disputes hereunder shall be resolved in the applicable courts of the Republic of South Africa. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defences otherwise available.
  20. Agreement Binding on Successors
    1. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto, and their heirs, administrators, successors, and assigns.
  21. Waiver

    No failure by a Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way a Party's right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.

  22. Severability

    If any provision of this Agreement, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

  23. Assignability
    1. The Subscriber may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of TSC. TSC may not assign this Agreement without providing notice to the Subscriber, except TSC may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets and/or shares without providing notice. Any other attempt to transfer or assign is void.
    2. The License granted hereunder is personal to the Subscriber and may not be assigned by any act of the Subscriber or by operation of law unless in connection with a transfer of substantially all the assets of the Subscriber or with the prior written consent of TSC.
  24. Third Party Requests
    1. The Subscriber is responsible for responding to Third Party Requests via its own access to information. The Subscriber will seek to obtain information required to respond to Third Party Requests and will contact TSC only if it cannot obtain such information despite diligent efforts.
    2. TSC will make commercially reasonable efforts, to the extent allowed by Applicable Laws and by the terms of the Third Party Request, to:
      1. promptly notify the Subscriber of TSC’s receipt of a Third Party Request;
      2. comply with the Subscriber’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and
      3. provide the Subscriber with information or tools required for the Subscriber to respond to the Third Party Request (if the Subscriber is otherwise unable to obtain the information). If the Subscriber fails to promptly respond to any Third Party Request, then TSC may, but will not be obligated to do so.
  25. Third-Party Services
    1. The Services may contain links to other independent third party Platforms (Third Party Sites). Third Party Sites are not under the control of TSC, and TSC shall not be responsible for, and does not endorse, the content or the privacy policies (if any) of such Third Party Sites and its administrators. The Subscriber will be solely responsible for making its own independent judgement regarding any interaction with any Third Party Sites, including the purchase and use of any products or services accessible through such Third Party Sites.
    2. The Subscriber acknowledges that should it use any third-party service (which includes but is not limited to a service that uses TSC API) with the Services:
      1. the agreement in relation to the use of any third-party service is between the Subscriber and such third-party;
      2. TSC will not be responsible for any act or omission of the third party, including the third party's access to or use of the Subscriber Data and any User Data; and
      3. TSC does not warrant or support any service provided by such a third party.
    3. If it is agreed between the parties that the software is to be hosted on the Subscriber’s servers as opposed to TSC’s servers, the Subscriber acknowledges that the software may be dependent on various supporting software (Supporting software). The Subscriber accepts that in order to use the software, the Subscriber will need to install and license such Supporting software. This Supporting software may be upgraded, added or removed from time to time, and the Subscriber will cooperate fully in this regard.
    4. While all Supporting software that forms part of the solution on a server architecture level is open source and does not require any additional licensing fees, there may be Supporting software from time to time that requires additional licensing fees, which fees shall be borne by the Subscriber in full.
  26. Suspension
    1. Of User Accounts by TSC
      1. violates this Agreement including any applicable obligation on the Subscriber under this Agreement; or
      2. uses the Services in a manner that TSC believes in its sole discretion (acting reasonably) will cause it liability, then TSC may request that the Subscriber suspend or terminate the applicable User account. If the Subscriber fails to promptly suspend or terminate the offending User account, then TSC may do so upon written notice to the Subscriber
    2. Security Emergencies

      Notwithstanding anything in this Agreement, if there is a Security Emergency then TSC is entitled to unilaterally suspend use of the Services.

  27. Miscellaneous
    1. Terms Modification

      TSC may revise this Agreement from time to time by notifying the Subscriber via the Platform and/or by means of an email with details of the change and/or notifying the Subscriber of a change when the Users next make use of any of the Services and/or the Documentation. If a revision, in TSC’s sole discretion, is material, TSC will notify the Subscriber (by, for example, sending an email to the email address set out in clause 18). Other revisions may be posted to TSC’s blog or terms page, and the Subscriber is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, the Subscriber agrees to be bound by the revised Agreement. If the Subscriber does not agree to the revised Agreement terms, the Subscriber shall be entitled to terminate the Services within 30 (thirty) days of receiving notice of the change.

    2. Entire Agreement

      This Agreement, together with TSC’s invoice , constitutes the entire agreement between the Subscriber and TSC with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will be controlled in the following order: the invoice, the Quotation and this Agreement

  28. No Agency

    TSC and the Subscriber are not legal partners or agents but are independent contractors.

  29. Force Majeure

    Except for payment obligations, neither TSC nor the Subscriber will be liable for inadequate performance to the extent caused by a delay caused by circumstances beyond the reasonable control of either Party including but not limited to acts of God, war, riots not instigated by TSC or the Subscriber civil insurrection, acts of the public enemy, acts of civil or military authority, fires, floods, earthquakes, or tempests. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations.

  30. No Third-Party Beneficiaries

    This is an agreement between the Parties only and no rights are stipulated for the benefit of any third party. For the avoidance of doubt and without limiting this clause 30, it is specifically recorded that the Subscriber’s Users are not third-party beneficiaries to the Subscriber’s rights under this Agreement.