1.1 PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE CALIBRE APPS SITE AND SERVICES.
1.2 This Agreement allows you to access, view and use the Calibre Apps online goal setting and performance management tool and services (the “Service”) available on the website http://engage.calibreapps.com/ (the “Site”) provided that you do so strictly in accordance with its terms. By using any part of the Site or the Service, you are indicating your acceptance of the terms of this Agreement. Calibre Apps, a trading name of Calibre Web Applications, a private limited company incorporated in South Africa with company number 2011/006140/23, whose registered office and physical address is at 1c Ave Montagne, High Cape, Devil’s Peak Estate, 8001, Cape Town, South Africa (“we” or “us”) and the other party to this Agreement, will provide you with such access to and use of the Service and the Site in terms of this Agreement.
1.3 This Agreement comprises the terms set out below and the registration form (the “Registration Form”) that you are required to complete in order to activate your account prior to receiving the Service.
1.4 For the purpose of this Agreement, a reference to business days shall be a reference to ordinary business days in South Africa (which excludes weekends and official public holidays).
1.5 Your attention is drawn in particular to the following (summarised) terms of this Agreement which limit our liability, require you to indemnify us and incorporate representations and warranties to be made and obligations to be undertaken by you:
1.5.1 Clause 3 (Security): your obligations relating to the security of your account/password;
1.5.2 Clause 4.4 (Payment): we are entitled to charge penalty interest on late payments;
1.5.3 Clause 5 (Your Undertakings): general undertakings made by you and indemnities given by you;
1.5.4 Clause 7.1 (Personal Information; Confidentiality): warranty by you that you have obtained all permissions and consents to allow us to process your information;
1.5.5 Clause 8.1 (Interactive Services): we exclude liability for loss or damage arising out of use of our interactive services as a result of contravention by a user;
1.5.6 Clause 9.1 (Remedies: Warning, Suspension and Termination): circumstances under which we shall be entitled to suspend or terminate your account or this Agreement;
1.5.7 Clause 10 (Liability and Disclaimer): circumstances in which we may not be held liable for loss or damage.
1.6 Please note further that under the Electronic Communications and Transactions Act (South Africa) you are entitled to cancel this Agreement within 7 days following your date of registration.
2. THE SERVICE
We agree to provide you with the Service for the period specified in the Registration Form, provided that any such period shall not exceed 24-months in duration. In the event that no such period is so specified, this Agreement will run for an indefinite period until terminated by either party giving no less than 30 days’ written notice to the other. Where a period is specified in the Registration Form, this Agreement may be terminated by either party giving no less than 20 business days prior written notice to the other.
3.1 We shall supply you with a unique user ID (which may include without limitation user names and passwords) which you must keep safe and confidential. You are responsible for maintaining the confidentiality of your ID and for restricting access to any computer used by you to prevent unauthorised access to your Calibre Apps account. You accept responsibility for all activities that occur under your Calibre Apps account and/or ID. You shall take all necessary steps to ensure that your ID is kept confidential and secure and shall inform us immediately if you have any reason to believe that your ID has become known to anyone else, or if your ID or account is being, or is likely to be, used in an unauthorised manner.
3.2 While we will use reasonable endeavours to ensure that no bug or virus is transmitted to you through the Site or the Service, you are responsible for taking all appropriate measures to prevent harmful agents or components from entering your systems, and for backing up all your data.
3.3 Customer information is stored in electronic databases. Our hosting provider employs industry-standard technical safeguards, including but not necessarily limited to encryption of credit card information, password and/or cryptographic key-based authentication controls on servers which house personal information, browser-based SSL encryption, and other storage system access control mechanisms to protect the integrity of internal databases and prevent unauthorized access.
4.1 Unless otherwise agreed in writing between us, you shall pay to us a fee (monthly in advance) in the amount and in the manner specified in your Registration Form (the “Fee”) in consideration of our provision of the Service.
4.2 We reserve the right to amend the Fee from time to time and will notify you via the Site or email of any changes to the Fee.
4.3 In addition to the above, you shall further be required to pay any taxes (including but not limited to value-added tax (“VAT”) and withholding taxes) concurrently with each underlying payment to be made under this Agreement on which the relevant tax is calculated.
4.4 Interest on all overdue payments under this Agreement shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above the rate that the First National Bank charges on its prime overdraft facilities from time to time, which interest shall be calculated daily, compounded monthly and payable by to us on demand.
4.5 All payments which you are required to make under this Agreement shall be made free of set-off, deduction, withholding or exchange.
4.6 Except as otherwise provided, you agree to bear your own costs and expenses incurred in respect of compliance with your obligations under this Agreement.
4.7 Unless a period is specified in the Registration Form or otherwise agreed (as envisaged under clause 2 above), you shall not be entitled to any refund of any amounts paid to us under this Agreement following its termination. Where a period is specified in the Registration Form, you shall be entitled to a refund of all amounts paid to us by you in respect of the unexpired portion of the Agreement less one (1) month’s Fee which we shall be entitled to retain.
