Terms of service
EPIC Terms of Service Table of contents 1. Definitions. 2. The Agreement. 3. EPIC. 4. The SUBSCRIBER SIDE communications driver 5. The USER SIDE computer on-line service 6. SUBSCRIBER Equipment and Remote Connect Charges. 7. User Passwords and Use Thereof. 8. Conduct of SUBSCRIBER and USERS. 9. Accuracy and Validity of Information and Opinions. 10. Monitoring of EPIC. 11. EPIC Licenses. 12. On-line Software Updates. 13. EPIC Support. 14. DISCLAIMER OF WARRANTIES. 15. LIMITATION OF The PROVIDER's LIABILITY. 16. Term and Termination. 17. EPIC Access and Service Fees. 18. Change in Fees. 19. Financial Information. 20. Credit Card Information and Account Information. 21. Manner of Giving Notice. 22. Non-Waiver. 23. Severability and Choice of Law. 24. Assignment and Binding Effect. 25. Entire Agreement. 1. Definitions. 1. "The PROVIDER(S)" refers to Think Open Software AND Brightside Financial Solutions CC. 2. "EPIC" refers to the service offered by Think Open Software (PTY) Ltd and Brightside Financial Solutions CC. 1. "The SERVICE" is constituted by two software components 1. "The SUBSCRIBER SIDE" refers to the software installed on The SUBSCRIBER'S (as defined below) application 2. "The USER SIDE" refers to the web-application front end that is accessed by The USER (as defined below) 3. "The SUBSCRIBER" refers to the legal person who gives access to the EPIC service to their customers, and who is responsible for paying The PROVIDER for the service. 4. "The USER" and "USERS" refers to an end-user(s) that access the EPIC USER SIDE service 2. The Agreement. 1. THIS AGREEMENT is made and entered into between The PROVIDER, The SUBSCRIBER and The USER, with respect to the service known as EPIC which is owned jointly by The PROVIDERS, and which is a two-tier application consisting of a SUBSCRIBER SIDE communications driver and a computer on-line service in which The SUBSCRIBER shall have the right to operate its own system, and grant access to its USERS. 2. Subject to the terms and conditions of this Agreement, The PROVIDER authorizes The SUBSCRIBER to allow its USERS to access EPIC throughout the term of this Agreement. 3. EPIC. 1. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to EPIC to that number of users ("USERS") for which The SUBSCRIBER has paid the required fee (if any) in order for USERS to perform such lawful activities as EPIC permits. 2. The PROVIDER may, without advance notice or liability, add, discontinue, or revise any aspect of EPIC, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for The SUBSCRIBER or The SUBSCRIBERS USERS, to access and use EPIC, subject to the terms and conditions of this Agreement. 4. The SUBSCRIBER SIDE communications driver 1. The EPIC communications driver consists of application software that will be installed on the SUBSCRIBERS infrastructure. 2. The SUBSCRIBER acknowledges that they have hereby been informed that The EPIC communications driver will interrogate, extract, update transmit and receive information housed on the SUBSCRIBERS infrastructure. 1. Such data will be transmitted to the EPIC USER SIDE 2. Such data will be received from the EPIC USER SIDE 3. In no event will The PROVIDER be liable to The SUBSCRIBER, its USERS, or any third party for any incidental or consequential damages (including, without limitation, indirect, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, or loss of business information or the integrity of such information) arising out of the use of or inability to use the program, or for any claim by any other party, even if The PROVIDER has been advised of the possibility of such damages. 5. The USER SIDE computer on-line service 1. The EPIC computer on-line service consists of web-application software that is hosted by The PROVIDER or The PROVIDERS appointed agent(s). 2. The SUBSCRIBERS and its USERS will have access to the USER SIDE, in terms of this Agreement. 3. The PROVIDER and its agents will endeavour to keep the on-line service available at all times. 4. The SUBSCRIBER agrees to not hold The PROVIDER and/or its agents liable for damages resulting from service downtime such as, without limitation, indirect, special, punitive or exemplary damages for loss of profits, indirect or direct effects to business continuity, or loss or failure of integrity of business information. 6. SUBSCRIBER Equipment and Remote Connect Charges. 1. The SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize EPIC. 2. The SUBSCRIBER may transfer this responsibility to its USERS, so long as its USERS indemnify The PROVIDER from all claims relating to this responsibility. 7. User Passwords and Use Thereof. 1. All SUBSCRIBERS and their USERS will be responsible for maintaining the confidentiality of their passwords. 2. The SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of EPIC, including unauthorized use. 8. Conduct of SUBSCRIBER and USERS. 1. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access EPIC shall use EPIC only for lawful purposes. 2. SUBSCRIBER and its USERS will not post or transmit on or through EPIC any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving EPIC that would constitute a criminal offense or give rise to civil liability under any local, provincial, state, federal or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through EPIC any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. 3. Any complaint with regard to "SPAM" may result in the immediate termination of The SUBSCRIBERS and its USERS access to EPIC. 4. SUBSCRIBER acknowledges that EPIC, EPIC software and software accessible through EPIC contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure. 9. Accuracy and Validity of Information and Opinions. 1. The PROVIDER. will make a reasonable effort to ensure that information it contributes to EPIC is timely and accurate. However, The PROVIDER does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to EPIC. 10. Monitoring of EPIC. 1. The PROVIDER may, in its discretion, monitor EPIC and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other SUBSCRIBERS and USERS of EPIC from fraudulent, unlawful, dangerous or abusive use of EPIC. 2. The PROVIDER may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of The PROVIDER, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. 