In this Agreement the following words have the meanings set out below and derivative words will have corresponding meanings:
1.1 "Agreement" means this agreement, including all the Terms and Conditions stated herein;
1.2 "Associate" means in relation to:
1.2.1 any company, any other company that is its Subsidiary, Holding Company or a Subsidiary of its Holding Company; or
1.2.2 any person (including a company, partnership or trust), any other person over which, or over the management of which, control can be or is exercised directly or indirectly by persons who can or do also exercise control directly or indirectly over that person or its management; provided that for the purpose of this definition, "control" will bear the meaning assigned to it in section 2 of the Companies Act (changed as necessary to apply to the person(s) involved);
1.3 "Business Day" means any day other than a Saturday, Sunday or official public holiday in the RSA;
1.4 "Client" means the Client of Fresh Projects that signs up for and utilises the Services of Fresh Projects;
1.5 "Companies Act" means the Companies Act 71 of 2008, as amended or substituted;
1.6 "Confidential Information" means irrespective of its format:
1.6.1 the terms of this Agreement and the details of the Services;
1.6.2 any Information:
18.104.22.168 which is a trade secret or proprietary in nature used in relation to the technology, business, marketing products, processes, services or operations of a Party;
22.214.171.124 of a trade, commercial, financial and managerial information nature;
126.96.36.199 acquired by either Party solely as a result of or for purpose of providing the Services;
188.8.131.52 any Information designated as confidential by either Party;
184.108.40.206 any Intellectual Property; and
220.127.116.11 any Work;
1.6.3 but excludes any Information that:
18.104.22.168 is or becomes publicly available, except by a breach of this Agreement;
22.214.171.124 is disclosed to the Receiver by a third party provided that the Receiver believes, exercising reasonable business judgement, the third party is legally entitled to disclose such Information;
126.96.36.199 was known to or in the possession of the Receiver without obligation of confidence before it received the Information from the Discloser;
188.8.131.52 was developed by the Receiver independently of any disclosures previously made by the Discloser and in circumstances which do not amount to a breach of the provisions of this Agreement;
184.108.40.206 is disclosed with the Discloser's Consent; or
220.127.116.11 is required to be disclosed by law, judicial order, any rules of court, an applicable tribunal or regulatory body, the rules of any stock exchange or under any professional obligation or requirement, provided that, in these circumstances, the Receiver shall (i) inform the Discloser of the requirement to disclose prior to making disclosure insofar as the Receiver is lawfully able to inform the Discloser; (ii) disclose only that portion of the Confidential Information which it is legally required to disclose; (iii) use reasonable endeavours to protect the confidentiality of such Information to the widest extent lawfully possible in the circumstances; and (iv) co-operate with the Discloser if the Discloser elects to contest such disclosure;
1.7 "Consent" means prior or duly ratified written consent which may be granted at either Party's discretion and may be subject to conditions;
1.8 "Discloser" means the Party disclosing or granting access to Information;
1.9 "Effective Date" means the date on which the Client begins utilising the Fresh Projects Services, alternatively, the date on which Fresh Projects commences rendering the Services to the Client, whichever is the earlier date;
1.10 "Fees" means the fees charged by Fresh Projects for the Services
1.11 "Fresh Projects" means Fresh Projects Ltd, a private company established in accordance with the laws of South Africa with Registration Number: 2014/214815/07
1.12 "Government Official" means: (a) any employee or officer of a government, including, without limitation, any national, regional or local department, agency or instrumentality of a government; (b) any official or employee of a public international organisation (such as the World Bank or United Nations); and (c) any person acting in an official capacity for, or on behalf of, any entity identified in subparts (a) and (b);
1.13 "Holding Company" shall have the meaning defined in section 1 of the Companies Act;
