Terms & Conditions: Opportunity holders
Your use of Lean Enterprise Acceleration Program Pty Ltd’s (LEAP) Software, Services, Documentation and Web Sites with the exclusion of any products and services provided to you the “Company” under another agreement, is subject to the terms and conditions of this Agreement. In order to use the Services the Company Administrator, for and on behalf of the Company must first agree to the terms and conditions of this Agreement. In accepting the terms and conditions of this Agreement, the Company Administrator warrants that he/she is duly authorised and otherwise able in law to enter into a binding agreement with LEAP on behalf of the Company.
1. Definitions In this agreement:
1.1 “Account” means the dedicated Service accessed by the Company on registration for the Service typically accessed through a dedicated name, email address and in the case of specific Services, password used to authenticate the Company;
1.2 “Company Administrator” or “Administrator” means the User that registers the Company on the Web Site, submits and edits the Company’s Account information, authentication information and the Company’s unique settings for and on behalf of the Company;
1.3 “User” means the person accessing the Web Site and using the Services on behalf of the Company, “Documentation” means the Software user manual(s) and any other materials supplied or made available by LEAP for Company’s use as part of the Services;
1.4 “Company Content” means data submitted by the Company to LEAP for processing and publication as part of the Service such as the Company’s job adverts, tenders, opportunities for Job Seekers and Suppliers;
1.5 “Permitted Users” means the permitted number of users in respect of any one or more of the Services which shall be unlimited unless otherwise agreed in writing;
1.6 “Service(s)” (i) access to and publication by LEAP of the Company’s Content on LEAP Web Site (ii) associated services such as monitoring and reporting on the activities surrounding the Company’s Content;
1.7 “LEAP” means a product of Business Growth Solutions whose principal place of business is at Randburg, South Africa.
1.8 “Software” means the computer program(s) incorporated into the Services, the Software shall also include the Documentation;
1.. “Web Site” means the web-based facility that is accessed by the Company to access and manage the Services including the Permitted Users located on the World Wide Web;
2. Provision of Services
Subject to LEAP’s authority to do so, LEAP shall (i) provide the Company with the Services and (ii) grant the Company a revocable, non-exclusive, non-assignable, non-transferable, and non-sub licensable limited right during the term of this Agreement to use the Software owned by LEAP (or it’s Licensors) solely for Company’s use. In the event of LEAP’s authorised Reseller entering into this Agreement with the Company on LEAP’s behalf, the Company agrees that this shall not affect the validity of this Agreement. LEAP shall retain the rights to modify or discontinue any feature or functionality of the Software and/or Services, in whole or in part, at any time without prior notice to the Company. All such modifications and/or alternations shall be done in an attempt to improve the overall functionality and efficiency of the Software and/or Services and shall not inherently change the nature and/or characteristics of the Software and/or Services. The Company acknowledges and agrees that the Services may be unavailable at times due to LEAP’s reliance on third party services or due to regularly scheduled maintenance. If at any time the provision of the Services to the Company would compromise the security of the services to other companies or LEAP’s security as a result of, without limitation, hacking, denial of service or other malicious activities originating from or directed at the Company’s Account, LEAP may suspend the Company’s Services until resolution of such problem. The Company acknowledges and agrees that where the Software and/or Service is unavailable or disabled, the Company may be prevented from accessing the Software and/or Services or content contained in the Company’s Account. The Company acknowledges and agrees that the Company Content will be available on the public Web Site. This will include but not be limited to the Company logo, the Company profile, job adverts/opportunities, business adverts/opportunities, contracts between the Company and suppliers/individuals (including total contract value, ratings and evaluations of the Company. The Company acknowledges and agrees that the Company Content will be used in whole or in part by LEAP for reporting and other Service related functions and that such arising content might be available on a public website.
