BUSINESS RESCUE SERVICES:
MOBILE DEVICE MANAGEMENT TERMS AND CONDITIONS OF SERVICE
1. DEFINITIONS AND INTERPRETATION
In this agreement, unless the context clearly otherwise indicates: -
- the following terms shall bear the following meanings:
- "authorised user" shall mean you or an authorised user in your employ where you are a juristic person, who has been assigned credentials;
- "administrator" shall mean an authorised user allowed to act on behalf of the company and instruct iStore Business to act on their behalf;
- "credentials" shall mean a unique username and password that has been assigned to an authorised user;
- "fee" shall mean the subscription price, charged annually or monthly;
- "MDM" shall mean the “Mobile Device Management” software used to mange hardware.
- "portal" shall mean our portal accessible at the URL provided to you;
- "services" shall mean all services that we provide including our mobile device management (MDM) services and cloud hosting services or any other online services;
- "this agreement" shall mean these terms and conditions of service;
- "we", "us", "our" or "iStore Business" shall mean Core Peripherals Proprietary Limited t/a iStore Business (Registration number: 1996/010298/07);
- "website" means the website at the domain as may be designated by us in writing from time to time that provides you with access to the services;
- "writing" means legible writing in English but excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, 25 of 2002; and
- "you" or "your" means you, our customer.
- the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s.
- terms other than those defined within this agreement shall be given their plain English meaning;
- any reference to any statute, regulation or other legislation shall be reference to that statute, regulation or other legislation as at the date that you access this agreement, and as amended and re-enacted from time to time;
- any reference to days, months or years shall be reference to calendar days, months or years, as the case may be;
- references to a person shall include a natural and juristic person;
- references to a party includes their successors or permitted assigns;
- when any number of days is prescribed in this agreement, it shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or South African public holiday, in which case the last day shall be the next day which is not a Saturday, Sunday or South African public holiday;
- the rule that an agreement must be interpreted against the party responsible for its drafting or preparation shall not be applied in the interpretation of this agreement; and
- These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record such departure in writing and both parties shall sign same by handwritten signatures.
2. DURATION OF AGREEMENT
- the following terms shall bear the following meanings: This agreement shall commence when you accept the terms contained herein by either doing so expressly (via email), using or accessing the services or exercising any rights granted to you in terms of this agreement and shall continue until terminated as provided for in terms of this agreement. This agreement will continue for the period of your subscription where after it will terminate unless renewed by you by making payment of the prescribed fees.
- You represent to us that you have the legal capacity and authority to enter into this agreement.
4. RIGHT TO USE THE SERVICES
- We grant to you a non-exclusive, non-transferable right to use the services for the duration and subject to the terms of this agreement and you may only use the services for the specified purposes that we communicate to you, in writing, from time to time.
5. ONLINE SERVICES
- We provide the online services to you on the basis that you grant us permission to monitor how you use the services and our records of your use of the services are prima facie [deemed to be correct until the contrary is proved] proof of the services provided to you.
- We reserve the right to deny you access to the online services for any good reason.
6. CLOUD HOSTING SERVICES
- We grant you a limited, non-transferable, non-exclusive, revocable license to use our cloud hosting services to store and recover your content which is owned or licensed or which you have otherwise lawfully obtained.
- You agree to co-operate with us in respect of the maintenance of the cloud hosting services and to identify any problem/s therewith.
- We accept no responsibility for any interruption in the cloud hosting services.
7. CUSTOMER DATA
- By using your Hardware, you understand and agree that you are collecting data regarding the devices that connect to your Network and how your network is being used, including the types of data described below. By means of the hardware, you are then transferring that data to the MDM provider for processing and storage, including data that may contain personally identifiable information of your network users (collectively, "Customer Data"). The Service may process and store Customer Data in the United States or outside of the country where it was collected. You retain all right, title and interest in and to your Customer Data, however you consent to the iStore Business using your Customer Data as may be reasonably required to provide the services and, only to the extent necessary, to protect our rights in any dispute with you or as required by law. It is your responsibility to provide notice to, and obtain any necessary consents from, your network users regarding collection, processing, transfer and storage of Customer Data.
- MDM application and agent. If you use the MDM service, certain agent software must be installed on the mobile devices, laptops or other devices you choose to enrol. Depending on the type of device, you will be able to perform certain remote actions such as accessing and deleting files, tracking location, enforcing policies, and installing and removing apps on enrolled devices.
- Traffic Information. "Traffic Information" means information about devices that connect to your network, such as MAC address, device name, device type, operating system, geolocation information, and information transmitted by devices when attempting to access or download data or content (e.g., host names, protocols, port numbers, and IP addresses) via your network. We process and store Traffic Information on your behalf to enable us to manage your devices in line with the service agreement.
- We shall provide you with basic support in respect of our MDM services.
9. YOUR DATA
- Your data is any data belonging to you that is provided to us (whether by you or any third party on your behalf) but excludes any data that we create or derive for our own purposes or which is proprietary or confidential to us or our third-party contractors.
- You grant us the right to use your data to provide the services to you and for this purpose you agree to provide us with access to your data.
- You consent to us transferring your data our group of companies, associated companies, service providers or agents, for the purpose of providing the services.