1.14 "Information" means any information as generally understood, source codes, reports, notes, working papers, emails, designs, techniques, models, templates, generalised features of the structure, sequence and organisation of software, user interfaces, screen designs, general purpose consulting and software tools, utilities and routines logic, coherence and methods of operational systems; methodologies documents, presentations, spread sheets, materials, data, technologies, programmes, processes, records and facts, whether in hard copy or electronic format;
1.15 "Intellectual Property" means any and all Information of a proprietary nature in relation to the technology, business, products, processes, services or operations of a Party, including any patent, trade mark, logo or design, which has been registered or is capable of being registered in any national intellectual property office or association, as well as any copyrightable works, trade secrets and know-how;
1.16 "Party" or "Parties" means Fresh Projects or the Client individually or collectively as the context may require;
1.17 "Personal Information" shall have the meaning set out in the Protection of Personal Information Act 4 of 2013, as amended or substituted;
1.18 "Professional Advisors" means the Parties' duly appointed attorneys, auditors and other professional or Transaction advisors from time to time;
1.19 "Receiver" means the Party receiving or to whom Information is disclosed;
1.20 "RSA" means the Republic of South Africa;
1.21 "Services" means the Services provided by Fresh Projects to the Client through this website and including this website, as well as the Fresh Projects cloud computing platform and any other software and / or services offered by Fresh Projects in connection to any of those;
1.22 "Subsequent Event" means:
1.22.1 an event which occurs subsequent to a Cut-off Date; or
1.22.2 Information not known to Either Party prior to a Cut-off Date;
1.23 "Subsidiary" shall have the meaning defined in section 1 of the Companies Act;
1.24 "VAT" means value-added tax as described in the Value-Added Tax Act 89 of 1991, as amended;
2.1 The Client hereby appoints Fresh Projects to render the Services and Fresh Projects accepts such appointment on the Terms and Conditions set out in this Agreement.
2.2 By clicking on the Signup Button provided on the Fresh Projects website, the Client specifically agrees to and accepts the Terms and Conditions contained herein and furthermore, acknowledges that the Terms and Conditions contained herein are binding on the Client.
2.3 The Client specifically agrees that the purchase and / or utilisation of the Fresh Projects Services is not contingent on the future delivery of any functionality and / or features or dependent on any oral or written public and / or private comments made by Fresh Projects or any of its affiliates regarding future functionality or features.
2.4 Fresh Projects shall be entitled without consent to assign, sell or otherwise transfer the benefit or burden of all or any part of this Agreement, or its right, interests and obligations with respect to this Agreement to another Party.
2.5 This Agreement revoked, replaces and supersedes all previous written proposals, quotations or submissions provided by Fresh Projects to the Client regarding the Services.
3.1 This Agreement shall commence on the Effective Date and shall, terminate once either of the Parties has given 30 (thirty) days' written notice of same.
3.2 The Client will not receive any refunds should the Client terminate this Agreement with Fresh Projects.
3.3 In the event that the Client terminates the Agreement, the Client acknowledges and accepts that they are solely responsible for exporting their Content from the Fresh Projects Services prior to termination.
3.4 Should Fresh Projects elect to terminate the Agreement, the Client will be able to retrieve their Content within 30 (thirty) days after being notified of such termination, however, it will remain the responsibility of the Client to export their Content from the Fresh Projects Services.
4. Relationship of the Parties
4.1 The Parties are independent contractors and the Personnel of one shall not be the Personnel of the other.
4.2 Neither Party shall act as the agent of the other, nor shall they have the authority to bind the other Party, nor shall this Agreement create an agency, partnership or joint venture.
4.3 No person who is not a Party to this Agreement shall have nay rights or obligations under the Agreement or be able to enforce any of its Terms and Conditions.
4.4 Nothing in this Agreement shall be construed as creating an exclusive relationship between Fresh Projects and the Client.
4.5 The relationship between the Parties shall be one of good faith and each Party therefore undertakes to observe good faith toward the other and to act reasonably with respect to matters that relate to the Agreement.
