YEP is a leading South African company that delivers local commercial search solutions as well as digital services to the local SME and corporate market, and provides a range of comprehensive products and/or services in areas of web development; domain registration and hosting; marketing; print and digital advertising solutions to businesses.
Customer has specific product and/or service requirements that are akin to those offered by YEP.
Customer wishes to subscribe to the Products and/or Services from YEP and YEP has agreed to provide such Products and/or Services to Customer subject to the following General Terms (hereinafter defined).
Interpretation
In these General Terms:
an expression which denotes: (i) any gender includes the other genders; (ii) a natural person includes a juristic person and vice versa; (iii) the singular includes the plural and vice versa.
the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of these General Terms, shall not apply.
Unless the context indicates a contrary intention the words and expressions defined in clause 3 shall, throughout these General Terms, bear the meanings assigned to them in that clause 3 and cognate expressions shall bear corresponding meanings.
Words and expressions defined in an annex shall, in that annexes, bear the meanings assigned to them and cognate expressions shall bear corresponding meanings.
Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
The word "clause" refers to clauses of these General Terms.
Any reference to "days" shall be construed as being a reference to calendar "days" unless qualified by the word "business".
The words "include" and "including" means "include without limitation" and "including without limitation". 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.
Terms other than those defined within these General Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the information technology industry will be interpreted in accordance with their generally accepted meanings.
Defined terms appearing in these General Terms in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their ordinary meaning as qualified by clause 2.8 and shall, unless the context otherwise indicates, include the term as defined.
Clause headings are included for convenience only and are not to be used in the interpretation hereof.
Definitions
Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
“Activate or Activation” means the activation of the Products and/or Services for access and use by Customer on Activation Date;
“Activation Date” means the date of Activation;
“Agreement” means collectively, the agreement entered into between YEP and Customer consisting of, inter alia, the YEP Terms and any Order Form, or addendum thereto, completed and Signed by Customer;
“Applicable Laws” means any statute which includes without being limited thereto, Companies Act, NCR, CPA, ECTA and RICA, including any regulation, directive, or subordinate legislation; the common law; any binding court order as between the Parties, judgment; any applicable securities industry code, standard enforceable by law; or any applicable direction, policy or order that is given by the Authority where there is an onus on the Parties to adhere to the aforesaid;
“ARB” means the Advertising Regulatory Board, being a self-regulatory non-profit company, which regulates the content of advertising geared to ensure adherence to the Code of Advertising Practice as prescribed by section 55 of the ECA;
“Authority” means any agency, tribunal, commission, regulator, self-regulatory body or other similar body having jurisdiction over the Deliverables and/or Services activities or operations of any of the Parties in any territory that is applicable to this Agreement, including without limitation, Information Regulator, ICASA and ARB;
“Affiliate(s)” means, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity. The term "Affiliate" will also include:
a subsidiary of such entity, as the term "subsidiary" is defined in section 3 of the Companies Act 71 of 2008, as amended; and
any foreign company which, if it were registered under such Act, would fall within the ambit of such term.
“Best Industry Practices” means the best industry practice, quality standards and requirements prescribed by ICASA, WASPA and ARB;
“Business Day” means any day other than a Saturday and a Sunday and/or a Public Holiday as gazetted by the government of the Republic of South Africa from time to time;
“Business Hours” means hours between 08h00 (eight hundred hours) and 17h00 (seventeen hundred hours) on any Business Day;
“Confidential Information” means any and all information, documentation or knowledge in any form, relating to the business and assets of either Party, not generally known to the public, disclosed to, or which may be obtained directly or indirectly by either Party to the other, or which may be derived in any way by it as a consequence of the performance of its obligations hereunder, and shall also include terms of this Agreement. Confidential Information excludes information or data which:
is lawfully in the public domain at the time of disclosure thereof by a Party to the other Party; or
subsequently becomes lawfully part of the public domain by publication or otherwise; or
is or becomes available to a Party from a source other than the disclosing Party which source is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the other Party; or
is disclosed pursuant to a requirement or request by operation of law, or court order but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed; provided that –
the onus will at all times rest on the disclosing Party to establish that such information falls within such exclusions;
the information disclosed will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party's possession;
any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in a Party's possession, but only if the combination itself is in the public domain or in a Party's possession; and
the determination of whether information is Confidential Information will not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;
“CPA” means the Consumer Protection Act, 2008 (Act No. 68 of 2008), as amended;
"Customer" means a party identified on the Order Form, or in any addendum thereto, relating to the relevant Products and/or Services or product subscribed for by Customer, which may be in either telephonic or physical paper/written or electronic format;
“Customer Contact” means the Customer’s contact information for receipt of any communications or Legal Notices from YEP which contact is specified in the Order Form;
"Customer Identifiers” means usernames, passwords or email addresses provided to Customer as part of the Products and/or Services, but expressly excluding Customer domain names not managed by YEP as part of the Products and/or Services;
“Data Protection Agreement” means the agreement to be signed between the Responsible Party and Operator, authorizing the Operator to Process the Personal Information in line with the Purpose;
Data Protection Legislation” means any other legislation relating to the protection of personal information and/or data privacy in the Republic of South Africa or beyond, where applicable;
“Data Subject” means the person to whom Personal Information relates;
“ECA” means the Electronic Communication Act, 2005 (Act No. 36 of 2005);
“ECTA” means the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002);
"Effective Date" means the date upon approval of the Order Form by YEP notwithstanding the Signature Date and/or Start Date selected on the Order Form;
“Electronic Signature” means the electronic signature as defined in section 1 of ECTA;
"General Terms" means these terms and conditions;
“ICASA” means the Independent Communications Authority of South Africa established in terms of the ECA;
“Industry Bodies” means any relevant registered industry body which includes amongst others, WASPA, ISPA and ARB;
“Industry Standards” means the prescribed standards set by the Industry Bodies and applicable to the Products and/or Services;
“Information Regulator” means the Regulator established in terms of POPIA for the regulation of use of Personal Information;
"Intellectual Property” means any and all intellectual property including, without limitation, internal scoring methodology, Customer Journey, the trademarks, service marks, trade names, domain names, designs, patents, petty patents, utility models and like rights, in each case whether registered or unregistered and including applications for the grant of any of the aforementioned; copyright (including, without limitation, rights in computer programs and data bases and moral rights), inventions, designs, know-how, confidential information, trade secrets, and all rights in and to any of the aforementioned, and all rights or forms of protection having equivalent or similar effect to any of the aforementioned, which may subsist in any country in the world;
“IP Address” means a globally unique numerical identifier of a node connected to the Internet;
“Legal Notices Page” has the meaning ascribed to it in clause 4.4;
“Legal Website” has the meaning ascribed to it in clause 4.1;