3. The PROVIDER may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to or through EPIC. 4. The PROVIDER will not, however, intentionally intercept or disclose any private communication unless required or permitted by law to do so, and The PROVIDER shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to EPIC. 11. EPIC Licenses. 1. The PROVIDER hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use EPIC and to have its USERS use EPIC in accordance with the terms and conditions of this Agreement. SUBSCRIBER and its USERS independently agree to respect the copyright and other proprietary rights of third party licensors of EPIC and to abide by the terms of license agreements applicable thereto. 2. The SUBSCRIBER undertakes to ensure that their USERS abide by the terms of license agreements applicable thereto. 3. Throughout the term of this Agreement, SUBSCRIBER and its USERS may use EPIC solely for the purpose for which it is intended and SUBSCRIBER may use EPIC for the number of USERS for which SUBSCRIBER has paid the applicable fee to The PROVIDER. 4. If subscriber exceeds paid for capacity or monthly bandwidth (if applicable), SUBSCRIBER shall automatically be billed for such additional capacity and/or related charges at the rate agreed to by both parties. 5. The PROVIDERS are the copyright owners of EPIC. The technical procedures, processes, methods of operation, and concepts which are embodied within EPIC are trade secret information of The PROVIDERS. and/or its licensor(s). 1. This license is not a sale of a copy of EPIC and does not render SUBSCRIBER or its USERS the owner of a copy of EPIC. Ownership of EPIC and all components and copies thereof shall at all times remain with The PROVIDERS and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which EPIC may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to EPIC shall at all times be the property of The SUBSCRIBER. 6. SUBSCRIBER and its USERS may not make any copies of EPIC. 1. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of EPIC or disclosure or use of The PROVIDER's or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to EPIC of the restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. 2. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents. 7. SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of EPIC or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of The PROVIDERS. 8. Subject to the limitations herein, The PROVIDER will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that EPIC infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: 1. SUBSCRIBER notifies The PROVIDER within seven (7) days in writing of any notice of any such claim; 2. SUBSCRIBER cooperates with The PROVIDER in all reasonable respects in connection with the investigation and defense of any such claim; 3. The PROVIDER shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; 4. Should EPIC become, or in The PROVIDER's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit The PROVIDERS, at The PROVIDERS's option and expense, either to: 1. procure for SUBSCRIBER the right to continue using EPIC 2. replace or modify the same so that it becomes non-infringing; or 3. terminate this license insofar as the use of EPIC is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to The PROVIDER for the period for which such payment has not been earned. 5. Notwithstanding anything herein to the contrary, however, The PROVIDER shall have no obligation or liability to SUBSCRIBER under any provision of this Agreement if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of EPIC in a manner other than that for which it was furnished by The PROVIDER or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing. 9. If EPIC does not conform to and perform substantially in accordance with The PROVIDERS's specifications, The PROVIDER will endeavor to correct any failure of EPIC to so conform or perform; provided that: 1. SUBSCRIBER gives The PROVIDER written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; 2. Such failure to so conform or perform is not, in The PROVIDER's reasonable opinion, a result of any modification of or damage to EPIC or its operating environment or of SUBSCRIBER and its USER'S failure to operate EPIC in the proper hardware and software environment. 10. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: 1. The PROVIDER will endeavor to correct within a reasonable time any reported failure of EPIC to substantially conform to or perform substantially in accordance with The PROVIDER's specifications; 2. In the event that The PROVIDER shall fail or be unable for any reason to correct any failure of EPIC to substantially conform to or perform substantially in accordance with The PROVIDER's specifications, SUBSCRIBER may terminate this license and cease using EPIC, and The PROVIDER will refund to The SUBSCRIBER the full amount of any license fee paid to The PROVIDER from the date any error is reported. 12. On-line Software Updates. 1. The PROVIDER may, when feasible, remotely update any version of EPIC, either with or without notice to SUBSCRIBERS or its USERS. 2. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of EPIC. 3. Any updated version of EPIC furnished to SUBSCRIBER by The PROVIDER will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced. 4. The PROVIDER, its appointed agents and/or EPIC may send email communications and intersystem messages to SUBSCRIBERS and their USERS explaining new features of the EPIC software and other news concerning The PROVIDERS. 13. EPIC Support. 1. Throughout the term of this Agreement, The PROVIDER will maintain e-mail support to assist paying SUBSCRIBERS in their use of EPIC. 2. The SUBSCRIBER undertakes to support its USERS and The PROVIDER is under NO obligation to provider end-user support 1. Any support that is provided to a SUBSCRIBER's USERS does not place an obligation on The PROVIDER to continue any support or communication with a USER 14. DISCLAIMER OF WARRANTIES. 