5. Account and Use of the Fresh Projects Services
5.1 The Client agrees that it has and / or will provide accurate, true, complete registration information at the time of registering to use the Fresh Projects Services.
5.2 The Client acknowledges and accepts that they are solely responsible for the security of any passwords, usernames and / or for any use of the Client's account. Should the Client become aware of any unauthorised use of passwords, usernames or of the account, the Client agrees to notify Fresh Projects immediately.
5.3 The Client acknowledges and accepts that its use of the Fresh Projects Services must at all times comply with all applicable laws, regulations and ordinances, including any laws regarding, personal information, the export of data or software and cross-border data responsibilities.
6.1 The Receiver hereby irrevocably undertakes and agrees:
6.1.1 not to divulge or disclose to any third party in any form or manner whatsoever, either directly or indirectly, any Confidential Information of the Discloser without the Consent of the Discloser;
6.1.2 not to, directly or indirectly, detract from, expand on, amend, decompile, reverse engineer, use, exploit, permit the use of, or in any other manner whatsoever apply the Confidential Information for its own benefit or the benefit of any other person or for any purpose whatsoever other than for the Engagement and otherwise than in accordance with the provisions of this Agreement;
6.1.3 to treat all Information as Confidential Information where it is uncertain of the nature of the Information until written notice to the contrary is received from the Discloser;
6.1.4 to take reasonable security (including IT security) measures in line with its own security measures to keep the Confidential Information confidential;
6.1.5 to immediately notify the Discloser upon discovery of any unauthorised use or disclosure of the Confidential Information or any other breach of this clause6;
6.1.6 to take all necessary steps or assist the Discloser to regain possession of the Confidential Information or to prevent its further unauthorised use;
6.1.7 subject to this clause, and any applicable laws or internal policies, to immediately at the Discloser's reasonable request or in any event at the completion of an Engagement to forthwith return all originals, copies, reproductions, summaries or extracts of the Confidential Information, or at the Discloser's option destroy these and certify that it has done so; and
6.1.8 that all Confidential Information is and shall remain the property of the Discloser and that disclosure thereof does not grant the Receiver any express or implied license to use such Confidential Information or right other than as provided for in this Agreement.
6.2 Notwithstanding the above, Fresh Projects shall be entitled:
6.2.1 in compliance with the applicable laws and its professional obligations, to retain copies of all Information of the Client;
6.2.2 to share the Confidential Information with its Professional Advisors or insurers in the event of a claim arising from or in connection with this Agreement,
6.3 Each Party shall procure that, inter alia, its Directors, Partners, Personnel, employees and agents comply with the provisions of this clause.
7. Intellectual Property
7.1 The Parties record that Fresh Projects has, prior to the Agreement created, acquired or otherwise obtained rights to its own Intellectual Property. Fresh Projects shall for the duration of the Agreement and thereafter retain the ownership of its own Intellectual Property.
7.2 Except where a licence is expressly granted for a duration or where ownership is expressly transferred in writing, the Client shall acquire no right or interest in the Intellectual Property of Fresh Projects.
7.3 Any developments, modifications, improvements or enhancements to Fresh Projects Intellectual Property arising under this Agreement will remain the property of Fresh Projects.
7.4 In the event of the Client requesting the use of Fresh Product's Intellectual Property outside the scope of the Agreement, this will be the subject of a separate agreement;
7.5 Fresh Projects shall be entitled to and the Client specifically agrees that, Fresh Projects may use the Client's trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing the use of the Fresh Projects Services.
8. Use of Information Collected
8.1 The Client specifically agrees to not:
(a) access (or attempt to access) the administrative interface of the Fresh Projects Services by any means whatsoever and to only access the interface that is provided by Fresh Projects in connection with the Fresh Projects Services, unless a separate agreement with Fresh Projects has been entered into, or
(b) engage in any activity that interferes with and / or disrupts the Fresh Projects Services (or the servers and networks which are connected to the Service).