“Licensed Products” means the Third Party Service Providers of products enabled for use by YEP as part of its Product and/or Service offering to Customer which licensed products include without being limited thereto and if applicable, Google, Facebook, Twitter and LinkedIn;
"Marks" means any trademarks, logos, brand names, domain names or other marks of either of the Parties;
“Operator” means a Third-Party Service Provider who Processes Personal Information for a Responsible Party in terms of the mandate as set out in Data Protection Agreement but does not come under the direct authority or control of the Responsible Party;
“Order Form” means the Order form completed and Signed by the Customer for subscription to the Products and/or Services;
“Personal Information” means information relating to an identifiable, living, natural or juristic person as fully defined in section 1 of POPIA and/or Data Protection Legislation;
“Personal Information Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, Personal Information transmitted, stored, or otherwise Processed;
“Personal Information Consent Agreement” means the agreement to be signed between the YEP and Data Subject giving consent to Process the Personal Information in line with the Purpose;
“POPIA” means Protection of Personal Information Act, 2013 (Act No. 4 of 2013);
“Privacy and Data Protection Requirements” means the 8 (eight) requirements for the lawful Processing of Personal Information contained in Chapter 3 of POPIA;
“Process" and "Processing” means any operation or activity or any set of operations, whether or not by automatic means, concerning Confidential Information, including its collection, receipt, recording, organization, collation, storage, updating or modification, merging, linking, blocking, degradation, erasure or destruction retrieval, alteration, consultation, testing or use, dissemination or distribution by any means;
“Platforms” means the YEP’s online and/or digital platforms including any other platforms enabled and managed by YEP or its Affiliates for the marketing and promotion of the Products and/or Services including any other promotional offerings of YEP, which platforms shall be added from time to time by YEP, as and when enabled for use by Customers and/or Users;
“Platform Terms” means the terms and conditions applicable to all Customers and/or Users of YEP’s Platforms including access and use thereof via Yep Online Market Place and published at https://www.yep.co.za
“Products” means the: (i) YEP product selected by YEP in the Order Form, in consultation with Customer during the course of sales, presented to and accepted by Customer to enable subscription to such products by Customer via the YEP Portal; or (ii) the YEP product selected by Customer in the Order Form and submitted to YEP for approval to enable subscription to such products by Customer via the YEP Portal;
"Products Terms" means the terms and conditions of that name referred to in clause 5 below;
“Purpose” means the purpose for use and/or Processing of Personal Information as fully described in clause 17 below and specified in the Personal Information Consent Agreement;
“Responsible Party” means the party who determines the purpose of and means for Processing Personal Information and for the purposes of this Agreement, Responsible Party shall mean YEP;
“Services” means the: (i) YEP services selected by YEP in the Order Form, in consultation with Customer during the course of sale, presented to and accepted by Customer to enable subscription to such services by Customer via the YEP Portal or (ii) the YEP services selected by Customer in the Order Form and submitted to YEP for approval to enable subscription to such products by Customer via the YEP Portal;
"Services Terms" means Product Terms name referred to in clause 5 below;
“Signed or Signature” means the electronic signature as defined in terms of section 1 of the ECTA which for our purposes will be in the form of “clicking accept” in the Order Form and YEP Terms;
“Signature Date” means the date and time on which the Order Form is Signed;
“Start Date” means the date on which Customer uses the Products and/or Services notwithstanding Activation or Activation Date;
“Subscription Fees” means fees and charges payable by Customer to YEP in respect of the Products and/or Services, which Subscription Fees are as set out in the Order Form(s), and any addenda thereto, completed and signed by Customer in respect of the Products and/or Services;
“Third Party Products and/or Services” means the third-party products and/or services promoted and sold to Customer via YEP Portal by YEP as a reseller of such products and/or services on the terms and conditions of the Third-Party Supplier;
“Third Party Service Provider” means the service provider to YEP for the provision of the Licensed Products required by YEP as part of its Product and/or Service offering to Customers;
“Third Party Supplier” means the supplier of the Third-Party Products and/or Services promoted and sold by YEP via the YEP Portal which includes amongst others, Telkom Mobile;
“Third Party Supplier Terms” means the Third-Party Supplier terms and conditions applicable to the Third-Party Products and/or Services as communicated directly to Customer by the Third-Party Supplier; and
"YEP Terms" means the Product Terms, Services Terms, Use Policies, and these General Terms;
"YEP” means YEP Proprietary Limited with Registration Number 1992/002329/07, a private company incorporated and registered under the laws of the Republic of South Africa, with its address situated at Block F, Eastgate Office Park, 24 South Boulevard, Bruma, 2198;
“YEP Portal” means the e-commerce portal provided by YEP and enabled for access and use by Customer in order to (a) interact with YEP, (b) subscribe to Products and/or Services; (c) manage its Products and/or Services etc.;
“Upstream Providers” means the telecommunications service providers used by YEP to offer the Products and/or Services; and
"Use Policies" means the terms and conditions of that name referred to in clause 6 below.
Introduction
YEP provides its Products and/or Services to Customers subject to the General Terms as well as the following additional terms and conditions:
the Product Terms;
the Use Policies; and
Privacy Policy.
These General Terms, the Product Terms and Use Policies are published at http://YEPdigital.co.za/legal (the “Legal Website”) under such respective headings.
Regardless of the manner in which Customer has contracted with YEP for the receipt of or subscription to the Products / Services (whether by means of the conclusion of a written agreement, electronic application or by telephonic registration), these General Terms shall bind Customer when Customer contracts for a new or additional Products and/or Services or when Customer changes or adds to the Services which it receives
YEP reserves the right, at any time, to amend any of the YEP Terms to which Customer is bound, including but not limited to these General Terms, via electronic notice to Customer. For these purposes, Customer is reminded to keep its Customer Contact up to date at all times as the last Customer Contact will be utilized for these purposes. An updated version of the YEP Terms will be posted at URL: http://YEPdigital.co.za/legal under the heading Legal Notices (the "Legal Notices Page") at least 30 (thirty) days prior to the date upon which they become effective.
Customer agrees that it is its responsibility as a diligent user to peruse any amended YEP Terms as notified to Customer and posted on the Legal Notices Page and Customer undertakes to regularly visit the Legal Notices Page so as to remain appraised of such amended YEP Terms.
If Customer objects to any amended YEP Terms which are binding upon it or are to become binding upon it, Customer is entitled to terminate its relationship with YEP upon the terms and conditions set forth in clause 13 below.
Product Specific Terms
The Product Terms represent the terms and conditions within the YEP Terms that govern its use of YEP's individual Products and/or Services selected by Customer via the YEP Portal. For the avoidance of doubt, it is recorded that Customer may use and/or select one or more different Products and/or Services. To the extent that any Product Terms are binding upon Customer, those Product Terms are deemed included in these General Terms, together with such other YEP Terms as may be binding upon Customer.
Customer will only be bound by such Product Terms as are applicable to the particular YEP Products and/or Services that Customer uses, and Customer will immediately be so bound upon Activation thereof regardless of whether Customer uses same. To the extent that Customer uses any one or more Products and/or Services offered by YEP, Customer acknowledges that it is bound by the particular Product Terms relating to the Products and/or Services that it uses. The Product Terms, as amended from time to time, are communicated electronically to Customer Contact and posted on the Legal Website under the heading Product Terms as envisaged in clause 4.4 above and the Product Terms applicable to a specific Products and/or Services shall have the same name as such Products and/or Services.
