This Service Agreement is a part of the Service Order between The Website Engineer (Pty) Ltd (Registration Number: 2016/478083/07), a South African private company (“Company”) with its registered postal address at PO Box 2072, Stellenbosch, Western Cape, 7601, and the Client named on the Service Order.
In the event Client breaches or fails to comply with any term of the Service Order or this Service Agreement, Company may enforce its rights hereunder.
Definitions
“Agreement” means the Service Order together with the Service Agreement.
“Business Day” means Monday-Friday, 9am – 5pm South African Standard Time, excluding South African public holidays.
“Code” means the Platform Code together with the Software Code.
“Custom Integration” means the development of customised software to facilitate the transfer of data between the Website and Client’s software applications and related systems, but excludes full API access and data import and export functionality.
“Client Data” means all data, information or material that Client or a User or Company on behalf of Client, submits to the Platform and/or Website.
“Effective Date” means the date on the Service Order after which Company commences with services as defined on the Service Order.
“Effective Termination Date” means the last day for which the Platform and Website is available for use.
“Website” means the custom website developed, operated and maintained using the Platform to render services as described in the Service Order and all Software Upgrades and Software Updates to the website, including the format, content, look and feel and sequence thereof.
“Website Enhancements” means Software Updates, Software Upgrades or derivative works of the Website by whoever made and whether or not such Enhancements incorporate or are based on any information gained as a result of this Agreement.
“Party(ies)” means Client and/or Company, as the context may require.
“Password” means a sequence of alphanumeric characters in the form of a Login ID, User Password and Client ID that permit access to the Website, and password reset questions and answers which allow Users and Client to automatically reset Passwords.
“Payment Default” means that Company has not received Client’s payment of a particular invoice within five days following the payment due date.
“Platform” means the Company’s web-based, cloud hosted technology platform together with the format, sequence and functionality thereof, that enables the users thereof to develop and host custom Websites and other related software applications, including full API access and data import and export functionality.
“Platform Code” means any source or object code of Company or its licensors included in the Platform, including, but not limited to, the graphical user interface.
“Platform Enhancements” means Software Updates, Software Upgrades or derivative works of the Platform by whoever made and whether or not such Platform Enhancements incorporate or are based on any information gained as a result of this Agreement.
“Servers” means the computers on which the Platform & Website operates.
“Software Code” means any source or object code of Company or its licensors included in the Website, including, but not limited to, the graphical user interface.
“Software Update” means a maintenance release containing bug fixes only without any new functionality.
“Software Upgrade” means a group of bug fixes as well as the addition of a minor piece of functionality (one which has an effect on one or more localized areas of the Platform and/or Website, as applicable).
“Solution” means the Platform together with the Website and other related software applications.
“Fees” means the fees and/or costs described in the Service Order.
“User” means (a) any employee or contractor of Client authorised by Client to access the Platform and/or Website and assigned access to the Platform and/or Website, and (b) any person who accesses the Platform and/or Website as a “user” using a Password issued to, by or on behalf of Client.
1. Solution.
Subject to the terms of this Agreement, Company agrees to provide to Client’s Users access to the Platform and Website and to develop, implement and maintain the services described in the Service Order and provide the Service Levels set forth in Exhibit A, for the Term of this Agreement as described in the Service Order.
2. Duration.
The Service Order and Service Agreement shall remain effective unless either Company or Client terminates the agreement as specified in Termination.
3. Payment Terms.
a. Client agrees to pay the Fees specified in the Service Order. The fees set forth in the Service Order are exclusive of any Value Added Taxes. Any taxes, fees, duties or surcharges levied by any South African government entity as a result of use of the Solution are the responsibility of Client. Specifically excluded are taxes assessed solely on the basis of Company’s total revenues, income or net worth.
b. Client agrees to pay the Fees on the payment terms specified in the Payment Schedule in the Service Order.
