Standard terms and conditions of service
- 1.1. “this Agreement” means these Standard Terms and Conditions of Sale as read with the Company’s service contract;
- 1.2. “the Company” means Flock Software Creations CC t/a TouchBasePro, including its associated and subsidiary companies, successors-in-title and assigns;
- 1.3. “the Customer” means the party indicated on the service contract, alternatively the party to whom the Company is providing the Service;
- 1.4. “the Service” means the service provided by the Company to the Customer at the latter’s specific instance and request;
- 1.5. “Service contract” means the Company’s written hard copy service contract that may exist in addition to these standard terms and conditions.
2. This Agreement
This Agreement shall govern the provision of Services by the Company to the Customer and will take precedence over any other terms and conditions which may be contained elsewhere. No variation to this Agreement will be valid unless recorded in writing in a single document and signed by both parties. The existence of this Agreement in electronic format only shall not deviate for any reason whatsoever from the validity of the terms and conditions contained herein.
3. Changes To This Agreement
The company shall have the right at any time to change or modify the terms and conditions of this agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on TouchBasePro.com, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of TouchBasePro.com by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
4. Credit Facilities
- 4.1. The Customer acknowledges that the granting of any credit or credit facilities to it by the Company is in the sole discretion of the Company.
- 4.2. The Company reserves the right to suspend or withdraw the Customer’s credit facilities at any time and acknowledges that the Company can call for payment of the full outstanding balance in such circumstances.
- 4.3. The Company also reserves the right to amend or alter existing terms of credit between the Customer and itself.
5. Orders for Services
- 5.1. The Company shall be entitled to insist on a written order being received from the Customer from time to time in the Company’s discretion.
- 5.2. Any order received by the Company, whether orally or in writing, shall constitute an irrevocable offer to purchase the Services on the terms and conditions pertaining to each transaction.
- 5.3. In the event of the customer not entering into a fixed term service contract with the company (either for 6, 12 or more months), this agreement may be terminated by one party giving the other one calendar month’s written notice, provided that for the customer who has extended its use of the services from the company for more than a 3 (three) continuous month period, the notice period shall be three months.
6. Customer’s compliance
- 6.1. The Customer acknowledges that it is imperative for it to comply with all prevailing laws and regulations relating to the Service.
- 6.2. In particular, the Customer will not abuse the bulk messaging and internet access, extent of service provided or otherwise in making use of the Service for any reason whatsoever.
- 6.3. The Customer acknowledges that should it, for any reason whatsoever, have been the cause, either directly or indirectly, of a breach of the laws and regulations pertaining to the utilisation by the Customer of the Service, the Company shall have the right to recover whatever damages it may suffer directly from the Customer.
- 6.4. The Customer is responsible for all use of The Customer Account (under any screen name or password) and for ensuring that all use of The Customer’s Account complies fully with the provisions of this Agreement. The Customer shall be responsible for protecting the confidentiality of The Customer password(s), if any.
- 7.1. The Company’s prices will be set out on its quotations either in writing or verbally given to Customers.
- 7.2. The Company reserves the right to change the prices of the Service from time to time in its discretion.
- 7.3. The Company reserves the right to vary any quoted price by adding thereto increased costs which need to be levied due to circumstances beyond the Company’s control, for example fluctuations in the exchange rate of the Rand.
- 7.4. The FREE PACKAGE allows the Customer to send up to 5,500 emails per month for the first 4 months (120 days). Thereafter a storage limit of 1,000 subscribers and a sending limit of 2,500 emails per month will apply unless a paid for package is selected.
- 8.1. The Customer shall effect payment for the Services to the Company strictly within the period specified by the Company in its invoice and/or statement.
- 8.2. The Customer will be liable to pay the Company interest should any sum be paid late.
- 8.3. Such interest will be levied at the prime lending rate charged from time to time by Nedbank plus 2% (two percent).
- 8.4. The Customer shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to the Company.
9. Delivery of service
- 9.1. The Company undertakes to take all necessary reasonable steps to ensure the provision of the Service to the Customer expeditiously and continuously.
- 9.2. However the Company points out that due to the nature of the Service, interruptions and delays in the provision thereof can and do occur and any such delay or failure to provide the Service will not constitute a breach of these terms and conditions on the part of the Company. The Customer will be liable to effect payment thereof regardless.