For avoidance of doubt, unless the contrary is evident from the construction of a particular provision in any Product Terms, any term defined in these General Terms and used in any Product Terms shall bear the meaning as defined herein.
Use Policies
The Use Policies represent the terms and conditions pertaining generally to Customer's use of the Products and/or Services and will commonly include, without limitation, privacy and confidentiality terms and conditions, use rules, security policies and similar polices which are, in most instances, of general application to all YEP customers regardless of the Products and/or Services which they may use. The Use Policies are deemed to be applicable to all YEP customers unless specifically stated to the contrary in any Product Terms, which are also binding upon Customer. To the extent that any Use Policies are binding upon Customer, such Use Policies are deemed included in these General Terms together with such other YEP Terms as may be binding upon Customer.
Customer is required at all times to comply with the Use Policies which are deemed to form part of the YEP Terms. The Use Policies, as amended from time to time are communicated electronically to Customer via Customer Contact and posted on the Legal Website under the heading Use Polices as envisaged in clause 4.4 above
To the extent that any Products and/or Services used by Customer are subject to a specific use term as identified in the applicable Product Terms, the Use Policies shall be deemed to be augmented by such specific use terms for the purposes of use by Customer of that particular Products and/or Services.
For avoidance of doubt, unless the contrary is evident from the construction of a particular provision in the Use Policies, any term defined in these General Terms and used in the Use Policies shall bear the meaning as defined herein.
Terms And Conditions Regarding Use Of Third-Party Service Provider Products
Customer acknowledges that YEP as part of its Products and/or Services offering utilises the Licensed Products of Third-Party Service Providers in order to ensure quality and effective operation, functionality and use of the Products and/or Services by Customer.
YEP is duly authorized to use the Licensed Products as part of its Products and/or Service offering to customer for a fee.
Where YEP is obliged in terms of the agreement with Third Party Service Provider to ensure compliance by Customer with Third Party Service Provider licensing terms, in respect of the use of Licensed Products by YEP as part of its Product and/or Service offering, Customer acknowledges that the Licensed Products are made available on the understanding that such use is subject to the YEP Terms.
Third Party Suppliers
Customer acknowledges that YEP as part of its product offering, markets, promotes and on sells Third Party Products and/or Services via the YEP Portal as a reseller to Third Party Suppliers and has for these purposes entered into a reseller agreement with such Third-Party Suppliers.
Customer acknowledges further that,
where Customer selects Third Party Products and/or Services via the YEP Portal, Customer will be redirected to the relevant Third-Party Supplier for the subscription to Third Party Products and/or Services directly with the Third-Party Supplier and on Third Party Supplier Terms;
in the event that Customer subscribes to Third Party Products and/or Services, Customer will be bound by the Third-Party Supplier Terms including payment obligation pertaining to the access and use of the Third-Party Products and/or Services. Customer is advised to read such Third-Party Supplier Terms prior to accepting same;
YEP will not charge Customer directly for the use of Third-Party Products and/or Services nor be responsible for managing payments thereof by Customer; and
YEP will not manage the provision of the Third-Party Products and/or Services and such management remains solely with the Third-Party Supplier.
Customer Status
YEP customers may be incorporated entities (such as companies and close corporations), partnerships or individuals.
To the extent that a person enters into an Agreement, including the YEP Terms in a representative capacity on behalf of Customer who is an incorporated entity or on behalf of an unincorporated association or partnership of individuals or in any other representative capacity recognized in terms of South African law, Customer hereby warrants that such person is legally authorized to do so and indemnifies YEP against any loss or damage that YEP may sustain resulting from such person’s lack of authority.
To the extent that the Agreement is Signed by a person acting in a representative capacity on behalf of Customer, the Signing party hereby warrants that all of the information relating to the entity, partnership, association or other person whom he/she represents and which he/she has supplied to YEP at any time will be true, accurate and complete. YEP reserves the right to treat all misrepresentations by Customer or its representatives as a fraud and such person indemnifies YEP against any loss or damage that YEP may sustain resulting from such person’s lack of authority.
If YEP discovers that Customer has fraudulently contracted for receipt of Products and/or Services or that its representatives have contracted without contractual capacity to do so, YEP will be entitled to terminate the Agreement and/or or Products or Services immediately without any further liability to Customer whatsoever and Customer will not be entitled to claim any restitution or refund of any amount already paid regardless of whether Customer used the Products and/or Services or not.
Commencement And Duration
Customer acknowledges and agrees that the Agreement and the YEP Terms shall subject to Customer’s credit vetting approval, become binding on Customer with effect from the date of receipt of the duly Signed Order Form by YEP notwithstanding the Activation Date. For the avoidance of doubt, Customer acknowledges and agrees that YEP shall:
not be obliged to notify Customer either in writing or verbally that YEP has received the duly signed Order Form;
not be obliged to send a written or electronic notice to Customer advising Customer that its/his/her credit vetting has been approved; and
send a written notice to Customer advising Customer that its/his/her credit vetting has not been approved and as such, the Agreement and/or YEP Terms will no longer be binding on the Parties as envisaged in clause 10.1 above.
Customer acknowledges that the implementation and Activation of the Products and/or Services might not be effected on the above-mentioned date and shall therefore not terminate the Agreement and the YEP Terms as a result of any delay caused by either YEP and/or Upstream Providers and/or Third Party Service Providers with regard to the implementation and Activation of the Products and/or Services, provided YEP uses its reasonable commercial endeavours to implement and Activate the Products and/or Services for use by Customer within a reasonable time.
The Parties undertake to do all such things, perform all such acts and take all such steps and procure the doing of all such things, performance of all such acts and the taking all of such steps as may be necessary, incidental or conducive to the implementation of the terms and conditions of this Agreement. In particular, Customer shall accept Activation of, and provision of the required Products and/or Services whenever tendered by YEP.
Customer further acknowledges that the Term of all Products and/or Services is for an indefinite period unless:
Customer has contracted for a particular Products and/or Services with YEP in respect of which there is a minimum duration or initial period as set out in the Product Terms and/or Order Form;
Customer has terminated the Products and/or Services in terms of the provisions of clause 13 below.
In case of those Products and/or Services in respect of which a minimum duration or initial period applies, Customer’s right to terminate prior to the expiry of the minimum duration or initial period is limited and any termination thereof will be effective on the expiry date of the minimum duration or initial period. The Customer remains obligated to pay the Subscription Fees until the expiry thereof.
