Terms Of Service
HEADSPACE TECHNOLOGIES PROPRIETARY LIMITED
Registration Number 2015/192030/07
Applicable as of 1 June 2018
1. PREVAILING TERMS OF SERVICE
Before you use the Commspace service subject to these terms of service, please read this document carefully. This is a legal agreement (the "Agreement") between Commspace (Proprietary) Limited ("our", "us", "we", the "Company" or "Commspace"), and you and/or the entity that you represent ("you", "your" or "yourself") which governs your use of the Commspace internet-based commission tracking and referral management services (the "Service") and comes into force automatically when you start using the Service (the "Effective Date"). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
This Agreement shall prevail over any term and condition contained in any documentation you may supply or any other documentation.
2. THE COMMSPACE SERVICE
By paying a monthly Service Fee and as long as you are a client of the Company, you are granted a right to use the Service subject to the restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
You must supply us with current, accurate and complete information to register for the Service.
The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with clause 15.
4. YOUR RESPONSIBILITIES
You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
the technical operation of Your Content, including ensuring that commission allocations are correctly set-up and any other information submitted is accurate
compliance of Your Content with the applicable laws,
any claims relating to Your Content; and
properly handling and processing commission statements and other
information sent to you (or any of your affiliates).
You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. Commspace log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
You are responsible for providing client service (if any) to persons that access or uses your account or otherwise accesses or uses the Service under your account ("End Users"). We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
If you would like support for the Services other than the support We generally provide to other users of the Services without charge, you may enroll for client support in accordance with a support agreement to be agreed upon between you and Us.
6. SERVICE FEES
By selecting the Service and utilising it, you agree to pay the monthly service fees in accordance with our prevailing price list ("Service Fee") and to continue to pay the Service Fee until you cancel your account with us.
Payment of the Service Fee must be made monthly in advance, without deduction or set-off, on or before the 5th day of every month, unless formally agreed otherwise, in writing, between you and Us, failing which we shall be entitled to suspend your access to the Service with immediate effect, as set out in clause 14.
Payment must be made by way of debit order or similar automatic deduction. Electronic transfer into a bank account nominated by us in writing is acceptable on our sole discretion, only after prior arrangement.
We may revise our Service Fees at any time provided prior notice has been given in writing.
Payments reflecting Service Fees charges for the immediately succeeding month's use of the Service may be deducted from your authorised credit card/bank account promptly following the start of each calendar month, unless otherwise agreed in writing.
Prices established in this Agreement, and in any schedule, exhibit or related agreement hereto, are exclusive of taxes and other fees which may be imposed on the Company or you for the provision or use of the Service. you will be responsible for such taxes and other fees.
7. MODIFICATION TO THE SERVICE
We may change, suspend, or discontinue all or any part of the Service at any time, with or without reason.
YOU ACKNOWLEDGE THAT THE OPERATION OF THE SERVICE MAY FROM TIME TO TIME ENCOUNTER TECHNICAL OR OTHER PROBLEMS AND MAY NOT NECESSARILY CONTINUE UNINTERRUPTED OR WITHOUT TECHNICAL OR OTHER ERRORS AND WE SHALL NOT BE RESPONSIBLE TO YOU OR OTHERS FOR ANY SUCH INTERRUPTIONS, ERRORS OR PROBLEMS OR AN OUTRIGHT DISCONTINUANCE OF THE SERVICE.
We have no obligation to continue producing or releasing new versions of the Service.
8. SERVICE IMPLEMENTATION, REGISTRATION
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being the "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorise us to verify your Registration Data as required for your use of and access to the Service, to the extent reasonably required.
Once you subscribe to the Service, you shall receive a unique username and password in connection with your account (collectively referred to herein as "IDs"). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. you are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorisation to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account. you agree to immediately notify us of any unauthorised use of your account or any other breach of security known to you.
YOU ACKNOWLEDGE THAT THE COMPLETE PRIVACY OF YOUR DATA AND MESSAGES TRANSMITTED WHILE USING THE SERVICE CANNOT BE GUARANTEED.
The Service will store and process financial and client information that you submit to the Service, given that the data submitted complies to the format and size limitations as indicated by the Service.
We are not liable for any losses relating to missing or incorrect information provided by you, or other actions by you or your agents or representatives that are deceptive, fraudulent or otherwise invalid ("Fraudulent Actions"). By using the Service, you hereby release us from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify us of any Fraudulent Actions which may affect the Service. Commspace reserves the right, in its sole discretion, to terminate your account if you engage in, or enable any other user or client to engage in, Fraudulent Actions.
9. SERVICE USE AND LIMITATIONS
We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems or Internet service provider failures or delays or (iii) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control) or (vii) arising from our suspension and/or termination of your right to use the Service in terms of clause 6.2 hereof.
You acknowledge that Commspace is a commission tracking and referral management software service and not a salary or compensation payment service. You acknowledge and agree that: (i) we will not be liable for remunerating you or your commission sharers based on information provided by Commspace; and (ii) we are not liable for any incorrect payments, salary or commission payment disputes that may arise from the information obtained from the Service.