3. Company's Obligations
The Company Administrator acting for and on behalf of the Company shall register the Company, submit and edit the Company’s Account information such as Company identification, registration and contact information, authorise the Company’s Users and attend to the Company’s unique settings. In so doing, the Company Administrator shall ensure that: the Company Account information is always accurate and updated and that the privacy settings of the Company’s Account is managed: including without limitation, whether the Company publicly displays or alternatively conceals the Company’s contracts with suppliers/ individuals stemming from the Services, the details including monetary values of such contracts, and the ratings and evaluations of the Company. The Company acknowledges and agrees that LEAP shall have no liability or responsibility for the accuracy, completeness of the Company’s Account information or the privacy settings of the Company. A Company may request LEAP to manage the Company’s Account on behalf of the Company. Such request is subject to LEAP’s agreement in writing, the completion of a mandate document authorising LEAP to act on the Company’s behalf and the payment of additional fees for such additional Services. In addition to the Company Administrator, the Company may have other Users who are able to make use of the Services. All Users shall first complete the User Registration procedures. Each of the Company’s Users shall be entitled to, publish the Company’s publications on behalf of the Company. The Company Administrator acting for and on behalf of the Company warrants the authority of each of the Company’s Users to enter into transactions for and on behalf of the Company. The Company shall use the Services only for the purposes permitted by this Agreement and applicable laws in South Africa. The Company shall not engage in any activity that interferes with or disrupts the Services or the servers and networks supporting the Services. Unless specifically authorised in writing, the Company shall not reproduce, duplicate, sell, trade or resell the Services for any purpose. The Company, and each of its respective Users, shall be responsible for (i) the confidentiality of the Account details including the username and password used by the User to access the Services and (ii) all activities conducted by the respective User under the Account. Any unauthorised activity detected by the Company in respect of the Company’s Account shall be reported to LEAP. LEAP reserves the right (but shall have no obligation) to pre-screen, intercept, monitor, review, flag, filter, modify, refuse or remove any or all of the Company’s Content in respect of the Service. Notwithstanding such right, the Company shall be solely responsible for all content created, transmitted or displayed while using the Services and for consequences in respect of such creation, transmission or display. The Company acknowledges and agrees that LEAP cannot be held responsible for the security of data that are sent to LEAP’s via fax/ e-mail/ internet/ Website/otherwise and that such data may be susceptible to unlawful access, distortion and monitoring. In accordance, the Company agrees that use of LEAP Services is at the Company’s risk. The Company acknowledges and agrees that the Company is required to have access to the internet in order to use the Services and that the Company shall be solely responsible for the acquisition, installation and maintenance of the connection to the Internet and any related costs or expenses will be borne by the Company. Should the internet software and hardware requirements be modified with a view to improving or upgrading the internet and/or LEAP, the resultant cost of any hardware, software or Internet connection required for use of LEAP will be for the Company’s own account. In the event that the Company experiences problems with the internet and the internet connection, it is the Company’s responsibility to liaise with the internet service provider to resolve such problems.
4. Intellectual Property Rights
LEAP shall retain all existing and arising right, title and interest in the Software and Services and any intellectual property rights incorporated therein whether registered or not. Except as expressly permitted, Company agrees that the Company shall not, and shall not permit any third party, to (i) modify, adapt, alter, translate, or create adaptations or derivative works from the Software (ii) merge the Software with other software; (iii) resell, or export except as provided herein, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Software or the Documentation to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (v) remove or alter any copyright notices or other notices included in the Software; or (vi) otherwise use or copy the Software or Services except as expressly permitted. Without limiting the foregoing, the restrictions on use of the Software and Services set forth in this Section shall apply to any software and services supplied to the Reseller and LEAP by LEAP’s licensors. Nothing in this Agreement shall entitle the Company to use any of LEAP’s trade marks, service marks, logos, domain name and other distinctive brand features.
5. Indemnity
The Company shall defend, indemnify and hold the Reseller and LEAP and their agents and contractors, harmless from any claim, suit, damages and expenses (including, but not limited to, attorneys’ fees) arising out of (i) Company’s use of the Software and Services; (ii) the failure of Company to comply with all applicable laws, rules, licences and/or regulations regarding the Software and Services; (iii) the failure of Company to comply with the terms and conditions of this Agreement; or (iv) any negligent act or omission of Company.
6. Limitation of Liability
To the fullest extent permitted,leap or its resellers, agents and contractorsshall not be liable for special, incidental, punitive, indirect or consequential damages (including but not limited to damages resulting from loss of data, loss of use, or loss of anticipated profits) resulting from this agreement or the company’s use of or reliance on the software or services, any documentation related thereto,data contained in the leap databases, unavailability of the software or services, or third party software or services, even if the reseller or leap, their leap, agents and contractors have been advised of the possibility of any such damages. This limitation of liability shall not apply to liability for death or personal injury resulting from a party’s gross negligence to the extent applicable law prohibits such limitation. The liability of the reseller or leap or their leaps, agents and contractors to the company or any third party shall be limited to the lesser of actual damages for any cause whatsoever or one thousand rands (r 1,000.00).