Customer Identifiers And Ip Address
Any Customer Identifiers allocated to Customer or created by Customer using the Products and/or Services will, subject to Customer remaining in compliance with the YEP Terms, entitle Customer to access the Products and/or Services for which Customer has contracted. Customer Identifiers are personal to Customer and Customer will be liable for any loss or damage sustained by YEP or by any third party as a result of any actions by Customer or any other person to whom Customer has disclosed its Customer Identifiers. Customer is accordingly advised to keep its Customer Identifiers confidential. Customer agrees to advise YEP immediately should any other person gain access to its Customer Identifiers. In addition, Customer hereby indemnifies YEP against any claim howsoever arising from: (i) Customer's disclosure of its Customer Identifiers to a third party; (ii) the use of such Customer Identifiers by a third party and/or (ii) any action by Customer or third party as a result of it. Customer shall not permit and/or initiate a simultaneous network logon while utilizing one username and not attempt to circumvent YEP’s user authentication processes or attempt to gain access to the Products and/or Services if it is not expressly authorized to do so.
While the Customer Identifiers and/or IP Address(es) are personal to Customer, Customer acknowledges them to be YEP’s property and accordingly, Customer may not sell, lease, transfer, assign or otherwise alienate its rights in respect of the Customer Identifiers and/or IP Address(es), and the use of such Customer Identifiers and/or IP Address(es) shall only be for the duration of the Products and/or Services it has been allocated for.
Subscription Fees, Charges And Payment
Unless otherwise stated in the relevant Product Terms and/or in clause 12.8 below, all Subscription Fees payable by Customer in terms of the YEP Terms for Products and/or Services are payable in arrears.
YEP shall at the beginning of every month withdraw any Subscription Fees and any other fees payable (once off installation or set up fees and/or ad hoc fees (collectively “Other Fees”), from the bank account as specified in the Order Form and/or invoice Customer in respect of the monthly Subscription Fees and/or any Other Fees payable in terms of the Agreement. In those cases where the relevant Order Form indicates otherwise, payment shall be made in terms of the period specified in the Order Form.
For the purposes of this clause 12 “month” or “monthly” may not refer to a calendar month, but to a billing month as determined by YEP from time to time. For the sake of clarity, ‘billing month’ means the month within which the Order Form is approved by YEP notwithstanding Activation Date or Start Date.
Subscription Fees are due on a monthly basis, and Customer hereby authorizes YEP to effect the necessary transfers from Customer’s designated bank account on the date stipulated by Customer or the Order Form for the continued duration of the Agreement or relevant Products and/or Services.
To the extent that Customer elects to be invoiced rather than utilize the electronic transfers mechanism described in clause 12.4 above, YEP will invoice Customer monthly in arrears, in respect of the Subscription Fees or Other Fees payable in terms of the Agreement and the Customer shall be obliged to pay such Subscription Fees on the payment date specified on the invoice. Save as set out herein or otherwise agreed to the contrary in the YEP Terms, YEP shall be under no obligation to send invoices and/or statements to Customer. As such, Customer waives the benefit of a defense to non-payment based upon late or non-receipt of monthly invoices and/or statements.
It is specifically recorded that, in respect of specific Products and/or Services, the payment mechanism may be set forth in such Product Terms and/or an Order Form. In such instances, payment of the amounts owing by Customer will be effected in accordance with the provisions contained in the Product Terms and/or Order Form.
Customer acknowledges and agrees that Other Fees paid by Customer in particular the project take-on fees for Products and/or Services shall under no circumstances be refundable.
Where Customer's use of any Products and/or Services commences during a month rather than at the start of that month, Customer will be charged on a pro rata basis for those Products and/or Services provided during that month.
YEP reserves the right to amend or vary the Subscription Fees from time to time and any amendment or variation to such Subscription Fees will be deemed an amendment of the YEP Terms. In the event that YEP do amend its Subscription Fees, it will give Customer at least 30 (thirty) day's prior notice of such amended Subscription Fees. If Customer objects to any amended or varied Subscription Fees which affects it, it shall be entitled to terminate its relationship with YEP upon the terms and conditions set forth in clause 20.1 below.
Customer acknowledges that it is not entitled to withhold any payment of any Subscription Fees due to YEP by reason of any alleged breach of the YEP Terms by YEP or for any other reason whatsoever. In addition, Customer acknowledges that it is not permitted to apply set off to or demand any discount, rebate, or reduction in respect of any Subscription Fees owed to YEP.
To the extent that YEP incurs any additional expenditure relating to the tracing and/or collection of unpaid Subscription Fees, those costs shall be for the account of Customer.
In all instances, regardless of the means by which Customer contracts for any of the Products and/or Services, Customer acknowledges that it is its responsibility to familiarize itself with the Subscription Fees and/or Other Fees and the date of payment of the Subscription Fees and/or Other Fees applicable to such Products and/or Services. Upon Customer acceptance of any YEP Terms or the Agreement, Customer will be deemed to have agreed to the Subscription Fees and/or Other Fees in respect of the Products and/or Services for which Customer has contracted.
Should Customer ever dispute YEP's authority to receive payment by any means whatsoever, Customer acknowledges that any use by Customer of any Products and/or Services in a month in respect of which such payment is disputed or any acceptance by Customer of any of the YEP Terms will constitute an authorization by Customer in favour of YEP to receive payment of its Subscription Fees and/or Other Fees.
The Subscription Fees due and payable by Customer to YEP at any time shall be determined and proved by a certificate signed by either the Chief Financial Officer or Financial Manager of YEP, whose appointment, qualification and authority need not be proved.
Should Customer fail to pay any Subscription Fees owing to YEP on due date, YEP shall be entitled, in its discretion and without prejudice to any other rights which it may have, to suspend performance of its obligations pending full payment by Customer.
In the event that Customer’s payment is stopped, unmet by its bank or returned unpaid, YEP shall be entitled to charge Customer a processing fee of R 200.00 (two hundred Rands) per failed payment, along with all other fees outstanding and any legal costs incurred.
In the instances where the Agreement in respect of any Products and/or Services applied for, specifies a minimum duration or initial term and a Customer cancels or purports to cancel the Agreement in respect of such Products and/or Services, or the agreement is cancelled by YEP in terms of clause 13 of these General Terms, prior to expiration of such minimum duration or initial term, the remainder of all monthly payments payable during such minimum duration and/or initial term shall immediately become due and payable to YEP.
In addition to the foregoing, YEP shall be entitled to charge interest at a Prime Rate, plus 2% (two percent) on any Subscription Fees due and payable by Customer to YEP and not paid within 14 (fourteen) days of due date.
The Customer shall be liable for any and all expenses incurred by YEP on an attorney and own client scale whether incurred prior to or during institution of legal proceedings or if judgement has been granted, in connection with the satisfaction of such judgement, in regard to the enforcement of this agreement.
The Customer agrees that in the event that any amounts are owing to YEP by Customer and YEP being in possession of any of Customer’s property, YEP shall have a bona fide lien over such property and shall have the right to retain such property until all outstanding amounts have been paid to YEP.
Customer acknowledges that, subject to YEP being required to do so by any law of any jurisdiction in which Customer is resident or to which Customer is subject, YEP is entitled to receive and claim payment from Customer in respect of any value added taxation and/or sales tax or any other similar statutory tax or levy imposed on the provision of Products and/or Services to Customer.
