Sudonum's Terms of Service
These Terms of Service (hereafter “Agreement” or “Terms”) comprises (1) Your Information (2) Terms of Service and (3) the SLA. “Sudonum”, “we”, “us”, “our”, will refer collectively to Sudonum (Pty) Ltd, 65 Webersvallei Road, Unit 8 WerkWinkel, Jamestown, 7600, South Africa, and the terms “you”, “your” and “Customer” will refer to you.
To be eligible to register for a Sudonum account in order to use the Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are registering for a Sudonum account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Sudonum that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Customer” will refer to that organization). The exception to this is if that organization has a separate written agreement with Sudonum covering the use of the Services, in which case that agreement will govern such use.
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND SUDONUM . IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU SHOULD NOT USE THE SERVICES.
Terms of Service
- 1.1 Sudonum offers a variety of services that make is easy to integrate specific communication services into software applications, including mobile, web-based and desktop applications. We provide the Services subject to the terms and conditions contained in this Agreement.
- 1.2 In an effort to make the Terms easy to understand, we have included a plain-language summary of most of the clauses in blue text, to the left of the legally binding provisions. Be aware that the blue text is NOT legally binding – only the black text is legally binding.
- 2.1 The following words or phrases have the meanings given to them below:
- 2.1.1 “Affiliate” in relation to any one of us means:
- 22.214.171.124 our holding company, the holding company(ies) of our holding company, and all of their direct and indirect subsidiaries;
- 126.96.36.199 and any other entities or persons over which any of those companies has direct or indirect control; and
- 188.8.131.52 any other entities or persons which have direct or indirect control over any of those companies,
- 184.108.40.206 and for the purposes of this definition “control” shall include de facto control, the ability to substantially influence the affairs of another person, and joint control with other persons;
- 2.1.2 “Agreement” means the agreement comprising Your Information, these Terms of Service, the SLA;
- 2.1.3 “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
- 2.1.4 “Commencement Date” means the date upon which you click “I Accept” or “Get Started” button or other mechanism provided when creating an account;
- 2.1.5 “Confidential Information” means any information of a confidential nature, or which a reasonable person would consider to be of a confidential nature, which has been or may be disclosed to, or obtained by, either of us to or from the other, whether before or after the Commencement Date and whether in writing or in electronic form or pursuant to discussions between us (or which can be obtained by examination, testing, visual inspection or analysis using otherwise confidential information), including without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions, ideas analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition;
- 2.1.6 “Customer” means the person (whether natural or juristic) specified as the Customer in your Information, together with its Affiliates from time to time;
- 2.1.7 “Customer Application” means a software application of yours that interfaces with the Services and includes any service (web-based or otherwise) made available by you through that application;
- 2.1.8 “Customer Data” means any data and information made available to us or otherwise coming into our possession through the use of the Services, the performance by us of our obligations under the Terms, or otherwise arising under or in connection with the Terms, including (without limitation) call records, audio recordings, SMS records and SMS message content;
- 2.1.9 “Credentials” means any combination of username or password or authentication token that permit access to the Services.
- 2.1.10 “Data Protection Legislation” means all data protection laws and regulations applicable in the Territory from time to time, including without limitation the Protection of Personal Information Act 4 of 2013, the Promotion of Access to Information Act 2 of 2000, and the Regulation of Interception of Communications and Provision of Communication-Related Information Act no 70 of 2002 (”RICA”);
- 2.1.11 “Documentation” means all of the Sudonum API instruction manuals, guides, code samples, on-line help files and technical documentation made available by us to enable you to use the Services;
- 2.1.12 “End User” means any end user of a Customer Application;
- 2.1.13 “Intellectual Property” means all intellectual property rights, howsoever arising and in whatever tangible or intangible form including (without limitation) patents, rights to inventions, utility models, copyright, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill, rights in designs, rights in computer software, database rights, domain names, topography rights, moral rights, business processes, rights in Confidential Information (including trade secrets and know-how) and any other intellectual property or proprietary rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
- 2.1.14 “Parties” means the parties to this Agreement, being you (the Customer) and us (Sudonum) and “Party” means either one of us, as the context may indicate;
- 2.1.15 “Personal Information” means information relating to an identifiable, living, natural person, and/or where it is applicable, an identifiable, existing juristic person, which is subject to protection under Data Protection Legislation from time to time;
- 2.1.16 “to Sign” means to physically execute in hard-copy or otherwise to indicate acceptance electronically (as contemplated by sections 12 and 24 of the Electronic Communications and Transactions Act, No. 25 of 2002), including without limitation, clicking the I ACCEPT button at the end of these Terms of Service, and “signing”, “signed” and “signature” shall have corresponding meanings;
- 2.1.17 "SLA" means the service level agreement applicable to the Services, contained in Schedule A;
- 2.1.18 “Sudonum API” means the application programming interface for the Services (or features of the Services) provided to you by us;
- 2.1.19 “Sudonum Properties” means, collectively, the Sudonum website, Sudonum API, Documentation and technical support made available by us to you in connection with the Services;
- 2.1.20 “Services” means the services provided by us to you, including programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by us, including without limitation the Sudonum APIs, the Documentation and any software provided to you in connection with your use of the Services;
- 2.1.21 “Usage Fees” means the fees payable by you to us in consideration for the provision of the Services as posted on our Website or otherwise provided or agreed to in writing, depending on the type of Service being used.