c. Company reserves the right to suspend or terminate Client’s access to the Solution immediately in the event of a Payment Default, subject to Section 7. Such suspension or termination will not relieve Client from its obligation to pay amounts due through the date of termination. Company may also suspend or terminate Client’s access to the Solution if Client experiences any adverse changes in business conditions including, but not limited to, if Client (i) takes any steps in contemplation of being placed into business rescue; (ii) is placed under provisional or final liquidation; (iii) attempts a compromise or composition with its creditors; (iv) considers or passes a resolution for its voluntary winding-up; (v) has a judgment of any court granted against it that remains unsatisfied for a period of 14 (fourteen) days after it has been granted; (vi) has any of its property, movable or immovable, attached in execution or by any process of any court of competent jurisdiction; (vii) makes default or threatens to make default in the payment of liabilities generally; or (viii) commits any act or omission which is an act of insolvency in terms of the Insolvency Act, No. 24 of 1936.
d. Company shall have the right to review and revise the Fees set forth in the Service Order annually on the anniversary of the Effective Date. Company shall notify Client of any change to the Fees, which changes shall apply for the 12 months following such anniversary. Company shall not exercise such right more than once in any 12 month period.
4. Use of Services; Restrictions.
Client shall not (i) disclose, share, or publish the Passwords except to or with its authorised Users. Client shall maintain the confidentiality of the Passwords in accordance with the terms of Section 9; (ii) copy, download, debug, or attempt to decompile, disassemble, or otherwise reverse engineer or attempt to access or discover any Platform Code, know-how, format, database structure or maintenance, underlying ideas, underlying design techniques, underlying user interface techniques or algorithms of the Platform or allow any other party to do the same; (iii) make or attempt to make any enhancements of, modifications to or derivative works of the Platform; or (iv) resell, sublicense or otherwise provide access to the Platform to any persons other than authorised.
5. Ownership.
a. As between the parties to this Agreement, the Platform, the Platform Code, the Platform Enhancements and all copies and portions thereof and all proprietary rights with respect thereto, are, and at all times will remain, the exclusive property of Company (“Company IP”). Nothing in this Agreement shall be construed to transfer to Client, any User or any other person any ownership interest in any of the foregoing.
b. The Website, the Website Enhancements and all copies and portions thereof and all proprietary rights with respect thereto will at all times remain the exclusive property of the Client (“Client IP”). Company reserves all rights to the foregoing that are not specifically granted to Client in this Agreement.
c. Company represents to Client that Company has the right to provide access to the Solution to Client on the terms and conditions stated herein, and that, to Company’s knowledge, Client’s use of the Solution on the terms and conditions stated herein will not violate any South African patent, copyright, trademark or other South African intellectual property right of any third party.
- Client shall not: (a) modify, create derivative works from, distribute, or sublicense the Company IP except as explicitly permitted by this Agreement; (b) use the Company IP in any way that allows third parties to use or benefit from the Company IP; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the source code embedded in the Company IP.
- Company will not: (a) modify, create derivative works from, distribute, or sublicense the Client IP; or (b) use the Client IP in any way that allows third parties to use or benefit directly from the Client IP.
6. Client’s Obligations.
a. Client will notify Company of a material defect, error, question or difficulty in use of the Solution in accordance with Exhibit A.
b. Client agrees that Company shall have the right to use, in any manner and for any purpose, any information about the Solution gained as a result of Client’s or any User’s use of the Solution. Such information shall include, without limitation, changes, modifications and corrections to the Platform, Website and customer service, help desk and IT metrics, general benchmarks, standards and best practices.
c. Client and all its Users use of the Solution will comply with all terms of the Agreement.
d. Client will comply with all (i) relevant export laws and regulations of South Africa and, to the extent applicable, export and import regulations in other countries or territories (“Export Laws”) to ensure that neither the Platform, the Website nor any Code is used with respect to any encryption products, or otherwise to export, directly or indirectly, any item or data in violation of Export Laws; and (ii) all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Solution, including those related to data privacy, international communications and transmission of technical or personal data.
e. Client shall notify Company immediately of any unauthorised use of any Password or account or any other known or suspected breach of security, and shall notify Company immediately and use reasonable efforts to stop immediately any copying or distribution of Code or Confidential Information that is known or suspected by Client or any User.
f. Client shall ensure that no person who accesses the Solution through the use of a Password issued to Client or a User will impersonate another user of the Solution or provide false identity information to gain access to or use the Solution.
g. Company does not own or have any responsibility for any Client Data. As between Client and Company, Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Client Data, and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data.