Intellectual Property Rights
Customer is obliged to comply with all laws applicable to any intellectual property rights (including without limitation trade secrets, copyright, trademarks, registered designs, and patents) in respect of any data, files and/or information accessed, retrieved or stored by Customer through Customer's use of the Services.
Customer is prohibited from using any of YEP's Marks without the prior written approval of YEP.
Customer hereby grants YEP a non-exclusive license to use its Marks for the limited purposes of enabling YEP to exercise its rights or to fulfil its obligations under the YEP Terms.
Other than as specifically provided in the YEP Terms, YEP will wholly and exclusively retain all existing and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to its network infrastructure, e-commerce network infrastructure, business and the provision of any of the Services in terms of the YEP Terms.
Confidentiality Undertaking
The Parties undertake not to in any manner whatsoever disclose all or part of the Confidential Information to any unauthorized third party, whether natural or juristic, without the prior written consent of the Parties, which consent will be in the sole discretion of such parties.
The Parties undertakes for an indefinite period to keep confidential and not to disclose to any third party, save as may be permitted in terms of this Agreement, the Confidential Information, the nature, content or existence of this Agreement, including any and all information provided by a Party to the other Party pursuant to this Agreement. In particular, the Parties agree as follows:
to take all reasonable steps to protect the Confidential Information and keep it secure from unauthorized persons and/or access;
to treat this Agreement and Confidential Information as strictly confidential and not to divulge to any third-party other than its affiliates on a ‘need to know basis’ who require such disclosure in order to perform their duties in relation to this Agreement. To this end, the either Party shall:
prior to disclosing the Confidential Information to any of its affiliates and/or representatives, inform such affiliates and/or representatives of the confidential nature of the Confidential Information;
ensure that all representatives and/or resources who are provided with the Confidential Information are bound by appropriate and legally binding confidentiality and non-use obligations;
ensure that any representative and/or resource to which the Confidential Information is to be disclosed, agrees in writing to comply with the terms of this Agreement so that any disclosure and/or use of the Confidential Information by such representative and/or resource in a manner which is contrary to the terms of this Agreement constitutes a breach thereof; and
not to issue any press release, or any other public document or make any public statement and/or announcement or discuss any matter with the media, in each case relating to or connected with or arising out of the Agreement or the matter contained therein (save for any such release, announcement or document which is required to be given, made or published by law or under the rules and regulation of any stock exchange), without communicating same to the Disclosing Party, except as required by law;
to inform the other Party immediately if -
it becomes aware of, or suspects there has been, a breach of the obligations in this Agreement; or
a Party is required by law or Court order to disclose the Confidential Information.
The above undertakings shall not apply to-
Confidential Information which, at the time of disclosure by a Party, as envisaged in this Agreement is published or otherwise generally available to the public;
such Confidential Information which a Party can prove that it was within its knowledge or already in its possession prior to disclosure thereof and not through any breach by such Party, its affiliates and/or representatives of any of the confidentiality obligations;
Confidential Information which after disclosure by a Party is published or becomes generally available to the public otherwise than through any act or omission of the other Party, its affiliates, representative and/or any breach of this Agreement;
Confidential Information which a Party can prove was developed independently and without reference to information provided by the other Party;
Confidential Information rightfully acquired from others who do not owe a confidentiality obligation to a Party, provided such Party was advised of this fact prior to the disclosure; and
Confidential Information which a Party is required by law or any Court order to disclose provided such Party undertakes to limit such disclosure in any manner reasonably requested by the other Party.
Data Protection
YEP undertakes to use its reasonable commercial endeavours at all times to strictly comply with Applicable Laws with respect to the protection of Customer data and Confidential Information in its possession including the rules and codes of conduct prescribed by Industry Bodies.
To the extent that Customer data needs to be stored on the YEP and/or Third Party Service Provider's information technology systems, YEP shall use reasonable commercial endeavours to ensure that the Third Party Service Provider takes appropriate technical and organisational measures including measures prescribed by POPIA and/or Applicable Laws against unauthorised access to, unlawful Processing, accidental loss, destruction or damage to Customer data.
The security measures taken by YEP and Third Party Service Provider in terms of Clause 15.2 shall not be less rigorous than the security safeguards and practices generally maintained by YEP and Third Party Service Provider in respect of their respective data which includes ensuring risk measures as prescribed by Industry Bodies and/or Applicable Laws;
YEP utilises and operate all necessary back-up procedures to their respective information technology systems to ensure that, in the event of any information system malfunction, unlawful access to and/or loss of YEP’s data, Customer data can be recovered promptly and that the integrity thereof and any database containing such material can be maintained to the Industry Standards.
YEP and the Third Party Service Provider have storage mechanisms which ensure that Customer data is stored separately and isolated from data and property relating to YEP, Third Party Service Provider or any customer or third party (including Third Party Suppliers or any other entity with whom YEP and/or the Third Party Service Provider may conduct business).
Without limiting any of the Parties’ obligations under this clause 15, the Parties will co-operate in implementing any system changes which may be required due to changes in Applicable Laws and/or Industry Standards relating to data protection.
Protection Of Personal Information
Without limiting the Privacy Policy, YEP as the Responsible Party shall comply with its obligations under POPIA in respect of Personal Information collected and/or Processed in connection with the Agreement and the Products and/or Services.
YEP shall only provide, collect and/or Process the Personal Information:
in compliance with POPIA and where binding on a Party, Data Protection Legislation;
as is necessary for the purposes of the Agreement;
for maintaining its internal administrative processes, including quality, risk, client, or vendor management processes;
for internal business-related purposes; and
in accordance with the lawful Purpose and reasonable instructions of the Responsible Party.
YEP shall (without limiting the Privacy Policy), further ensure that:
in dealing with the Personal Information as the Responsible Party, it complies with the specific security and data privacy obligations imposed on it in terms of POPIA and where binding on them Data Protection Legislation;
(where applicable), it complies with the specific obligations imposed on it in terms of POPIA and/or Data Protection Legislation as the Responsible Party in terms of providing the Products and/or Services;
it takes, implements and maintains all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of the Personal Information in its possession and to protect such Personal Information against unauthorised or unlawful collection, disclosure, access or Processing, accidental loss, destruction or damage.
any Processing of the Personal Information to Third Party Service Providers and/or Third Party Suppliers is allowed upon signature of the Data Protection Agreement by the Third Party Service Provider or Third Party Supplier as the Operator which agreement shall ensure compliance by the Operator with the provision of clause 16.1 above and where such Third Party Service Provider and/or Third Party Supplier’s does not comply with POPIA or where the country from which the aforesaid parties, does not have a Data Protection Legislation;
the Operator is not entitled to Process the Personal Information with any other third party except for the Operator personnel unless a Data Protection Agreement to allow for further Processing of Personal Information by the Operator to a third party is signed by YEP as the Responsible Party. For the avoidance of doubt, the further Processing will always remain compatible with the original Purpose and subject to Privacy Policy and Data Protection Legislation.
the Operator co-operates as requested by YEP to enable YEP to comply with or exercise rights of Data Subject under POPIA and/or Data Protection Legislation in respect of Personal Information Processed by the Operator under the Agreement or comply with any assessment, enquiry, notice or investigation under the Applicable Law, Data Protection Legislation and/or POPIA which shall include the provision of all data requested by YEP within the timeframe specified by YEP in each case, subject to compliance by YEP with POPIA and/or Data Legislation if binding on YEP.