10. INTELLECTUAL PROPERTY
- We or our third-party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of such rights.
- Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.
- We own all intellectual property rights in our technology and trademarks and you may not use these without our written permission. You do not acquire any rights in our intellectual property, trademarks and technology.
- You may not change, hire out, reverse engineer, or copy the services or any part hereof, without our permission.
- You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written consent. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.
11. FEES AND PAYMENT
- You will pay us the access fee specified on our website annually in advance, or monthly on the first day of each month.
- We may suspend your access to the services if payments remain unpaid after the 7th day of the month.
- We may charge you additional fees on a time and materials basis for time that we, in our reasonable opinion, spend in relation to the following:
- data restoration or re-establishment or other assistance required by you that does not result from inherent errors in the services;
- unauthorised use of our services; or
- providing the services to you in circumstances where any reasonably skilled and competent software as a service administrator would have judged your request to have been unnecessary.
- We are entitled to increase the monthly access fee once during each successive period of 12 (twelve) months calculated from the commencement date by giving you 1 (one) months’ advance written notice.
- If, after the commencement date, the fee payable by you increases as a result of an increase in the services for whatever reason, including you electing to use additional services, you will pay us the additional fee as prescribed.
12. SUSPENSION OF THE SERVICE
- We may modify, suspend, or discontinue providing the services without cause (with or without notice) and without any liability or consequence.
- We may immediately suspend your right to use any of the services if you violate our acceptable use policy, that we may have and/or amend from time to time.
13. DISCLAIMER OF WARRANTIES
- You use the services entirely at your own risk and we disclaim all other warranties [guarantees/promises] to the extent allowed by applicable law. We are not liable for any defect howsoever caused.
- We are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.
14. YOUR WARRANTIES
- You hereby warrant that no one has induced you to enter into the agreement by any prior representations, warranties [guarantees/promises], or guarantees and that you are not breaching any other agreement by entering into this agreement.
- You indemnify [to protect against damage or loss] us against any claim of whatsoever nature and howsoever arising in relation to your access and/or use of the services, including all legal costs [the costs that an attorney may recover from their client for their disbursements and professional services if permissible under applicable law], as the services are rendered entirely at your own risk.
15. LIMITATION OF LIABILITY
- Neither party will be liable for indirect, incidental, exemplary, special, or consequential, damages; loss or corruption of data; or loss of revenues, profits, goodwill, or anticipated sales or savings. In no event will iStore Business’s total cumulative liability to Customer and anyone who uses the services through the Customer’s account exceed the aggregate amount the Customer has paid to iStore Business or its authorized channel partners to purchase the services during the prior 12 (twelve) month period.
16. BREACH AND SUSPENSION
- If you:
- commit any breach of a material term of this agreement and fail to remedy same after having received 7 (seven) days written notice to do so;
- breach this agreement materially twice or more in a six-month period;
- are placed in liquidation or voluntarily begin business rescue proceedings (if you are a juristic entity);
- are sequestrated (if you are a natural person); or
- make any settlement or arrangement with your creditors; then we may immediately cancel this agreement in writing and claim damages from you, including fees already due.
- We may immediately suspend your right to use the services if:
- you try to gain unauthorised access to them;
- we decide that your use poses a security threat to us or another user other than you;
- there is evidence of fraud on your account; or
- we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.
- We shall be entitled to terminate this agreement immediately if we:
- discontinue or stop providing the services;
- believe providing the services could burden or pose a risk to us;
- have to comply with any law or statute; or
- determine that providing the services has become impractical.
- Should we wish to terminate this agreement, we will give you as much notice as reasonably possible in writing.
- You may terminate this agreement on at least 60 (sixty) days’ prior written notice to us.
- We may terminate this agreement if you are found abusing our services or staff.
- Should we terminate this agreement, we will stop providing the services and you will no longer be able to access the services. In this event, we may erase your data on termination, cancellation, or expiry of this agreement.
18. EFFECTS OF TERMINATION
- Upon termination, cancellation or expiry of this agreement, all amounts due to us for the services will become due and payable.
- We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.
- This agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.
- Either party may inform the other in writing if there is a dispute in regard to this agreement. The parties must first try to negotiate to resolve the dispute, then enter into mediation under Arbitration of Southern Africa’s (“AFSA”) rules if negotiation fails, and finally go to arbitration if mediation fails. The parties must refer the dispute within 15 (fifteen) days to arbitration under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 (ten) days after the referral, the Secretariat of AFSA shall appoint the arbitrator.
- The laws of the Republic of South African shall governs this agreement.
- This agreement is the entire agreement between the parties on the subject matter.
- We shall be entitled to subcontract work as part of providing the services.
- The parties will send all notices to each other’s’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you will provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 (fourteen) days written notice to the other.
- Neither party is responsible for breach of this agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 (sixty) days.
- You may not assign this agreement to anyone. We may cede or assign this agreement.
- The agreement does not create any other relationship between the parties, other than is specified herein.
- We will notify you of any changes to the agreement by email. Those changes will only apply to future services or orders. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
- Any favour we may allow you will not affect any of our rights against you.
- Any term that is invalid, unenforceable, or illegal may be removed from this agreement without affecting the rest of this agreement.