- 2.1.22 “Your Information” means the information provided by you about yourself (being the Customer).
3. COMMENCEMENT AND DURATION
These Terms apply to you from the moment you click accept or log in to any of our services and carry on until one of us terminates it because the other one has breached, or one of us terminates it on notice because we feel like it.
These Terms will take effect on the Commencement Date and shall continue indefinitely, unless:
- 3.1 terminated in accordance with the provisions of clause 13 (Breach); or
- 3.2 either one of us terminates the Terms and closes your Sudonum account(s) for any reason upon 30 (thirty) days written notice.
4. THE SERVICES
By using the Services, you are saying that you accept these Terms and the SLA. If anyone related to you (your Affiliate) uses the Services without signing a separate agreement with us, then we can hold you responsible for anything that your Affiliate does wrong. Your rights to use the Services are limited and temporary. Also, the features of the Services could change over time. It is your responsibility to keep abreast of those changes.
- 4.1 We will make the Services available to you in accordance with the Service Level Agreement (“SLA”).
- 4.2 Your Affiliates (if you have any) may request Services directly from us under this Agreement, provided that all of your Affiliate’s activities will be subject to the same Terms, and you will be entirely responsible for the acts and omissions of your Affiliates in connection with each Affiliate’s use of the Services.
- 4.3 We grant to you a non-exclusive, non-transferrable, revocable right and license to:
- 4.3.1 Use the Services, Documentation and the Sudonum APIs as needed to develop Customer Applications in accordance with our Acceptable Use Policy
- 4.3.2 Offer and make the Services available to your End Users in connection with the use of each Customer Application you create; and
- 4.3.3 Otherwise use the Sudonum Properties solely in connection with and as necessary for your activities hereunder.
- 4.4 You acknowledge that the features and functions of the Services, including the Sudonum APIs, may change over time. It is your responsibility to ensure that calls or requests that you make to the Services are compatible with then-current Sudonum APIs. Although we try to avoid changes to the Sudonum APIs that are not backwards compatible, if any such changes become necessary we will notify you at least 30 (thirty) days prior to implementation of that change, and we will provide you with the information you will require in order to continue to use the Services.
5. UNDERTAKINGS BY YOU
Keep your Sudonum credentials secret. You (not us) are responsible for all activity on your Sudonum account. If you think someone is using your account without permission, tell us straight away. Do not share Customer Data with us unless you have permission to do so. You are not allowed to use the Services in a way that breaks the law, our Acceptable Use Policy explain this best. Only you, your Affiliates and your End Users may use the Services. Don’t try to on-provide the Services to others.
- 5.1 You acknowledge that it is your responsibility to keep your credentials secret and secure, and you undertake to do so.
- 5.2 You are responsible for all use of the Sudonum API and the Services under your account/s. You are also responsible for the quality and integrity of your Customer Data and for each Customer Application. In addition, you are solely responsible for all use and for all acts and omissions of your End Users. You must take all reasonable precautions to prevent unauthorized access to or use of the Services and you agree to notify us of any unauthorized access or use as soon as you become aware of it. Sudonum will not be liable for any loss or damage arising from unauthorized use of your account.
- 5.3 You must ensure that we are entitled to use your Customer Data, including the content of communications, as is necessary in the provision of the Services and as otherwise contemplated in this Agreement.
- 5.4 You agree to use the Services in accordance with our Acceptable Use Policy. If you do not, you will be in material breach of the Terms, and we shall have the right (without prejudice to any other rights we may have) immediately to suspend the provision of the Services to you.
- 5.5 You acknowledge that your rights in terms of this Agreement are personal to you and that we do not and have not granted you any rights to transfer, sub-licence, on-sell or on-provide the Services to any person or entity other than your End Users. If you do transfer, sub-licence, on-sell or on-provide the Services, or attempt to do so, you will be in material breach of this Agreement, and we shall have the right (without prejudice to any other rights we may have) immediately to suspend provision of the Services to you.