No Personal Information of the Data Subject shall be collected, Processed, and/or shared with any other third party without obtaining written consent from the Data Subject, supported by the Signed Consent to Use Personal Information (“Consent”) and Data Protection, if required.
YEP may notify Customer about important developments, proposals and services which it considers to be relevant to the Products and/or Services and/or improvement thereon, however, YEP undertakes for the Term, not to use or Process the Personal Information to send business offering to Data Subjects including newsletters, invitations to seminars and similar marketing material or other communications. Any such marketing required shall comply in all respects with the provision of CPA relating to direct marketing and provided Customer has given consent thereto.
YEP shall not Process the Personal Information to:
an outsourced information technology service provider except for the Third-Party Service Provider required for the operation of YEP’s business; or
another country, including the use of cloud-based solutions (unless those solution are used by YEP within its business environment and compliant with POPIA and Data Protection Legislation).; or
an Affiliate without prior written consent of the Data Subject or existing Data Protection Agreement.
For the avoidance of doubt, Customer acknowledges and agrees that:
YEP utilises cloud solution and/or services of Third-Party Service Provider which are hosted within South Africa and beyond;
YEP as a reseller of Third-Party Products and/or Services of Third-Party Suppliers which are registered companies in South Africa and beyond;
YEP is required to Process the Personal Information in order to operate its business and/or resell Third Party Products and/or Services and Customer is hereby notified of same and provides YEP with consent to Process the Personal Information for these purposes.
Where consent has been granted in terms of clauses 16.6 and 16.7 above, YEP undertakes in relation to clauses 16.6 and 16.7 for the Term as the Responsible Party, to require that any Third Party Service Provider and/or Third Party Supplier as Operators involved in the Processing or storage of Personal Information, to ensure that such Personal Information is protected with the same Industry Practices and/or protection as is required in terms of Clause 16.3 and the provision of the POPIA and/or Data Legislation binding on it (where applicable) and such Personal Information is kept for a period of 5 (five) years unless a longer period is prescribed by the Applicable Laws.
The Third-Party Service Provider and Third-Party Supplier as the Operators will each be held directly accountable for Personal Information further Processed by their respective personnel including any Personal Information Breach resulting from such further Processing.
Without limiting any other provision of the Agreement, the Responsible Party and Operators shall only use, store, copy and/or Process any Personal Information disclosed to it by YEP pursuant to the agreement to the extent necessary for the provision of the Products and/or Services and/or to support the operations of YEP which use, storage, copy and Processing will conform to the Privacy and Data Protection Requirements.
If at any time YEP and/or Third Party Service Provider and Third Party Supplier suspects or has reason to (a) believe that (a) Personal Information disclosed to it by YEP pursuant to their respective agreement has or may become lost or corrupted in any way for any reason and/or (b) suspects any Personal Information Breach then, YEP shall immediately notify the Information Regulator where required, the Data Subject and inform the Information Regulator and/or Data Subject of what remedial action it proposes to take, if any.
Customer acknowledges that YEP shall keep the Personal Information for a period of 5 (five) years unless retention thereof for a longer period is required by the Applicable Laws. Customer may access the Personal Information at YEP Portal.
Purpose
The Parties record and agree that the Personal Information is required by YEP for amongst others, marketing, promotion and selling of the Products and/or Services including Third Party Products and/or Service and for the provision of such Products and/or Services including Third Party Products and/or Services to Customer. The full purpose of use of Personal Information is as set out in the Consent and Privacy Policy.
In this regard, YEP undertakes for the Term to:
use the Personal Information to fulfil the Purpose in accordance with the requirements of POPIA including those prescribed by Data Protection Legislation and/or WASPA;
to comply with the relevant provisions of ECTA, CPA, POPIA and WASPA with regard to the marketing (including electronic marketing) of the products to the Data Subjects defining how consent to receive the direct marking is obtained and how a Data Subject can ‘opt in’ and ‘opt-out’ from receiving marketing messages.
Breach
If either YEP or Customer breaches any term of the YEP Terms and fails to remedy such breach within 7 (seven) days of written notice requiring it to do so, then the Party not in breach shall be entitled, but not obliged, without prejudice to any rights or remedies which it may have, to cancel the Agreement or to claim immediate performance and/or payment by the party in breach.
Insolvency
Should either Party commit an act of insolvency, make an offer of compromise or composition, become the subject of a liquidation or business rescue proceedings order then the other Party shall be entitled, but not obliged, without prejudice to any other rights which it may have, to terminate this Agreement without any liability whatsoever.
Termination and Suspension
Unless Customer has contracted for particular Products and/or Services in respect of which there is a minimum duration or initial period or in terms of which the termination period is different, either Party may terminate the Agreement together with all Products and/or Services, or any individual Products and/or Services, on 30 (thirty) days written notice to the other Party prior to the expiry of the minimum duration or initial period.
Where Customer has contracted for a particular Products and/or Services in respect of which there is a minimum duration or initial term, as set out in the Order Form or Product Terms, such Products and/or Services may only be terminated at the end of the specified minimum duration. Should the customer wish to terminate the Agreement prior the expiry of the minimum duration, the Customer may terminate the Agreement together with all Products and /or Services, or any individual Products and/or Services, on 30 (thirty) days written notice to Yep, however subject to liability for early cancellation fee applicable for the Product and/or Services
The addresses to which such written notices are to be sent to YEP appears on the Legal Website and that of the Customer the address specified in terms of clause 26.6. Any purported notice of termination sent to YEP at any address not specified on the Legal Website or communicated in any manner other than as specified on the Legal Website may, at YEP’s sole discretion, be deemed invalidly given and without force or effect. A termination notified in terms of this clause 20.3shall take effect upon the first day of the month following the expiry of the 30 (thirty) day notice period, save that where such termination notice is given and received on a day other than the first day of any month, such notice will take effect upon the first day of the following month. YEP reserves the right to charge Customer an additional re-connection fee should Customer request YEP to restore any Services that has been suspended by Customer.
Should Customer be in breach of any of the YEP Terms or the Agreement, then YEP is entitled, without prejudice to any other rights that YEP may have and without notice to Customer, to:- (i) forthwith claim immediate payment of all outstanding charges due to YEP; (ii) terminate or suspend Customer's use of any or all of the Services; (iii) terminate its relationship with Customer and/or (iv) list Customer with any of the credit bureau agencies and (v) to appoint tracing agents as required. In all instances, YEP is entitled to retain all Subscription Fees and charges already paid by Customer and recover all of its costs associated with Customer's breach, including without limitation, legal costs on an attorney and own client scale whether incurred prior to or during institution of legal proceedings or if judgement has been granted, in connection with the satisfaction of such judgement or in regard to the enforcement of the YEP Terms or the Agreement.