5. YOUR UNDERTAKINGS
5.1 You undertake, represent and warrant that:
5.1.1 your use of the Site and/or the Services does not infringe any copyright, intellectual property rights, or any other rights of any other person;
5.1.2 by using the Site and/or the Services you are not acting in breach of any applicable law, contract or any other obligations of whatsoever nature to any third party;
5.1.3 you have the requisite legal capacity and competency to enter into this Agreement;
5.1.4 you will not use the Site or the Service or for any illegal, immoral or offensive purpose and you will not to use the Site or the Service to communicate any material which is (in our sole discretion) obscene, defamatory, offensive, abusive, illegal or otherwise unacceptable or contrary to our polices as published on the Site from time to time; and
5.1.5 you will not in any manner wilfully or negligently misuse the Site or the Service provided by us for any reason whatsoever.
5.2 You agree to indemnify us and hold us harmless in respect of any loss, damage, cost, injury, claim or other liability we suffer or incur arising as a result of your breach of clause 5.1.
6. INTELLECTUAL PROPERTY
6.1 You acknowledge that all right, title and interest in and to the “Calibre Apps” name, style, trade marks and all components comprising, and made available to you through, the Service and the Site (including without limitation all software, data, design, layout, copy and source code) (together the “Calibre Apps IP”) shall at all times remain with us and our licensors and nothing in this Agreement shall be deemed to confer upon you any rights whatsoever in respect of any of these.
6.2 You may use all data which you receive through your proper use of the Service for your own business purposes only, but you may not reproduce, duplicate, copy, sell, resell, visit or otherwise exploit in whole or in part any Calibre Apps IP without our prior written consent.
6.3 You further agree not to:
6.3.1 reverse engineer, reverse assemble, reverse compile or otherwise attempt to create any source code from the Calibre Apps IP, or interfere with, or compromise the system integrity or security of, or decipher any transmissions to or from the servers running Site;
6.3.2 upload invalid data, viruses, worms, Trojan horses, or other harmful or disruptive codes, components, devices, or software agents through the Site;
6.3.3 impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity, or misrepresent the source or content of information transmitted through the Site;
6.3.4 use the Site or the Service in any unauthorised or unlawful manner or in any other manner that could damage, disable, overburden or impair the Site;
6.3.5 bypass the measures we may use to prevent or restrict access to the Site and/or the Service;
6.3.6 use any robot, spider, scraper, script, or other comparable automated technology to access the Site for any purpose;
6.3.7 gain unauthorized access to the Site, its user accounts, computer systems or networks through unauthorized means such as hacking or password mining;
6.3.8 use any meta tags or any other “hidden text” utilizing Calibre Apps’ name or trademarks without our prior written consent;
6.3.9 frame or utilise framing techniques to enclose and/or mask any trademark, logo, or other Calibre Apps proprietary information (including images, text, page layout, or form) without our prior written consent; or
6.3.10 collect or harvest any personally identifiable information, including account names, from the Site without first obtaining the express prior written permission of such party to use any such personally identifiable information.
7. PERSONAL INFORMATION; CONFIDENTIALITY
7.1 Where we are required, as part of and in providing the Service and making available the Site for your use, to process any personal information on your behalf, you warrant that all necessary data protection consents and permissions in respect of such processing have been obtained, are current and are correct and we agree to take such measures as are reasonably necessary to ensure that your information is not processed in an unauthorised manner.
8. INTERACTIVE SERVICES
8.1 We may from time to time provide interactive services on the Site as part of the Service, including, without limitation blogs and forums.
8.2 Whilst we reserve the right to moderate interactive services at our sole discretion, we are under no obligation to oversee, monitor or moderate any interactive service, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
8.3 To the extent that you access and make use of any interactive service, you must comply with the spirit of the following standards as well as the letter. The standards apply to each part of any contribution as well as to its whole:
8.3.1 Contributions must:
a. be accurate (where they state facts);
b. be genuinely held (where they state opinions); and
c. comply with applicable law in South Africa and in any country from which they are posted.
8.3.2 Contributions must not:
a. contain any material which is defamatory, obscene, offensive, hateful or inflammatory;
b. advocate or promote sexually explicit material, violence, discrimination (based on any grounds) or any illegal or unlawful activity;
c. be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety or be likely to harass, upset, embarrass, alarm or annoy any other person;
d. infringe any copyright, database right or trade mark of any other person;
e. be used to impersonate any person, or to misrepresent your identity or affiliation with any person; and
f. give the impression that they emanate from us.