7. Service Level Agreement.
Company will use commercially reasonable efforts to (i) maintain the availability of the Platform in accordance with the service levels set forth in Exhibit A, provided that Client’s and Users’ rights and remedies with respect to any downtime are solely as set forth in Exhibit A, and (ii) provide appropriate technical support services for the Solution directly to Client as set forth in Exhibit A. Company will not have any responsibility for hosting, operating, supporting, maintaining, or servicing any of Client’s or third-party-provided hardware or software.
8. Termination.
a. Company may terminate this Agreement within the preriod defined in the Signed Service Order on written notice to Client in the event of a Payment Default, which notice shall specify the Effective Termination Date.
b. If Company in its sole and absolute discretion determines that Client or any User (a) is using the Solution for purposes or in a manner not intended, or (b) otherwise is conducting itself in a manner that could reasonably be anticipated to expose Company to liability or that adversely affects the Solution or the use of the Solution by other users, then Company will have the right to terminate immediately and without notice the Passwords and account of the offending User or Client.
c. Client may terminate this Agreement in accordance with the terms set forth in the Service Order.
d. Upon termination of this Agreement, Client’s and all Users’ access to the Solution shall immediately cease, and Company will terminate all Client and User Passwords, accounts and use of the Solution. Client shall promptly return to Company within 10 days all documentation related to the Platform and all other Confidential Information, including copies thereof except as required to comply with any applicable legal requirement.
e. The following provisions shall survive the expiration or earlier termination of this Agreement: Sections 4, 5, 8(e), 8(g), 9, 10, 11, 13, 15 and 16 and any other provision which by its nature is intended to survive the expiration or termination of this Agreement. All other rights will cease upon termination.
f. Company may delete Client Data from the servers at any time after 30 days following the Effective Termination Date.
g. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally, or via email or registered mail, postage prepaid, in each case to the respective addresses of the parties as set forth above or to such other address subsequently provided for the purpose of receiving notices, reports, approvals or consents.
9. Confidentiality.
a. Each party agrees to keep confidential and not disclose or use, except in performance of its obligations under this Agreement, confidential or proprietary information related to the other party’s technology or business that the receiving party learns in connection with this Agreement. Company’s Confidential Information include, but is not limited to, the pricing and terms and conditions of this Agreement, Passwords, its features and mode of operation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, Platform design and architecture, the Platform Code, know-how, format, database structure or maintenance, underlying ideas, underlying design techniques, underlying user interface techniques or algorithms, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, documentation, and other technical, business, product, marketing and financial information, plans and data of the Platform. Client’s Confidential Information includes, but is not limited to, Client Data and Client IP.
- Each party agrees to hold the Confidential Information in strictest confidence and shall not use (except as expressly authorised by this Agreement) or disclose Confidential Information without the prior written consent of the other party during the term of this Agreement and for a period of three years after the termination of this Agreement.
- Confidential Information shall not include information the receiving party can document (a) is in or (through no improper action or inaction of the receiving party) becomes part of the public domain; (b) was rightfully in its possession or known by it prior to receipt from the disclosing party; (c) was rightfully disclosed to it by another person without restriction; or (d) was independently developed by it by persons without access to and without use of any Confidential Information of the disclosing party. Each party, with prior written notice to the disclosing party, may disclose such Confidential Information that is required to be disclosed pursuant to the lawful requirement or request of a governmental entity or agency, provided that reasonable measures are taken at the disclosing party’s expense to guard against further disclosure, including without limitation, seeking appropriate confidential treatment or a protective order, or assisting the other party to do so.
10. Limited Warranty and Disclaimer.
The Solution is provided “as is.” except as otherwise expressly set forth in section 5(c), company disclaims all warranties, express or implied, including, but not limited to, warranties of performance or merchantability or fitness for a particular purpose or non-infringement. Company does not warrant that the Solution will operate without interruption or be free of error or completely secure, except as expressly provided in Exhibit A.
11. Limitation of Liability.
Company does not monitor or exercise control over the content of the information transmitted through its Solution. Use of the Solution or any information that may be obtained therefrom is at Client’s risk. Company shall not be liable for any loss of data whether resulting from delays, corruption of data, service interruptions or otherwise. In no event shall Company be liable for any damages, whether in contract or tort (including negligence), including but not limited to direct, consequential, special, exemplary, incidental and indirect damages, including but not limited to any loss of profits or loss of revenue, arising out of or in connection with this agreement or the use, the results of use or the inability to use the service by Client or any User. Except as provided in section 13, in no event shall Company’s total liability under this agreement exceed the amount of fees paid by Client to company during the three calendar month period immediately preceding the date on which the cause of action arose.