Customer acknowledges that where YEP is in possession of any of Customer property in consequence of its provision to Customer of a particular Products and/or Services, and Customer is in default of Customer payment obligations to YEP, YEP shall be entitled to retain such property pending Customer settlement of all amounts owed by Customer to YEP. In addition, where Customer fails to make settlement of all amounts owed to YEP within 90 (ninety) days of any notice by YEP to Customer in such regard, YEP is entitled, but not obliged, to dispose of such property in order to defray any YEP expenses as well as any amounts owned by Customer to YEP.
Where the Customer is in possession of any of YEP’s property in consequence of the provision to Customer of particular Products and/or Services and the Services to which that property relates are terminated, Customer will immediately return such property to YEP, and shall not be entitled to retain such property for any reason whatsoever.
General Limitation
Save as specifically provided to the contrary in the Product Terms –
the Services are provided "as is" and "as available" and without any warranty of any nature whatsoever whether express or implied including without limitation warranties of merchantability, fitness for purpose, title, or non-infringement.
any Third-Party Products and/or Services accessible and/or used in conjunction with the Products and/or Services, but which are not provided by YEP, are provided subject to those terms specified by the Third-Party Supplier.
YEP is not liable and will not be liable under any circumstances, for any direct, indirect, incidental, special, punitive or consequential loss or damages which arise, or may arise, out of access to and/or use of the Products and/or Services by Customer. This exclusion of liability applies notwithstanding the fact that YEP may have been advised of the possibility of such loss or damage being incurred prior to its occurrence.
YEP is not liable and will not be liable under any circumstances, for any direct, indirect, incidental, special, punitive or consequential loss or damages which result or may result from Customer's access to and/or use of any Third Party Products and/or Services accessible and/or used in conjunction with the Products and/or Services, but not provided by YEP. This exclusion of liability applies notwithstanding the fact that YEP may have been advised of the possibility of such loss or damage being incurred prior to its occurrence.
Customer acknowledges that the Services are provided subject to all Applicable Laws and regulations and that Customer hereby indemnifies YEP from any liability for any loss or damage suffered by Customer or any Third Party Supplier or Third Party Service Provider as a consequence of any interruption or unavailability of the Services attributable to any regulatory body or civil or criminal process instituted against YEP.
Customer's sole and exclusive remedy if it is dissatisfied with the Products and/or Services for any reason whatsoever, is termination of the Products and/or Services, or part thereof, as provided for and upon the terms stated in clause 20.1 above.
Customer hereby unconditionally and irrevocably indemnifies YEP and agrees to hold YEP free from all costs, losses, claims harm, liabilities, expenses, damages, fines or injury of whatsoever nature suffered or incurred by YEP or instituted against YEP by any Third Party Supplier and/or Third Party Service Provider as a direct or indirect result of Customer's use of the Products and/or Services including Third Party Products and/or Services, Customer's failure to comply with any of the YEP Terms, or any downtime, outage, interruption in or unavailability of the Products and/or Services. Included, but without limitation, within the ambit of downtime, outage, interruption in or unavailability of the Product and/or Services including Third Party Products and/or Services is any of the following: (i) software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Products and/or Services; including Third Party Products and/or Services (ii) non-performance or unavailability, of whatever nature and howsoever arising of any of the services provided by a Third Party Supplier and/or Third Party Service Provider, Upstream Providers (including, but not limited to, line failure) or in any international services or remote mail servers; (iii) non-performance or unavailability, of whatever nature and howsoever arising, of external communications networks to which Customer or YEP’s network infrastructure is connected; and (iv) repairs, maintenance, upgrades, modification, alterations or replacement of any hardware forming part of the Services or any faults or defects of whatever nature in such hardware.
Customer acknowledges that it has no claim against YEP and Customer hereby indemnifies YEP against any liability in respect of any loss, damage or cost caused by or arising from: (i) any infringement of Customer's rights of privacy and/or any other like rights (including those of any other person or entity), arising from the Products and/or Services; (ii) any breach of security by any third party or any breach of confidentiality by a third party or otherwise arising from any access howsoever obtained by a third party to Customer's Personal Information , information, data or content; (iii) damage, contamination or corruption of any kind of Customer's Personal Information, Customer data, material, information and/or content howsoever occasioned; (iv) repairs, maintenance, upgrades, modification, alterations, replacement or work of any nature done on Customer's hardware, software or systems by any party other than YEP; (v) without limiting the foregoing, any fact, cause or circumstances whatsoever and howsoever arising if YEP substantially performed its obligations under the YEP Terms.
Notwithstanding the above, in the even that YEP is held liable by any Court of law and/or Authority for any damages suffered by Customer through use of Products and/or Services including Third Party Products and/or Services, YEP’s liability for such damages shall be limited to the total Subscription Fees payable by Customer in terms of the Agreement.
Monitoring And Termination Rights
Customer acknowledges that YEP has no knowledge of, nor interest in, nor in any way contributes to, nor approves the creation of, Customer’s content as hosted by YEP and/or published by Customer on Customer’s web site and/or Customer’s web server (whether owned by Customer or rented from YEP) and/or published otherwise through use of any of YEP’s Products and/or Services and that hosting or publication of certain kinds of content may be offensive, unlawful, in breach of codes of conduct binding on YEP, violations of legislation (including regulations), violations of the common law generally, and violations of the requirements and rules of any regulatory Authority and that hosting and publication of certain kinds of content may cause harm to the name, goodwill and reputation of YEP, its Affiliates, and its business partners.
Accordingly, Customer agrees, if YEP in the exercise of its sole discretion is of the opinion that Customer’s content is offensive, unlawful, or harmful, as set out above, that YEP, without derogating from any of its other rights in terms of this agreement, may:
request Customer forthwith to remove the offensive, unlawful, or harmful content, as the case may be; or
request Customer forthwith to amend or modify the content; or
without notice terminate access to Customer’s web site and/or Customer’s server (whether owned by Customer or rented from YEP) and/or suspend or terminate access to YEP’s products or services; or
without notice delete Customer’s web site from the server; or
without notice remove Customer from YEP Portal or any other web property owned or administered by YEP.
Customer agrees that nothing that YEP does in the performance of its obligations in terms of the Agreement or in the carrying on of its business generally shall be construed as an assumption of responsibility or liability by YEP for Customer’s content and the publication thereof, whether or not YEP had knowledge of such content and Customer hereby indemnifies YEP and holds it harmless against any liability and any claims of whatever nature made by any person for any loss or damage suffered arising directly or indirectly from the hosting and/or publication of Customer’s content as well as any other data of Customer.
YEP shall use all reasonable endeavours to notify Customer of any action taken in terms of clause 22.2 above, but does not warrant that notice shall be given to Customer prior to such action being taken.