1. EXCEPT AS EXPRESSLY PROVIDED ABOVE, EPIC, AND INFORMATION AVAILABLE THROUGH EPIC ARE FURNISHED BY THE PROVIDEE AND ACCEPTED BY SUBSCRIBERS AND USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. THE PROVIDER DOES NOT WARRANT THAT EPIC, OR INFORMATION OBTAINED THROUGH EPIC WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF EPIC OR EPIC ITSELF WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE SERVICE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE PROVIDERS'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH EPIC, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF EPIC, AND INFORMATION OBTAINED THROUGH EPIC IS WITH SUBSCRIBER. 15. LIMITATION OF The PROVIDER's LIABILITY. 1. IN NO EVENT WILL The PROVIDER or any shareholders or directors of The PROVIDER's, BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY THE PROVIDER UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF THE PROVIDER UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY THE PROVIDER UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO THE PROVIDER BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE THE PROVIDER FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS. 2. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, EPIC without the express written approval of The PROVIDER. 16. Term and Termination. 1. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. 2. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. 3. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to The PROVIDER within thirty (30) days following the date on which access to EPIC first becomes available to SUBSCRIBER. 4. The PROVIDER may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of EPIC without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation in terms of this Agreement. 5. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using EPIC. 17. EPIC Access and Service Fees. 1. SUBSCRIBER will pay to The PROVIDER implementation charges as negotiated. 2. Throughout the term of this Agreement, SUBSCRIBER will pay The PROVIDER a term-based fee determined in accordance with fee schedules established by The PROVIDER for EPIC from time to time as agreed. 3. In addition, SUBSCRIBER will pay The PROVIDER at the rates specified in such fee schedules for file storage in any given month beyond the amount included in the basic subscribed services. 4. SUBSCRIBER will also pay or reimburse The PROVIDER for all sales, use, excise, and other taxes and governmental charges including VAT which The PROVIDER is at any time required to pay or collect in connection with the furnishing of EPIC under this Agreement. 5. SUBSCRIBER's credit card may be charged for the monthly fees and other charges to be paid under this Agreement. 6. If SUBSCRIBER gives written notice of termination of this Agreement within thirty (30) days following the date on which access to EPIC first becomes available to SUBSCRIBER, The PROVIDER will credit SUBSCRIBER'S account for all installation and basic monthly service fees incurred up to the date on which such notice of termination is received except for customized development charges, which shall not be refunded. 7. Payment terms of all charges by The PROVIDER to SUBSCRIBER under this Agreement Cash On Delivery. 8. Any amount not paid when due will accrue a finance charge at the rate of two percent (2%) per month (26.82% per year), or the highest rate permitted by law, whichever is less, until fully paid. 18. Change in Fees. 1. The PROVIDER may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at fifteen (15) days prior written notice thereof to paying SUBSCRIBER. 19. Financial Information. 1. All financial information submitted via EPIC by SUBSCRIBER shall at no time be the responsibility of The PROVIDER in any fashion whatsoever and may be shared with such financial institution as may be required. 20. Credit Card Information and Account Information. 1. The PROVIDER does not store the credit card or account information of USERS UNLESS the SUBSCRIBER inputs such data into EPIC. 2. SUBSCRIBERS, who choose to store their own, or their USERS, credit card or account information, are responsible for the security of that information. 3. When storing credit card or account information using EPIC, SUBSCRIBERS acknowledge that they are aware of, and accept as satisfactory, The PROVIDERs credit card and account protection procedures. 4. To safeguard credit card and account information, The PROVIDER will encrypt all stored credit card and account numbers and uses 128 bit SSL certificates to encrypt data during transfer between web browsers and EPIC. 5. When storing credit card or account information using EPIC, the responsibility for the security of any such information stored by The PROVIDER on behalf of its SUBSCRIBERS is solely the responsibility of The SUBSCRIBER. 6. The PROVIDER is not responsible for the security of any credit or account data and SUBSCRIBERS indemnify and save harmless The PROVIDERS from any claim or demand resulting from the theft or loss of any credit card or account information. 21. Manner of Giving Notice. 1. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. 22. Non-Waiver. 1. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. 2. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed. 23. Severability and Choice of Law. 1. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. 2. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. 3. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in the Republic of SOUTH AFRICA, and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of the Republic of SOUTH AFRICA. 24. Assignment and Binding Effect. 1. The PROVIDER may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. 2. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of The PROVIDER. 3. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. 25. Entire Agreement. 1. This Agreement sets forth the entire agreement and understanding between The PROVIDER and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. 2. This Agreement may not be modified or amended by The SUBSCRIBER or its USERS, except by a writing signed by The PROVIDER. 3. The PROVIDER may update this agreement as it sees fit. 1. An update to this Agreement must be electronically accepted by The SUBSCRIBER and its USERS. 2. The PROVIDER reserves the right to disable access to EPIC until such an update has been accepted by The SUBSCRIBER and/or its USERS.
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Terms of service