6. USAGES FEES, PAYMENT TERMS & FEES
The cost of the Services that you want will appear posted on our website or otherwise provided or agreed to in writing, depending on the type of Service being used. We’ll invoice you monthly for previous month’s costs. Our invoices are payable on 15 days – please pay on time, because if you pay late we’ll charge interest and we will suspend the Services until you pay. If you think we’ve overcharged you, you have 30 days to query it with us – but you still need to pay the whole invoice. We’ll issue you with a credit for anything that we have overcharged.
- 6.1 Provision of the Services will be charged to you at the Usage Fees posted on our website or otherwise provided or agreed to in writing, depending on the type of Service being used.
- 6.2 You agree to make timeous payment of the Usage Fees in accordance with this Agreement.
- 6.3 Unless alternative payment terms are specified in a particular Statement of Work, we will issue you with a tax invoice within 5 (five) days after month end for the Usage Fees due by you in respect of the prior month. Each invoice is payable within 15 (fifteen) days following the date of such invoice. By way of example, we shall invoice you by 2 June for all Usage Fees due in respect of the previous month (being May).
- 6.4 Any amount not paid on due date shall bear interest at the Prime Rate plus 2%, calculated for every day that payment is outstanding and compounded monthly in arrears, commencing on the payment due date and ending on the date of actual payment. Our right to charge interest on late payments is in addition to any other rights we may have.
- 6.5 If you dispute any portion of any Usage Fees payable by you under this Agreement, you:
- 6.5.1 must notify us of the dispute within 30 (thirty) days after receipt of the invoice in question; and
- 6.5.2 are nevertheless obliged to make payment of the disputed invoice in full on due date, pending resolution of the dispute.
- 6.6 If the dispute is eventually resolved in your favour, we will issue you with a credit for the amount that you have overpaid.
- 6.7 Where you notify us of a disputed amount within the time period referred to above, we will consult with you to resolve the dispute as soon as possible, it being agreed that where the disputed amount exceeds 5% of the total invoice value, the dispute may be referred to dispute resolution as provided for in clause 18.
- 6.8 Once the 30 (thirty) day period referred to in clause 6.5.1 has expired, you will no longer be entitled to dispute any part of the invoice concerned.
7. CHANGES TO THE TERMS
These terms might change. But we’ll send you an email and let you know before we make any significant changes that impact you or your use of our services. If you keep using our services after the terms change, then you have accepted those changes. No pressure. Be aware that one of the changes we could make is to increase the costs of the Services.
- 7.1 You acknowledge and agree that these Terms may be subject to change by us. These changes could include increases in the Usage Fees.
- 7.2 If we are going to make any changes to any part of the terms we will provide you advance notice. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.
8. SUSPENSION AND TERMINATION OF SERVICES
There are times when we can legitimately suspend or terminate the Services. For example, if you do something wrong under these terms, if you don’t pay us on time or if we think you’re breaking the law. Depending on the reason we’ll try to give you advance warning, but in some cases you won’t get any warning. We can also suspend the Services so we can conduct maintenance and upgrades. In that scenario, we’ll do our best to keep disruption to a minimum.
- 8.1 We are entitled, without prejudice to any other rights we may have, to suspend the provision of the Services to you:
- 8.1.1 if you are in breach of any of our terms (other than clause 5.4 and/or clause 9), and/or any other of our policies applicable to your use of the Services and incorporated by reference into this Agreement, and you have not rectified your breach within 7 (seven) days of us calling upon you in writing to do so;
- 8.1.2 immediately, if you are in breach of your obligations in terms of clause 5.4 and/or clause 9;
- 8.1.3 immediately if we have reason to believe that your use of the Services, or the traffic created from your use thereof, is fraudulent or negatively impacting the operating capability of the Services;
- 8.1.4 immediately if we determine, in our sole discretion, that providing the Services is prohibited by law; or
- 8.1.5 if you have not paid any amount due after receipt of a notice from us requiring you to do so, in which case Services may be suspended until the outstanding Usage Fees have been paid
- 8.1.6 on 7 (seven) days written notice to you, if we determine in our sole discretion that it has become impractical or unfeasible for any legal or regulatory reason to continue to provide the Services;
- 8.2 We are further entitled to suspend the provision of the Services for upgrading or maintenance (“Planned Maintenance”). If we need to do this, we will give you reasonable advance notice of the planned suspension. We will use our best efforts to undertake Planned Maintenance outside of business hours and will use reasonable efforts to ensure that any disruption to the Services, to your use thereof, and/or to your business activities, is kept to a minimum.
9. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
Before we can work with you, we need you to confirm a couple of things. You promise that there’s nothing preventing you from entering into the Agreement; you won’t do anything illegal; you’ve got all the permissions you need to conduct your business; you’ll behave in good faith towards us; and you won’t do anything which blackens our name in the market. Finally, if anyone comes after us because of something you’ve done, you need to make good any losses we might suffer because of that.