9 REMEDIES: WARNING, SUSPENSION AND TERMINATION
9.1 Without limiting any other rights or remedies that we may have under any applicable law, we may immediately and without notice issue a warning, temporarily or indefinitely suspend or terminate your registration and may withhold provision of the Service to you:
9.1.1 should you commit any breach of this Agreement or any of our policies which we may publish on the Site from time to time or should you contravene any applicable law or regulation;
9.1.2 should we in our sole discretion determine that your conduct may result in legal liability for yourself or any user of the Site; or
9.1.3 should we be unable to verify any information provided by you.
9.2 This Agreement shall terminate immediately if you become insolvent or if bankruptcy, winding up, receivership, administration or similar proceedings are commenced or issued by or against you, or, if you are a partnership, against all or any of your partners or the partnership as a whole.
9.3 On termination of this Agreement for any reason:
9.3.1 you shall cease all activities authorised by this Agreement in respect of the Services and the Site;
9.3.2 you shall immediately pay to us all outstanding unpaid fees and interest;
9.3.3 our and your accrued rights and remedies as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination; and
9.3.4 clauses of this Agreement which expressly or by implication have effect after termination shall continue in full force and effect,
10. LIABILITY AND DISCLAIMER
10.1 You agree that your use of the Site and the Services shall be at your sole risk. You acknowledge, understand and agree that we depend on information available via the internet in providing the Service is dependent on information obtained via the internet and we therefore make no representations as to accuracy, completeness or correctness. The Service, and any information that you receive through the Service, does not constitute professional advice of any sort. Any action taken by you as a result of your use of the Service is entirely your responsibility.
10.2 We shall not be liable for any costs, claims, actions, demands, liabilities, expenses, damages (whether special or general, direct or consequential) or losses instituted against or suffered or incurred by you arising out of or in connection with:
10.2.1 the Site or the Services;
10.2.2 any act or omission of any other third party howsoever arising, relating to the Site or the Services, including without limitation any misuse or otherwise unauthorised or wrongful use by a third party of the Site or the Services;
10.2.3 errors, mistakes or inaccuracies of content or property damages, of any nature whatsoever, resulting from your access to and use of the Site and/or the Services;
10.2.4 any unauthorised access to or use of our secure servers and/or any and all personal information stored therein;
10.2.5 any interruption or cessation of transmission to or from the Site;
10.2.6 any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the Site by any third party;
10.2.7 any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the Site; or
10.2.8 any cause affecting the performance by us of our obligations under this Agreement arising from acts, events, omissions or non-events beyond our reasonable control, including acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster.
10.3 Except to the extent set out in this Agreement, no other warranties, conditions or other terms, whether expressed or implied, including without limitation those relating to quality or fitness for a particular purpose, are given by us and all such terms are excluded.
10.4 The Site is controlled and offered by us from our facilities in South Africa. We make no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are responsible for compliance with local law.
10.5 Nothing in this Agreement shall limit our liability for death or personal injury arising as a result of our gross negligence or fraud.
10.6 Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of our hosting provider and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that we shall not be liable for any damages arising from such causes beyond the direct and exclusive control of our hosting provider. In no event shall we be liable for any special or consequential damages, loss or injury. We, and our hosting providers, are not responsible for any damages your business may suffer. Our hosting provider does not make implied or written warranties for any of their services. We, and our hosting provider, deny any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by our hosting provider.
11.1 We may amend this Agreement from time to time in our reasonable discretion without the requirement of prior notice. However, no changes to the Agreement shall be effective until we have posted the revised terms on the Site or have otherwise made them available to you.
11.2 Nothing in this Agreement shall be construed as constituting a relationship of agency between you and us.
11.3 Except as otherwise provided herein, all notices and other communications to you shall be in writing or displayed electronically through the Site or by email. Notices to you shall be deemed to have been properly given on the date of display on the Site or emailing, or on the date received if delivered in any other manner.
11.4 Our failure to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
11.5 We may assign, cede and transfer any of our rights and delegate any of our obligations under this Agreement at any time without your prior written consent. You may not assign, cede or transfer your rights or delegate your duties under this Agreement.
11.6 This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and you consent to the exclusive jurisdiction of the magistrates’ courts of South Africa in respect of any disputes arising out of this Agreement or in respect of any breach or threatened breach hereof (except that we may enforce our rights under this Agreement in any jurisdiction).
11.7 If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
11.8 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.9 This Agreement, and any documents referred to herein, constitute the whole agreement between you and us and any previous arrangement, understanding or agreement between you and us relating to the subject matter they cover. You acknowledge that, in agreeing hereto, you have not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
12. CALIBRE APPS INFORMATION
12.1 Full name and legal status: Calibre Web Applications t/a Calibre Apps (Registration number 2011/006140/23), a private limited company incorporated in South Africa.
12.2 Company directors: Robert Elliott
12.3 Physical address: 1c Ave Montagne, High Cape, Devil’s Peak Estate, 8001, Cape Town, South Africa
12.4 Telephone number:
12.5 Website: http://engage.calibreapps.com/
12.6 Email: firstname.lastname@example.org
12.7 Complaints and queries: please contact email@example.com