Preservation Of Security, Maintenance And Repair
YEP reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its network infrastructure and Customer undertakes that it will not do or permit anything to be done which will compromise YEP’s security.
YEP may temporarily suspend its obligations in terms of this agreement in order to service, repair, maintain, upgrade, modify, alter, replace, or improve any of YEP's services. Where the circumstances permit, YEP shall use its reasonable commercial endeavors to provide prior notice of any such suspension to Customer. The client shall not be entitled to any setoff, discount, refund, or other credit in respect of any such suspension of service nor in respect of any suspension that is beyond YEP's control.
Although YEP applies reasonable endeavours to provide disaster recovery, YEP does not specify any recovery time, nor is YEP liable for any loss or damage of whatever nature incurred or suffered by Customer arising from or in connection with any cause whatsoever as a result of its failure to provide, or delay in providing, or providing only partial, disaster recovery. Customer is cautioned to make back-ups of its data. Nothing contained in the YEP Terms shall be construed as a representation that any back-ups of data implemented by YEP will be successful or in any way will avoid disaster.
Force Majeure
In the event of an instance of Force Majeure, any delay or failure in performance or breach by YEP occasioned thereby or resulting therefrom will not be deemed a breach of the YEP Terms by YEP, nor shall it subject YEP to any liability whatsoever. For the purposes of these YEP Terms, the term "Force Majeure" shall mean an act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, pandemics act of any government or other authority, compliance with government orders, demands or regulations or any circumstance of like or different nature beyond YEP's reasonable control.
Dispute Resolution
Any dispute which arises between the Parties under this Agreement shall be referred to a joint committee of the Parties' designated representatives (“Designated Representatives”). The Designated Representatives shall meet as often as the Parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter at issue that the Parties believe to be appropriate in connection with its resolution.
If the Parties are unable to resolve any dispute in the manner contemplated by clause 25.1, such dispute shall on written demand by either Party to the dispute be submitted to arbitration at the Arbitration Foundation of South Africa (“AFSA”) in Sandton and in accordance with the AFSA rules, by an arbitrator agreed on by the Parties or should the Parties fail to agree on an arbitrator within 5 (five) business days after arbitration has been demanded, the arbitrator shall be nominated by AFSA. The arbitration shall be held in the English language. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
Each Party shall bear its own costs of the arbitration unless the arbitrator directs otherwise.
The Parties agree that the written demand by a Party to the dispute in terms of clause 25.2 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969 (Act No. 68 of 1969).
The Parties agree that the arbitrator’s decision can be made an order of Court.
Urgent relief:
Nothing contained in this clause 25 shall be deemed to prevent or prohibit a Party to the dispute or arbitration from applying, at any time, to the appropriate Court for urgent relief or for judgment in relation to a liquidated claim.
General Provisions
Legal Compliance: Customer acknowledges that in YEP's provision of the Services to Customer, YEP shall be entitled to do all things necessary in order to give effect to any legislation, regulation or ruling of a competent authority.
Cession and Assignment: Customer is not entitled to cede, assign or delegate or in manner whatever transfer (including but not limited to the sub-letting or re-sale of any bandwidth, disk space, server capacity or web hosting) any Customer rights or obligations under the YEP Terms or the Agreement without YEP's prior written consent. In the event of any change in Customer's controlling interest, YEP is entitled to terminate the YEP Terms on notice to Customer. Customer is required to notify YEP in writing of any change in its controlling interest within 14 (fourteen) days of such change. YEP is entitled to cede, assign, transfer, or delegate all or any of its rights or obligations under the YEP Terms or Agreement without Customer consent.
Applicable Laws: The YEP Terms will in all respects be governed by and construed under the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
Jurisdiction: Both parties record and agree that Johannesburg shall be deemed to be the place where the Parties have concluded the Agreement or any portion thereof. Unless YEP otherwise elect, only South African courts and/or other competent South African regulatory authorities shall have jurisdiction to hear any disputes arising pursuant to the Agreement. To the extent that YEP elect to proceed against Customer in a South African Magistrate's Court, Customer hereby consents to the jurisdiction of those courts notwithstanding the fact that the amount of any claim against Customer may exceed the jurisdiction of those courts. To the extent that YEP elect to proceed in any dispute in a South African High Court, Customer hereby consents to the jurisdiction of the Witwatersrand Local Division of the High Court of South Africa. Customer hereby agrees that all legal costs awarded in YEP’s favour shall be payable by Customer on the same scale as between attorney and own client.
Whole Agreement: Customer acknowledges that the Agreement constitutes the whole of the agreement between YEP and Customer relating to the matters dealt with in it and save to the extent otherwise provided therein, no undertaking, representation, term or condition relating to the subject matter of the Agreement not incorporated therein shall be binding on YEP.
Domicilium: Customer selects as its address for the purposes of receiving legal process and notices, the Customer Contact furnished to YEP on the Order Form when Customer first subscribed for the Services “Customer Domicilium Citandi et Executandi”. Customer is required to notify YEP in writing of any change of address. Customer agrees that any notices (other than legal process) that YEP may send to Customer may be sent via e-mail. YEP selects as its address for the purposes of receiving legal process and notices the current address specified on the Legal Website (“YEP’s Domicilium Citandi et Executandi”). Any purported notice of termination sent to YEP at any address not specified on the Legal Website or communicated in any manner other than as specified on the Legal Website may, at YEP’s sole discretion, be deemed invalidly given and without force or effect.
Waiver, Indulgence, Relaxation and Extension: Any waiver, indulgence, relaxation, or extension of any of the YEP Terms or the Agreement will be effective only in the specific instance and for the purpose given. No failure or delay on YEP's part in exercising any of its rights, powers or privileges in terms of the YEP Terms will constitute or be deemed to be a waiver of those terms, nor will any single or partial exercise by YEP of any of its rights, powers or privileges preclude it from any other or further exercise thereof or the exercise of any other rights, powers or privileges.
Order of Precedent: Save as expressly provided to the contrary in the YEP Terms, any conflict in the provisions stated in these General Terms and those stated in the Product Terms and Use Policies will be resolved in accordance with the following order of precedence:
the Product Terms;
the General Terms; and
the Use Policies.
Continuing Binding Effect: Any provision of the YEP Terms or Agreement that contemplates performance, compliance, or observance subsequent to any termination or expiration of the YEP Terms shall survive any such termination or expiration and continue in full force and effect.
Severable: Each provision of the YEP Terms or Agreement is severable from the other provisions. Should any provision be found by an authority of competent jurisdiction to be invalid or unenforceable for any reason, YEP reserves the right either to amend that provision in terms of clause 4.4 or to remove that provision in its entirety. The remaining provisions of the YEP Terms or Agreement shall nevertheless remain binding and continue with full force and effect.
Electronic Signature: The reference to signing by Customer in the Agreement shall notwithstanding anything to the contrary in the Agreement, be read and construed as including any form of Electronic Signature.