- 9.1 You warrant, represent and undertake that:
- 9.1.1 you are fully authorised to accept these terms;
- 9.1.2 you shall not do anything illegal or engage in any illegal or fraudulent business practice;
- 9.1.3 you have obtained all required legal, regulatory and governmental approvals, licences, consents and permits in relation to the performance of your obligations under these terms;
- 9.1.4 you shall exercise good faith in all of your dealings with us; and
- 9.1.5 you shall not do anything, and you shall use reasonable commercial endeavours not to allow any act to be done, which does or is likely to prejudice the good name, reputation and business practice of Sudonum.
- 9.2 Any breach of the warranties given by you in this clause 9 and/or elsewhere in this Agreement shall be deemed to be a material breach of this Agreement entitling us, in addition to and without prejudice to any other rights we may have in law or under this Agreement, to cancel this Agreement.
- 9.3 You hereby indemnify and hold us harmless against claim, loss or damage arising out of or relating to your activities under this Agreement or your acts or omissions in connection with the provision of Customer Applications, including, without limitation, any intellectual property claims relating to Customer Applications and/or any violation by you or your End Users of the terms of clause 6.
10. INTELLECTUAL PROPERTY
When it comes to ideas, knowledge and data (what lawyers call Intellectual Property or IP), what’s ours is ours and what’s yours is yours, and that won’t change unless we make a separate agreement for that. We won’t make any claims on your IP, and you mustn’t make any claims on ours – that includes tampering with our software to get at the source code. Please don’t do that. If one of us needs help getting its IP registered in its name, the other one will do what it can (within reason). If in terms of law your IP is transferred to us (it can happen), we’ll do what we can to transfer your IP back to you, and vice versa. Neither of us may use the other’s name and branding except in the implementation of this Agreement, and always in accordance with the owner’s instructions.
- 10.1 Each of us shall, for the duration of this Agreement, retain the Intellectual Property rights that vested in us (or in our licensors or vendors) prior to the Commencement Date.
- 10.2 Unless expressly agreed otherwise in writing:
- 10.2.1 you acknowledge that any and all of the Intellectual Property rights developed and/or created by us (Sudonum) in connection with the Services, the Sudonum Properties and/or this Agreement generally, including any enhancements or adaptations thereto, are and will remain Sudonum’s sole and exclusive property; and
- 10.2.2we (Sudonum) acknowledge that any and all of the Intellectual Property rights developed and/or created by you in connection with the development of the Customer Application, including any enhancements or adaptations thereto, are and will remain your sole and exclusive property.
- 10.3 Neither of us shall question or dispute the other’s ownership of its Intellectual Property rights at any time during the continuation in force of the Agreement or thereafter.
- 10.4You agree not to reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive, the source code of any software provided in connection with the Services, without our prior written consent.
- 10.5 If by operation of law or otherwise one of us acquires any rights in the Intellectual Property of the other, the acquiring Party hereby cedes, assigns and transfers such Intellectual Property rights to the other Party.
- 10.6 Neither of us shall question or dispute the other’s ownership of its Intellectual Property rights at any time during the continuation in force of the Agreement or thereafter.
- 10.6.1be subject at all times to the instructions, standards and specifications of use issued by Sudonum from time to time; and
- 10.6.2terminate upon termination of this Agreement, in which event the Customer shall have no further right, title or interest in the Intellectual Property of Sudonum.
11. DATA PROTECTION
- 11.1 Each of us understands that in the performance of our obligations under this Agreement, Sudonum may be exposed to the Customer Data, and you (the Customer) may be exposed to data belonging to or possessed by us or our Affiliates (“Sudonum Data”).
- 11.2 Sudonum Data shall at all times remain our property, and Customer Data shall at all times remain your property.
- 11.4 Neither of us shall disclose the data of the other to any third party (unless otherwise provided for in these Terms). However, you acknowledge and agree that we may access or disclose Customer Data, including the content of communications:
- 11.4.1 to protect the security or integrity of our services and products;
- 11.4.2 to protect ourselves, our other customers, or the public from harm or illegal activities; or
- 11.4.3 if we are required to do so by an order of court or in terms of any applicable law;
- 11.4.4 to respond to an emergency which we believe in good faith requires us to disclose Customer Data so as to help prevent a death or serious bodily injury.
- 11.5 We shall use the Customer Data, and you shall use the Sudonum Data, only for the purposes of and in compliance with these, and for no other purpose whatsoever.
- 11.6 Neither of us shall have or claim any lien or other right against or to the other Party’s data. Neither of us shall divulge, sell, assign, lease, licence or otherwise dispose of the other Party’s data, or any part thereof, to any third party. Each of us shall take whatever steps are reasonably required to procure that our respective employees, agents, sub-contractors and their employees and agents, comply with the provisions of this clause.