12. Enhancements.
a. Company may enhance the Platform and/or Website at its sole discretion on an ongoing basis. Company makes no representation regarding the nature and timing of Enhancements, if any.
b. Company will solicit feedback on the Platform and/or Website from Client. Client may request that Company provide specific Enhancements to the Platform and/or Website. Company may accept or reject such a request in its sole and absolute discretion. If Company accepts the request, Company will use its reasonable best efforts to provide the requested Enhancements to the Platform and/or Website.
13. Indemnification and Defense Obligations.
a. Client shall indemnify, defend and hold harmless Company and the respective officers, directors, shareholders, employees and affiliates (collectively, “Indemnitees”) from and against any and all claims, demands, judgments, suits, actions, damages, liability, losses and expenses (including attorneys’ fees and litigation costs) that any Indemnitee may incur as a result of Client’s or a User’s breach of this Agreement or any User’s use of or inability to use the Solution.
b. Company shall defend or settle any claim brought against Client by a third party that the Platform and/or the Website, when used in accordance with the terms and conditions of this Agreement, violate any South African patent, copyright, trademark or South African intellectual property right of any third party, provided Company shall retain sole control over the defense and settlement thereof, and provided Client gives Company prompt notice of any such claim and provides reasonable cooperation to Company at Company’s expense in the investigation and defense of such claim. If Company believes, in its sole discretion, that the Platform and/or Website infringes a third party’s intellectual property rights, then Company may, at its sole and absolute discretion and at its expense: (a) procure the right to use the Platform and/or Website as provided herein, (b) replace the Platform and/or Website with other non-infringing service or software with similar functionality, (c) suitably modify the Platform and/or Website so that it does not infringe, or (d) if the foregoing options are commercially unreasonable, terminate this Agreement. The foregoing provisions of this section 13(b) state the entire liability and obligations of Company, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any intellectual property rights under this agreement.
14. Publicity.
Company may include Client’s name and logo in its brochures, Client presentations, proposals and website.
15. Dispute Resolution.
a. Company and Client will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof (each, a “dispute”). Company and Client agree to use the following process to attempt to resolve any disputes between Company and Client arising out of or in connection with this Agreement, including any alleged breach. Company and Client each shall designate a representative to resolve such disputes. Within ten days after the party asserting a dispute provides written notice via email to the other party, such representatives shall meet or confer by telephone and fully discuss all disputes in an attempt to achieve a prompt resolution. In the event that such dispute is not resolved within ten business days after such initial meeting or discussion by such representatives, the dispute shall be submitted immediately to senior management representatives designated by each party on its own behalf. Within ten business days after the dispute is submitted to the senior management representatives, such senior management representatives shall meet or confer by telephone and fully discuss such dispute in an attempt to achieve a prompt resolution.
b. In the event of any dispute arising out of or relating to this Agreement that the Parties are unable to resolve, the Parties will in good faith attempt to resolve such dispute through non-binding mediation before a mediator acceptable to both sides. Any dispute not resolved through mediation shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (AFSA) by an arbitrator appointed by the Foundation. The mediation will be held in Stellenbosch, South Africa.
c. Claims for preliminary and final injunctive relief, other pre-judgment remedies, and claims for breach of intellectual property rights or disclosure of Confidential Information may be brought in any court located in Cape Town, South Africa. Any counterclaims or cross-complaints to non-arbitrated actions must be brought in the same forum in which the action is adjudicated.