10. PROPRIETARY RIGHTS
The Service contains content and technology of the Company that is protected by copyright, trademark, patent, trade secret and other laws. The Company owns intellectual property rights to any protectable part of the Service, including but not limited to the design, artwork, logos, functionality, and documentation (collectively, the "Company Property"). You may not copy, modify, or reverse engineer any part of the Service owned by the Company.
Subject to the terms and conditions hereof, Company hereby grants you a limited, revocable, non-transferable and non-sublicensable license to display the Company Property (excluding any software code) solely for use in connection with viewing the Service or other uses which are expressly permitted by the Company in writing. Notwithstanding such permitted uses and license, you acknowledge that all derivative designs and artwork which utilise the Commspace logo or other Company Property (collectively, "Derivative Works") are the sole property of the Company. No other rights are granted to you with respect to the Company Property other than those rights granted explicitly herein, including with respect to any Derivative Works.
All right, title and interest in any text, images, or other information, including information relating to your clients, commission and other income (collectively, "Your Content") loaded onto the Service by you, shall remain your sole property.
You may use Your Content in any way without restriction.
In order to operate the Service, the Company needs the right to make certain uses of Your Content and you consent to our use of Your Content to provide the Service to you. We may disclose Your Content to provide the Service to you or any End Users and to comply with any request from a governmental or regulatory body. We shall furthermore be entitled to collect and utilise data in respect of Your Content only on an aggregated anonymised basis, to which you consent.
The Company reserves the right to remove any Content from the service, at its sole discretion.
11. DISCLAIMER OF WARRANTIES
You expressly understand and agree that
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, SUBJECT TO AND TO THE EXTENT PERMISSIBLE UNDER THE CONSUMER PROTECTION ACT, ACT 68 OF 2008.
THE COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER COMMSPACE'S CONTROL (SUCH AS THIRD PARTY SERVERS). COMMSPACE GIVES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. LIMITATION OF LIABILITY AND INDEMNITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
THE USE OR THE INABILITY TO USE THE SERVICE;
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR CONTENT;
ANY OTHER MATTER RELATING TO THE SERVICE IN ALL INSTANCES SUBJECT TO AND TO THE EXTENT PERMISSIBLE UNDER THE CONSUMER PROTECTION ACT.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT
HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If you are dissatisfied with the Service, your sole and exclusive remedy is to discontinue use of the Service. Except for the indemnification and confidentiality obligations of the parties set out herein, in no event shall either party's liability exceed an amount equal to the Service Fees paid by you under this Agreement, during the last 6 months prior to termination of the Service.
We may suspend your or any End User’s right to access or use any portion or all of the Service immediately upon notice to you if we determine:
your or an End User’s use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or content of any other Commspace client, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
you are, or any End User is, in breach of this Agreement, including if you are in default of your payment obligations for more than 15 days; or
you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any insolvency, business rescue, liquidation, dissolution or similar proceeding.
If we suspend your right to access or use any portion or all of the Service:
you remain responsible for all Service Fees and/or charges you have incurred through the date of suspension;
you will not be entitled to any service credits under any Service Level Agreement/-s for any period of suspension; and
we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your or any End User’s right to access or use the Service is in addition to our right to terminate this Agreement pursuant to clause 15.
You may terminate this Agreement for any reason by providing us 30 days advance notice. We may terminate this Agreement for any reason by providing you 30 days advance notice.
Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in clause 14.1.2, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service expires, terminates or requires us to change the way We provide the software or other technology as part of the Services, (C) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
16. EFFECT OF TERMINATION
Upon any termination of this Agreement:
all your rights under this Agreement immediately terminate;
you remain responsible for all Service Fees and/or charges you have
incurred up to the date of termination;
we will immediately terminate your access to the Service; and
clauses 1, 4, 10 (except the license granted to you in clause 10.2), 11, 12,
16.1.4 and 17 will continue to apply in accordance with their terms.
Unless We terminate your use of the Service pursuant to clause 15.2, during the 30 days following termination:
we will not erase any of Your Content as a result of the termination;
you may retrieve Your Content from the Services only if you have paid all
amounts due; and
we will provide you with the same post-termination data retrieval
assistance that we generally make available to all clients.
Any additional post-termination assistance from us is subject to mutual agreement by you and us.
This Agreement constitutes the entire agreement between you and the Company and supersedes any and all previous us agreements, written or oral, between you and the Company, including previous us versions of the Terms of Service.
The Company may assign this Agreement in whole or part at any time.
This Agreement and the relationship between you and the Company shall be governed by the laws of the Republic of South Africa without regard to its conflict of law provisions. You and the Company agree to submit to the personal and exclusive jurisdiction of the Western Cape High Court, Cape Town.
Any failure of the Company to enforce or exercise a right provided in these terms is not a waiver of that right.
Should any provision of these terms be found invalid or unenforceable, the remaining terms shall still apply.
We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure result from any cause beyond our reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
We may provide any notice to you under this Agreement by: (i) posting a notice on the Commspace website; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Commspace website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
To give us notice under this Agreement, you must contact Commspace by sending us a message.