- 11.7 Each of us specifically records that all Customer Data and all Sudonum Data shall constitute Confidential Information and as such, each of us shall comply with the provisions of clause 12 with regard to such data.
- 11.8 Each of us shall institute and operate such back-up procedures to our systems as are reasonably necessary to ensure that, in the event of any information system malfunction or other loss of data, the relevant records can be recovered promptly and that the integrity thereof and any database containing such material can be maintained.
- 11.9 Notwithstanding the provisions of clause 11.9, Sudonum gives no guarantee and makes no representation that, in the event of any deletion, loss or damage of or to Customer Data, such Customer Data will be recovered and/or restored. We will use reasonable commercial efforts to restore lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us, but we will have no liability to you if this cannot be achieved.
- 11.10 You agree that, if so required in terms of the Protection of Personal Information Act 4 of 2013, you will enter into a separate operator agreement with us, regulating the processing of Personal Information.
We’ll both keep information disclosed to us by the other, confidential, and we’ll make sure our employees do the same. Sometimes one of us may have to disclose confidential information (for example, if required by law). If that happens, we’ll try to warn the other party of the disclosure in advance. When the Agreement ends, we’ll each have a month to return all the other party’s confidential information to them, or destroy it if they prefer. Not all information is necessarily confidential – if we already knew about it when you told us, for example, or if it becomes public later through no fault of our own. However, the person claiming that information is not confidential must be the one to prove that.
- 12.1 Each of us (“the Recipient”) shall keep all Confidential Information of the other (“the Discloser”), strictly confidential and shall not disclose the Confidential Information to any person, including any of the Recipient’s employees, agents, contractors or advisors (“Personnel”) unless those Personnel:
- 12.1.1 are directly involved in the usage or provision on the Services; and
- 12.1.2 undertake to be bound by confidentiality provisions no less stringent than those contained in this Agreement.
- 12.2 The Recipient shall use its best endeavours to prevent disclosure of the Confidential Information, except as may be required:
- 12.2.1 to use or provide the services, or
- 12.2.1 to use or provide the services, or
- 12.3 Each of us shall, within 30 (thirty) days after the termination of this Agreement, return or, at the discretion of the Discloser, destroy such Confidential Information of the Discloser as we may have in our possession, and neither of us shall retain copies, samples or excerpts thereof.
- 12.4 The following information will not be considered to be Confidential Information:
- 12.4.1 information known to the Recipient before the date that it was received from the Discloser; or
- 12.4.2 information known to the public or generally available to the public prior to the date that it was disclosed by the Discloser to the Recipient; or
- 12.4.3 information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by the Discloser to the Recipient, through no act or failure to act on the part of the Recipient; or
- 12.4.4 information which the Discloser authorises the Recipient in writing to disclose; or
- 12.4.5 information independently developed by one Party without reference to or reliance on any disclosure by the other Party.
- 12.5 The onus for proving that any information falls within the scope of clause 12.4 shall be on the Party seeking to rely thereon.
One of us might do something seriously wrong which either can’t be fixed or isn’t fixed in time. This is known as a breach. If there’s a breach, the other party can get a court order forcing the breaching party to do what he’s supposed to. Alternatively the other party can terminate the Agreement and walk away. In both cases, the other party can also sue for damages (money to compensate him for what he’s lost as a result of the breach). Remember also that if you breach, we might suspend the Services.
- 13.1 If either of us (“the Defaulting Party”):
- 13.1.1 commits a material breach of any provision of this Agreement, (where such breach is capable of being remedied) and fails to rectify the breach within 7 (seven) days after receipt of written notice from the other Party (“the Aggrieved Party”) calling upon it to do so; or
- 13.1.2commits the same material breach more than once during any consecutive 6 (six) months; or
- 13.1.3 commits a material breach of any provision of the terms which is not capable of being remedied; or
- 13.1.4 is sequestrated, provisionally or finally wound-up, and/or commences business rescue proceedings,
then the Aggrieved Party shall, without prejudice to any other remedies available under to it in these terms or at law, be entitled to demand the immediate performance of any of the Defaulting Party's obligations, whether or not any such obligation is then due, or to cancel this Agreement, as the case may be, which cancellation shall take effect on the giving of the notice of cancellation to the Defaulting Party.
14. DISCLAIMERS AND LIMITATIONS OF LIABILITY
We hope the Services are everything you dreamed they would be, but (other than as stated in the SLA) we give no guarantees and we make no promises about them at all. You use the Services entirely at your own risk. Because indirect or consequential loss, or loss of profits, are so hard to quantify, we decided that neither one of us should be liable to the other for those kinds of loss – we’ll only ever be liable to each other for direct damages. We’ve decided to limit our liability for direct damages as well. If a court finds us liable to you for any direct damages, we will never pay you more than the amount in Usage Fees that we’ve received from you during the previous 12 months.