16. General.
(i) This Agreement is not assignable (including by operation of law), transferable or sub-licensable by Client without the prior written consent of Company; any attempt by Client to do so shall be void; (ii) Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally, or via e-mail or registered South African mail, postage prepaid, in each case, to the respective addresses of the parties as set forth in the Service Order; (iii) Any waivers or amendments shall be effective only if made in writing and signed by both parties. The waiver by either party of a breach of this Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right; (iv) If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable; (v) This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the Republic of South Africa; (iv) A material breach of this Agreement adversely affecting Company’s proprietary rights in the Platform or Company’s Confidential Information would cause irreparable injury to Company, as applicable, for which monetary damages would not be an adequate remedy, and that Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law or equity; (vii) This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement; (viii) Company shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the Solution resulting directly or indirectly from any of the following, without limitation: acts of any governmental body; war; insurrection; sabotage; terrorism; embargo; fire; flood; earthquake or other acts of God; strike or other labor disturbance; interruption of or delay in transportation; unavailability or interruption or delay in telecommunications or third party services (including DNS propagation); failure of third party software or hardware or inability to obtain raw materials; supplies; or power used in or equipment needed for provision of the Solution; (ix) Subject to the restrictions stated herein, this Agreement shall be binding on and shall inure to the benefit of the parties and their respective successors and assigns; (x) Notwithstanding any provision hereof, for all purposes of this Agreement, each party shall be and act as an independent contractor and not as a partner, joint venturer or agent of the other and shall not bind nor attempt to bind the other to any contract; and (xi) Client acknowledges and agrees that the ability of Client to access the Platform is subject to the availability of connection services to and within the Internet and to other network functions within and around the Internet and that the Internet by its nature is not fault-tolerant. Notwithstanding any other provision of this Agreement, Company will not be responsible or liable for: (1) any alterations of or additions to the Platform or Website by a party other than Company, (2) use of the Platform or Website by Client in a manner for which it was not designed, or (3) use of the Platform or Website by Client in a configuration not set forth in the documentation for the Platform or Website or in conjunction with systems, products, or components not reasonably anticipated to be used with the Platform or Website.
Exhibit A
Service Levels
1. Limited Warranty.
a) Company warrants that the Solution will perform substantially in accordance with the performance criteria set forth in this Exhibit A. The foregoing warranty is only for the benefit of Client, and will only apply if (i) the Solution has been used at all times in accordance with the terms of the Service Agreement and other instructions for use provided by Company; and (ii) no modification, alteration or addition has been made to the Solution by persons other than Company, Company’s authorised representatives, or Client’s personnel working in conjunction with Company. Company does not warrant the results obtained through use of the Solution. Additionally, Company is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system of Client, a User or any third party, nor is Company responsible for problems that occur as a result of the use of the Solution in conjunction with software of third parties or with hardware that is incompatible with the operating system and web browser with which the Solution is intended to be used.
b) As Company’s entire liability and Client’s exclusive remedy for the breach of the foregoing warranty, Company shall, at its sole option, use reasonable efforts to repair or replace the nonconforming elements of the Solution. If neither of the foregoing options is commercially practical, Company will terminate this Agreement and provide a pro-rata refund to Client for periods following the date of termination.
c) In addition to the support and maintenance information and terms included in this Agreement, Company may provide Client and Users with additional guidance and material related to support and maintenance in order to ensure the optimal functionality of the Solution. Where a conflict exists between the support levels specified in this Agreement and any additional guidance and material provided to Client and/or Users, the terms of this Agreement shall prevail.
2. Availability, Support and Maintenance.
Based on the Standard Support Plan, Company will use commercially reasonable efforts to ensure the Solution is made available according to the Service Levels specified in the table below.
| Support Level | Standard Support Plan |
| Availability (Up-Time) (a) | 99% |
| Incident Report Times (b) | Mon-Fri 9am-5pm, excluding public holidays |
| Incident Response Times (b) | 24 hours from time incident reported; if reported outside Incident Report Time, within 24 hours of next 9am or 48 hours, whichever is earlier. |
| Incident Resolution Times (b) | Subject to nature of incident reported. |
| Telephone support for Severity 1 and 2 incidents (9am – 6pm, Mondays to Fridays) (c) | Excluded |
| Monitoring and alerting services for custom integration (d) | Excluded |
| Dedicated support team (e) | Excluded |
d) Availability per month of hosted web services for access by Client and Users shall be as set out above. Availability shall have the meaning as defined below.