8.2 Fresh Projects uses Data provided about the Client to perform the Services requested by the Client. (For example, if you fill out a "Contact Me" Web form, Fresh Projects will use the information provided to contact the Client about an interest in the Services.)
8.4 The client specifically agrees to the use of its data in accordance with Fresh Projects privacy policies.
8.5 In order to render the Services or to comply with any obligations in terms of law, regulations and otherwise, either Party may need to provide, collect, use, store or process Confidential Information or Personal Information of the other Party. Each Party hereby authorises such collection, use, storage and processing where the need arises, subject to compliance with the provisions of this clause.
8.6 Each Party shall only provide, collect, use, store or process Personal Information:
8.6.1 In compliance with the applicable RSA legislation;
8.6.2 As is necessary for the purposes of this Agreement;
8.6.3 For maintaining its internal administrative processes;
8.6.4 For internal business related statistical or research purposes; and
8.6.5 In accordance with the lawful and reasonable instructions of the Party providing the Personal Information.
8.7 Both Parties agree to comply with the data and security provisions imposed on them in terms of the applicable RSA data protection legislation and failing such legislation, they shall take, implement and maintain all such technical and organisational security procedures and measure necessary or appropriate to preserve the security and confidentiality of the Confidential Information or Personal Information in its possession and protect such Information against unauthorised or unlawful disclosure, access or processing, loss, destruction or damage.
8.8 The Client specifically agrees to Fresh Projects utilising commonly-used information-gathering tools, such as cookies and Web beacons, to collect information as the Client navigates the Fresh Projects Web site ("Web Site Navigational Information").
9. Fees for Use of the Fresh Projects Services and Payment Policy
9.1 Subject to this Agreement, a pre-selected amount of Fresh Projects Services are provided to the Client without charge up to a certain limit during the trial period, as communicated from time to time by Fresh Products. Usage over this certain limit requires the Client to make a purchase of additional resources or Service, which pricing will be made available to the Client upon request.
9.2 The Client shall, in return for the additional resources or Services, pay to Fresh Projects the amount stipulated on the invoice, which will be sent to the Client from time to time.
9.3 Invoices are immediately due and payable upon presentation.
9.4 Fresh Projects may, at its sole and absolute discretion, charge the Client interest on all due and unpaid invoices at the rate of prime plus 1.5% per month (or the highest rate permitted by law, if less) which interest shall be compounded monthly in arrears.
9.5 All charges are exclusive of taxes and the Client acknowledges and accepts that they are responsible for paying all taxes and government charges, and all reasonable expenses and legal fees (on the attorney-client scale) that Fresh Projects may incur collecting unpaid invoices.
9.6 Charges are solely based on Fresh Projects measurements of the Client's use of the Fresh Projects Services, unless otherwise agreed to in writing.
9.7 To the fullest extent permitted by law, refunds (if any) are at the discretion of Fresh Projects and only in the form of credit for the Fresh Projects Services.
9.8 Nothing in this Agreement obligates Fresh Projects to extend credit to any party.
9.9 The Client acknowledges and specifically agrees that any credit card and related billing and payment information that is provided to Fresh Projects may be shared by Fresh Projects with companies who work on Fresh Projects behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Fresh Projects and servicing the Client's account.
9.10 Fresh Projects may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Fresh Projects shall not be liable for any use or disclosure of such information by such third parties.
9.11 Fresh Projects reserves the right to discontinue, suspend, terminate or halt the provision of the Fresh Projects Services to the Client until such time as payment for unpaid invoices is made.
9.12 Fresh Projects records that it may change its fees and payment policies for the Fresh Projects Services by notifying you at least thirty (30) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Fresh Projects may provide from time to time).
9.13 Any outstanding balance owed by the Client to Fresh Projects becomes immediately due and payable upon termination of this Agreement for any reason.