- 14.1 THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT SPECIFICALLY STATED IN THESE TERMS, OR AS REQUIRED BY APPLICABLE LAW, SUDONUM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY, RESULTS OF USE, RELIABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT THAT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
- 14.2 The Services are controlled and operated by Us. We make no representation that materials in the Service are appropriate or available for use in Your location. Those who choose to access the Service from any location do so on their own initiative and are responsible for compliance with all applicable country, regional or local laws.
- 14.3 Neither Party shall be liable to the other for any economic losses (including loss of revenues, profits, contracts, business or anticipated savings), or any special, indirect or consequential loss or damage, whether or not such loss or damage was or should have been in the contemplation of the Parties at the commencement of this Agreement.
- 14.4 In the event that a court of competent jurisdiction finds that Sudonum is liable to you (the Customer) for any direct damages, you agree that the total aggregate liability of Sudonum, its employees, officers, agents and/or sub-contractors, to you, whether under these terms or in law, shall be limited to a maximum amount equal to the amount in Usage Fees actually paid by you to us during the 12 (twelve) months immediately preceding the date on which the cause of action arose.
15. FORCE MAJEURE
Sometimes things happen that are outside of our control, like major storms, power outages and so on. They’re often referred to as Acts of God. If either of us is prevented from performing under this Agreement because of an Act of God, we won’t be in breach, as long as we let the other one know what’s going on. If the Act of God continues for more than 60 days, either of us can terminate the Agreement with no hard feelings.
- 15.1 Neither of us shall be liable to the other for a failure to perform any of our obligations insofar as we can prove that:
- 15.1.1 the failure was due to an impediment beyond our reasonable control;
- 15.1.2 we could not reasonably be expected to have taken the impediment and its effects upon our ability to perform into account at the time of the conclusion of this Agreement; and
- 15.1.3 we could not reasonably have avoided or overcome the impediment or at least its effects, namely, a “Force Majeure Event”.
- 15.2 For the purposes of this clause “impediment” does not include lack of authorisations, of licences, of permits or of approvals necessary for the performance of this Agreement and to be issued by the appropriate public authority, but is understood to be what is commonly referred to as an Act of God.
- 15.3 Relief from liability for non-performance by reason of a Force Majeure Event shall commence on the date upon which the Party seeking relief gives notice of the impediment relied upon to the other Party, and shall terminate upon the date upon which such Force Majeure Event ceases to exist; provided that if such Force Majeure Event continues for a period of more than 60 (sixty) consecutive days, either of us shall be entitled to terminate this Agreement on written notice to the other.
We’ve concluded these Terms with you (and only you) for a reason. You’re special. Please don’t go transferring your rights and obligations to someone else, unless we like them just as much. You’re welcome to transfer to an Affiliate, though, and so are we.
- 16.1 Your rights and obligations are personal to you, and for that reason you may not (except as stated in clause 16.2 below) cede, assign or delegate any rights and/or obligations to any third party, without our prior written consent.
- 16.2 Each of us shall have the right to assign our rights and obligations to an Affiliate of ours, on prior written notice to the other of us.
17. NOTICES AND DOMICILIUM
If we need to communicate with you, we’ll use the address you’ve given in Your Information, and if you communicate with us, please use email@example.com. Letters by registered mails and e-mails are all fine. If you want to change your address, feel free but please let us know in advance.
- 17.1 For the purposes of the giving of notices and the serving of legal process each of us chooses our domicilium citandi et executandi (“Domicilium") as set out in Your Information (in the case of the Customer) or on the first page of this Agreement (in the case of Sudonum). Either of us may at any time, by notice in writing to the other, change our Domicilium to any other address in the Republic of South Africa which is not a post office box or post restante.
- 17.2 Any notice given, except where a particular form of notice is stipulated, be:
- 17.2.1 delivered by hand; or
- 17.2.2 sent by registered mail; or
- 17.2.3 electronic mail,
to the Domicilium chosen by the Party concerned.
- 17.3 A notice given as set out above shall be deemed to have been duly given (unless the disputing Party proves the contrary):
- 17.3.1 delivered by hand; or
- 17.3.2 if sent by registered mail, on the 7th (seventh) Business Day after the date of posting; or
- 17.3.3 by electronic mail, on the first Business Day after the date of transmission.
- 17.4 Any written notice actually received by a Party shall be valid, even if it may not have been given in accordance with the preceding provisions of this clause 17.
18. DESPUTE RESOLUTION
We really don’t want to argue, but disputes can crop up. If a dispute can’t be resolved in two weeks by our CEOs, feel free to refer the dispute to arbitration. The arbitration will take place in Cape Town and be in accordance with the AFSA rules. We’ll try to agree on an arbitrator but if that doesn’t work, we’ll let AFSA choose an arbitrator for us. Sometimes, really urgent intervention is needed to prevent harm (like an injunction to stop someone disclosing sensitive information, for example). In that scenario, there’s no obligation to go the arbitration route first. We can go straight to court.