e) Response Times and Resolution Times for incidents reported shall be as set out above. All times are South African Standard Time (SAST). “24/7” shall mean 24 hours per day, Mondays to Sundays, including holidays. Severity Levels are defined as follows:
| Severity Level | Description |
| Severity 1 | Critical – Production issue affecting all users; System unavailability; Data integrity issues |
| Severity 2 | Urgent – Persistent issue affecting many users; Major functionality is impacted; Significant performance degradation |
| Severity 3 | High – System performance issue or bug affecting some but not all users |
| Severity 4 | Medium – Inquiries about routine technical issues; Information requests on application capabilities, navigation, installation or configuration |
f) For Premium Support Plan only, Company will provide Client and Users with telephone support for Severity 1 and 2 incidents reported during 9am – 6pm, Mondays to Fridays, excluding holidays, in addition to email and online support available for both Standard and Premium Support Plan.
g) For Premium Support Plan only, and where custom integration between the Platform and the Client’s enterprise system is included in the Service Order, the integration broker connecting the Client’s enterprise system to the Platform will be configured to monitor error conditions occurring in any part of the integration architecture as described in section 4 below.
h) For Premium Support Plan only, Company will provide Client with access to dedicated support personnel.
4. Containment Plans.
In the case of Severity 1 and 2 incidents, Company will determine and execute the necessary activities to minimize the impact of the issue on service availability.
Containment activities will be performed to:
- Counteract the immediate threat;
- Prevent propagation or expansion of the incident;
- Minimize the actual and potential damage; and
- Preserve information relevant to the incident.
4. Monitoring and Alerting Services for Custom Integration.
The Company Integration Broker will be configured to monitor error conditions occurring in any part of the integration architecture, including:
- Errors returned by the API (whether network errors or otherwise);
- Errors returned by API’s on the Client’s enterprise system;
- Internal system issues within the integration broker such as process monitoring and system vitals monitoring; and
- Service availability issues with the integration broker (external electronic communications (“pings”) to confirm system is continuously running).
Error alerts will be configured to be sent via electronic mail automatically to an email address nominated by the Client.
5. Mechanics for Reporting Incidents and Unavailability; Credits.
Client must report Unavailability (defined below) and support issues and incidents as follows:
- By sending an electronic mail to [email protected];
- By calling the dedicated telephone number provided to Client during the times specified in section 2 (Premium Support Plan only).
Credit to Client’s account shall be Client’s sole and exclusive remedy for unavailability. Credits shall be calculated as the daily equivalent of the monthly Fee, calculated with reference to the number of calendar days of the Term of this Agreement, applied for each 24 hour period of Unavailability and any portion of such a 24 hour period. Credits shall be suspended if Client is in Payment Default.
6. Restrictions.
Credits shall not be provided to Client in the event that Client experiences Unavailability resulting from (i) scheduled maintenance, (ii) Client’s misuse of the Solution or the performance or failure of Client’s equipment, facilities or applications, or (iii) circumstances beyond Company’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, terrorism, sabotage, embargo, fire, flood, earthquake or other acts of God, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Solution.
7. Definitions.
Unavailability. Company’s Platform and Client’s Website shall deem to be Unavailable if Client’s reasonably upgraded hardware, software and operating system is functioning properly, but cannot achieve access to the Platform and/or Website. Unavailability shall not be deemed to occur as a result of Company maintenance activities; acts of omission by Client, failure of Client hardware or software or events beyond Company’s reasonable control, including Unavailability due to third party service provider and data center issues, mobile network connectivity and/or mobile device hardware failure.
8. General.
a) To obtain support from Company, Users are required to contact Company in terms of section 5. Users are required to carefully document the support issue or incident and answer all the Company questions so Company can efficiently serve Users.
b) Support is offered to Client on a good faith, diligent efforts basis only. Company may not be able to resolve every request for support given the interdependency of the Code with, without limitation, Client desktop browsers, browser plug-ins, firewalls, Web traffic filtering/priority devices and other Client hardware and software.
c) Support is provided for ongoing use of the Solution; it is not intended to be a substitute for answering “how to” questions, training or professional service necessary for the implementation or system redesign of the Solution. Such services requested by Client not deemed to be support services by Company shall be charged to Client at Company’s then current rates. Company shall not perform such non-support services without Client approval. Company, in its sole discretion, has the right to approve or reject whether an issue is a valid request for support.
d) Software development services out of scope of services agreed to in Service Order shall be charged to Client at Company’s then current rates. Company shall not perform such development services without Client approval.