7. Warranties
The Services and Software are provided “as is” and LEAP, its licensors and the Reseller provide no warranty in respect of same. In particular, LEAP make no representations or warranties that: (i) use of the Software/ Service will meet the Company’s requirements; (ii) use of the Software/ Service will be uninterrupted, timely, secure or free from error; and (iv) that defects in the operation or functionality or the Service/ Software will be corrected. No conditions, warranties or other terms as to the satisfactory quality, fitness for purpose or conformance with description apply to the Services except to the extent that they are set out in this Agreement. The Company warrants that it has obtained the consent of its personnel (employees, contractors or otherwise designated by the Company) as to the Services and in particular the authority hereby granted to LEAP to intercept, read, copy or filter communications as is necessary and for the purposes of LEAP providing the Services to the Company.
8. Assignment
This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Company shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of LEAP or Reseller as applicable.
9. Severability
Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement. The prohibition on or unenforceability of any provision in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
10. Force Majeure
Neither the Reseller, nor LEAP, nor their agents and contractors, shall be liable to Company for any loss, injury, delay, expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; Acts of terrorism; Acts of God, fires, storms, floods or earthquakes; strikes, labour disputes, vendor delays, or shortages or curtailments of raw materials; labour, power or other utility services; governmental restrictions or trade disputes; manufacturing delays; or other contingencies.
11. Compliance & Consents
Company shall not commit any act which would, directly or indirectly, violate any licence, South African law, regulation, treaty or agreement relating to the Software and/or Services. At its expense, Company shall obtain any consents (including government consents), authorisations, or licenses required for Company to exercise its rights and to discharge its obligations under this Agreement.
12. Termination on Notice
The Services may be terminated by either Party with or without cause, upon thirty (30) days' prior written notice to the other party.
13. Suspension of Services / Termination for Cause
LEAP may immediately, in its discretion, suspend the Services or terminate the Services or Agreement, in whole or part, where LEAP become aware of or suspect any unlawful, improper, or unauthorised use of the Software or Services, or any use of the Software or Services that LEAP reasonably determine in their discretion may be harmful to the Reseller, LEAP, other Companies, or the Software or Services including:
13.1 The Company is distributing spam, malware, viruses or other information security vulnerabilities;
13.2 The Company is found to be using the Services for (i) any unlawful purposes including intellectual property infringement; (ii) transmission or distribution of obscene, indecent, defamatory, offensive, abusive, or pornographic materials;(iii) unauthorised use of the Company’s domain names linked to the Services (as applicable); and (iv) any breach by the Company of data protection or privacy laws.
14. In the event of the LEAP Services not being utilised for a period of 6 (six) months or longer, LEAP reserves the right to terminate the Company’s Account without prior notice. The Company shall be entitled however, to reapply for an Account Services at any time. Should this Agreement be terminated for any reason whatsoever, LEAP will reverse all configurations on accounts within five (5) days of termination. It shall be the responsibility of the Company to undertake all other actions necessary for the retention of the Company Content notwithstanding that the Company Content may continue to be active on the Web Site after the suspension or termination of services. The Reseller and/or LEAP shall not incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the Company because of the act of termination or the expiration of the Services. The Company shall be liable for all transactions and/or obligations (and related charges) which are incurred up to and including the date of termination.
15. No Waiver
If LEAP for any reason does not immediately enforce or implement any of its rights in terms of this Agreement, this shall not infer or be interpreted as an abandonment or waiver on the party of LEAP of any of such rights.
16. Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of South Africa without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with this Agreement, to the exclusive jurisdiction of a competent South African court.
17. Addresses & E-Mail Communications
The Company’s physical address as provided by the Company to LEAP is the address (dom cilium citandi et executandi) which the Company chooses as the address where any process of court may be served on the Company (domicile addresses). The Company’s mail address (be it residential, postal or electronic) will be used to forward statements, notices or other communications. If the Company moves to another physical address, changes the mail address or wish to give the Service Provider any notice, the Company must inform the Service Provider in writing to the Service Provider’s email address or by using the appropriate LEAP system function. Notices given by the Service Provider will be regarded as having been received by the Company:
◦ by e-mail to the Client’s e-mail address, at the time of transmission;
◦ by hand, on the date of delivery;
◦ by telefax, at the time of transmission;
◦ by SMS, at the time of transmission.