- 18.1 Unless this Agreement specifically provides otherwise, any dispute arising out of or pursuant to this Agreement, its termination or cancellation shall first be referred for resolution by the chief executive officer (“CEO”) of Sudonum and the Customer (or, if the Customer is not a natural person, the CEO of the Customer).
- 18.2 Where the CEOs cannot resolve the dispute within 14 (fourteen) days of it being referred to them, either one of us may request that the dispute be referred for final resolution by arbitration to be held in Cape Town, in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”), by an arbitrator or arbitrators agreed to between us.
- 18.3 If we cannot reach agreement on the arbitrator/s within 3 (three) days of a request for arbitration, the dispute will be resolved by an arbitrator appointed by AFSA.
- 18.4 Nothing in this clause 18 shall preclude either of us from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator, or from bringing any action or application seeking to enforce a liquidated claim.
The provisions in this clause are general points relating to our relationship with each other and the terms as a whole.We are independent contractors to each other. Our rights and obligations in these Terms will bind our successors in title. If any clause contains a benefit for a third party (like an Affiliate), the Affiliate will be entitled to that benefit as if it had agreed to terms.
South African law applies, and if we have to go to court, it’ll be the Western Cape High Court. Certain provisions of the Agreement (it will be obvious from their wording) will continue to apply, even after the Agreement as a whole terminates; the confidentiality provisions are a good example.
If you do something wrong, but we choose not to take action against you, that doesn’t mean we can’t take similar action against you in the future if the same thing happens again. In general, changes to, or a mutually agreed termination of must be in writing and signed by us both, otherwise they don’t count.
This document embodies the all terms governing the use of the Services between us – if it’s not written down in here, it doesn’t count. A court might find that a particular provision of the terms cannot be enforced – in that case, the rest of the terms will continue to stand, and we’ll try to negotiate an alternative to the problem clause.
Each of us will pay our own costs of reviewing and agreeing to the terms.
- 19.1 This Agreement does not constitute either of us as an agent, an employee or a legal representative of the other for any purposes whatsoever. Neither of us shall be entitled to act on behalf of, or to represent the other, unless duly authorised thereto in writing. We agree that we shall at all times act as independent contractors to one another.
- 19.2 Subject to clause 16, these terms will be for the benefit of each of our respective successors and assigns.
- 19.3 To the extent that any provision contained in this Agreement is an agreement (stipulatio alteri) in favour of an Affiliate of either of us, they shall be capable of acceptance by such Affiliate at any time, and shall be deemed, until otherwise proven, to be accepted by us on behalf of our Affiliates, which Affiliates may then enforce the relevant provisions of the Terms as though they had concluded this Agreement in the first instance.
- 19.4 These Terms shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa. We both irrevocably agree, subject always to clause 19, that the Western Cape High Court has exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
- 19.5 The termination of these Terms shall not affect those of its provisions as expressly provide that they will continue to apply after such termination, or which of necessity must continue to apply after such termination.
- 19.6 No latitude, extension of time or other indulgence which may be given or allowed by either of us (“the Grantor”) to the other in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either of the Grantor arising from these Terms, and no single or partial exercise of any right by the Grantor under the Terms, shall in any circumstances be construed to be an implied consent or election by the Grantor, nor operate as a waiver or a novation of or otherwise affect any of the Grantor’s rights in terms of or arising from these Terms or estop or preclude the Grantor from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
- 19.7 Save in terms of clauses 3 and 7, no addition to or variation of, consensual cancellation of or novation of these terms, and no waiver of any right arising shall be of any force or effect unless reduced to writing and signed by each of us or our duly authorised representatives.
- 19.8 These Terms constitutes the entire agreement between us as to its subject matter. No agreements, representations or warranties (excluding fraudulent representations) regarding the subject matter of these Terms will be binding on us, except for those set out in these Terms.
- 19.9 Each provision of the Terms is severable from the other provisions. If any provision is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, we each agree to consult with one another in good faith in order to agree, if possible, an alternative provision in accordance with the intent and tenor of the Terms. The remaining provisions of this shall nevertheless remain binding on us, and continue in full force and effect.
- 19.10 Each of us will pay our own costs and expenses incurred in connection with reviewing and accepting the Terms.
The clauses below are pretty technical, and are about how the terms will be interpreted if there is any ambiguity. They are mostly used only by lawyers or by judges, if a dispute goes to court, and we’re not going to paraphrase them here. If you want an explanation of any of these terms, feel free to ask.