- 9.3. The Customer shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of TouchBasePro.com and all charges related thereto.
10. Ownership and Risk
- 10.1. The Customer acknowledges that ownership in and to all of the intellectual property which is provided to the Customer in providing the Service is owned by the Company.
- 10.2. The Company is entitled to take all reasonable steps to protect such intellectual property against infringement even if this involves jeopardising the provision of the Service to the Customer.
- 11.1. The Company does not warrant that the Service will provide the Customer with the exact form of performance the Customer may have required.
- 11.2. The Customer acknowledges again due to the nature of the Service that the capacities and scope of the Service might fall short of the Customer’s requirements but same shall not give rise to the Customer having any right to withhold payment.
- 12.1. Notwithstanding that the Company is providing the Service to the Customer, the latter shall not be entitled to transfer or otherwise deal in the Service with third parties.
- 12.2. The Customer shall not attempt to copy, replicate or otherwise take advantage of the Service to the benefit of third parties.
13. Confidential Information
The parties acknowledge that during the provision of the Service, confidential information may be exchanged between them and each of them acknowledge the existence of such confidential information and undertake to keep same confidential.
14. Limitation of Liability
The Company will not be liable for any loss or damage of any nature and howsoever arising which may be suffered by the Customer as a result of or in connection with the utilisation of the Service by the Customer, whether indirect, consequential, delictual or otherwise.
If the Customer breaches any provision of this Agreement, the Company shall be entitled to terminate the Agreement and to suspend the provision of the Service with immediate effect.
16. Force Majeure
The Company will not be liable to the Customer for failing to perform any of its obligations in terms of this Agreement as a result of an act of God or any cause beyond its control.
17. Legal Provisions
- 17.1. This Agreement and all transactions between the Customer and the Company shall be governed by and construed in accordance with the laws and regulations of the Republic of South Africa.
- 17.2. The South African Courts will have exclusive jurisdiction to adjudicate any dispute arising from or related to this Agreement.
- 17.3. The Company shall, at its option, be entitled to institute action in the Magistrate’s Court notwithstanding that the amount of its claim exceeds the jurisdiction of such Court. This provision shall not preclude the Company from instituting action against the Customer in any other competent Court with jurisdiction.
- 17.4. A certificate issued by any manager or director of the Company, whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness of the Customer to the Company, provision of the Services to the Customer, or any other fact shall constitute prima facie proof of such indebtedness or delivery or the Company’s ownership or any other fact.
- 17.5. The Customer shall be liable for the Company’s legal fees in the event of the Company enforcing or defending its rights hereunder on an attorney and own client scale, including Counsel’s fees on brief, tracing agent’s fees and collection charges.
The Customer chooses its physical address as set out in the account information supplied during the online registration process on the website as its domicilium citandi et executandi for all purposes under this Agreement. The Customer may change its domicilium by furnishing the Company with 7 (seven) days written notice of its new physical address.
- 19.1. This Agreement constitutes the entire agreement between the parties. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is contained herein.
- 19.2. No amendment of this Agreement and extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both of the parties.
- 19.3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of the Company’s rights hereunder.
- 19.4. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
- 19.5. The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
- 19.6. Provisions in this Agreement that by their very nature are intended to survive the termination, cancellation or completion of a sale shall survive such termination, cancellation or completion.
20. Reasonable Bandwidth Usage Policy
- TouchBasePro enables the user to optionally send bulk emails with images embedded as inline attachments, because of this feature it is possible for bandwidth usage to be abused on the unlimited sending packages. To prevent abuse the standard email size is set at 50kb per email. Embedding images as inline attachments will increase the size per email, so more than one email credit may be required per email sent. For instance if a 75 kb email is sent 1.5 credits will be used per email. An acceptable usage limit is imposed on the unlimited sending packages. The acceptable email credit usage limit is set at 30 times the subscriber storage limit for packages of 50,000 subscribers or less. Unlimited sending does not apply to storage based packages larger then 50,000 subscribers, the sending limit on these packages is set at six times the database storage limit. If these policies are not suitable for the users needs a custom package can be quoted, please contact firstname.lastname@example.org to enquire.