- 20.1 The summaries to each clause printed in blue text immediately left of the relevant provisions are inserted for convenience only, are not legally binding between the Parties, and shall not affect the interpretation of any of the provisions to which they relate.
- 20.2 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
- 20.3 Expressions defined in the Terms shall bear the same meanings in schedules or annexures to these Terms which do not themselves contain their own definitions.
- 20.4 Words importing the singular shall include the plural and vice versa, words including any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
- 20.5 If any provision in clause 2 or this clause 20 is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in such clauses, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.
- 20.6 The head notes to the paragraphs in these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
- 20.7 Whenever a number of days is prescribed in this Agreement, such number shall be calculated excluding the first and including the last day, unless the last day is not a Business Day, in which event the last day shall be the next day which is a Business Day.
- 20.8 Whenever performance is required to be made in this Agreement on any date and such date is not a Business Day, such performance shall be required to be made on the next date, which is a Business Day.
- 20.9 The contra proferentem rule shall not apply and accordingly none of the provisions hereof shall be construed against or interpreted to the disadvantage of the Party responsible for the drafting or preparation of such provision.
- 20.10 The eiusdem generis rule shall not apply and whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.
- 20.11 A reference to any statutory enactment shall be construed as a reference to that enactment as at the Commencement Date and as amended or re-enacted from time to time thereafter.
- 20.12 Any communication which is required to be “in writing” shall include a communication which is written or produced by any substitute for writing, and shall include printing, typewriting, lithography, fax or electronic mail or any form of electronic communication or other process.
- 20.13 To the extent that value-added tax may be applicable, the amounts shall be regarded as exclusive of value-added tax and/or any other similar tax, which may be applicable in the Territory, unless expressly stated otherwise.
Schedule “A”: Service Level Agreement (“SLA”)
This SLA governs the use of the Services under the Terms. This SLA applies separately to each account using the Sudonum API. Unless otherwise provided herein, this SLA is subject to the terms and capitalized terms will have the meaning specified in the terms. We reserve the right to change the terms of this SLA in accordance with clause 7.
1. SERVICE COMMITMENT
Sudonum will use commercially reasonable efforts to make the Sudonum API available 99.9% of the time. In the event Sudonum does not meet the goal of 99.9% Sudonum API availability in a given calendar month (“Monthly Uptime Percentage”), the Customer will be eligible to receive a Service Credit as described below.
- 2.1 “Unavailable Time” means any period during which the Sudonum API is not available for use according to third party performance and monitoring services contracted by Sudonum at its sole discretion (the “Monitoring Service”), provided that unavailability of the Sudonum API arising out of or relating to any Exclusions (defined in clause 4 below) shall not be deemed to be “Unavailable Time”.
- 2.2 “Monthly Uptime Percentage” is a percentage calculated by subtracting from 100% the percentage of continuous 5 minute periods during the relevant calendar month in which the Sudonum API was in a state of “Unavailable Time” as identified by the “Monitoring Service”.
- 2.3 “Service Credit” is a Rand credit, calculated as set forth below, that we shall credit back to an eligible account where the Monthly Uptime Percentage falls below the service commitment in clause 1 above, as follows:
- 2.3.1 The Monitoring Service will identify the Monthly Uptime Percentage in each calendar month. Sudonum will confirm the nature, extent and accuracy of the Unavailable Time, and will thereupon credit 365/the Customer’s account with a corresponding percentage of the amount invoiced to the Client for that month, as follows:
MONTHLY UPTIME PERCENTAGE
Less than 99.9%
10% of invoice value
- 2.3.2 The Service Credit shall be issued to the Customer on the next invoice date, to be applied against future Usage Fees. No cash refunds will be provided.
3. CREDIT REQUEST AND SERVICE CREDIT APPLICATION PROCEDURE
- 3.1 To apply for a Service Credit, you must submit a claim via firstname.lastname@example.org within 30 (thirty) days of the month in which the Unavailable Time occurred. The email must include (i) "SLA Claim" as the subject of the email; (ii) the dates and times of the Unavailable Time for which you are requesting credit; and (iii) any applicable information that documents the claimed outage.
- 4.1 Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the Sudonum API, or any other Sudonum API performance issues, that (i) are caused by factors outside of our reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of our or our direct hosting subcontractors (i.e beyond the point in the network where Sudonum maintains access and control over the Services); (ii) result from a material breach by you of any obligations under these terms (or any third party directly engaged by you) (other than our direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology used by you in connection with the Services without the prior written consent of us (other than third party equipment within Sudonum’s direct control); or (iv) arise from our suspension and termination of your right to use the Services in accordance with the terms; or (v) Planned Maintenance; or (vi) problems or issues related to alpha or beta Sudonum features or products (and which are communicated to you in writing prior to implementation or use) (collectively, the “Exclusions”)