10. Modification of the Fresh Projects Services and the Agreement
10.1 Fresh Projects is constantly innovating and changing our Services in order to provide the best possible experience for its users, the Client. The Client hereby acknowledges and specifically agrees that, inter alia, the form and / or nature of the Fresh Projects Services which Fresh Projects provides may change from time to time without prior notice to you, subject to this Agreement.
10.2 Changes to, inter alia, the form and / or nature of the Fresh Projects Services will be effective with respect to all versions of the Fresh Projects Services; examples of such changes may include, but are not limited to, changes to fee and payment policies, security patches, added functionality, and other enhancements to the Services.
10.3 In addition, Fresh Projects may make changes to this Agreement from time to time, as necessary. Should the Terms and Conditions of this Agreement be amended or changed in any substantive way, Fresh Projects undertakes to provide the Client with 7 (seven) days' notice before the amendments or changes take effect, during which period of time the Client has the right to reject the amendments or changes by terminating the account.
10.4 The Client acknowledges and specifically agrees that use of the Fresh Projects Services after the date on which this Agreement has changed is indicative that the Client has specifically agreed to and accepted the updated Agreement and all the Terms and Conditions contained therein are binding on the Client from the date that such amendments or changes come into effect.
11. Force Majeure
No Party shall have any claim against another Party (the "Affected Party") for any delay or failure by the Affected Party to carry out any of its obligations under this Agreement arising from or attributable to acts of God, fire, epidemic, war, terrorism, cyberterrorism, acts of third parties including but not limited to hackers, labour action or unrest, failure of suppliers or contractors, law, government or regulatory requirements, or any other cause whatsoever beyond the control of the Affected Party ("force majeure").
12. Exclusion of Warranties
12.1 Nothing in this Agreement shall exclude and / or limit Fresh Projects warranty or liability for losses which may not be lawfully excluded or limited by applicable law.
12.2 The Client acknowledges and agrees that its use of the Fresh Projects service is done so at its sole and absolute risk and that the Fresh Projects Services are provided "as is" and "as available."
12.3 Fresh Projects, its subsidiaries and affiliates, and its licensors make no express warranties or implied warranties regarding the Fresh Projects Services, including but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
12.4 Without limiting the generality of the above, Fresh Projects, its subsidiaries and affiliates, and its licensors do not represent or warrant to the Client that:
(a) Use of the Fresh Projects Services will meet your requirements,
(b) Use of the Fresh Projects Services will be uninterrupted, timely, secure and / or free from error, and
(c) Usage of the data provided through the Fresh Projects Services will be entirely accurate, true and correct.
13.1 The Parties shall promptly remedy any defect or deficiency in the fulfilment of their respective obligations in terms of this Agreement and shall advise the other Party verbally and in writing as soon as either of the Parties become aware of anything, which may hamper or delay the other Party in fulfilling its obligations in terms of this Agreement.
13.2 Should any Party (the "Defaulting Party") commit a breach of any of the provisions of this Agreement, then the other Party (the "Aggrieved Party") shall be obliged to give the Defaulting Party 10 (ten) Business Days' written notice (or such longer period as the Aggrieved Party may specify), to remedy the breach. If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall, without prejudice to the Aggrieved Party's rights to claim damages or such other rights it may have in law, be entitled to:
13.2.1 terminate this Agreement for a material breach, such termination to be effective immediately upon receipt by the Defaulting Party of a written notice to that effect; and/or
13.2.2 claim immediate payment of all monies due or specific performance by the Defaulting Party of all the Defaulting Party's obligations.
13.3 In the absence of any theft, fraud, wilful misconduct or breach of this Agreement by Fresh Projects, the Client shall indemnify and hold Fresh Projects harmless against loss, damages, costs or expenses (including legal fees on the scale as between attorney and own client) directly or indirectly incurred by Fresh Projects as a result of:
13.3.1 claims by any third party service providers utilised by the Client to assist or support the rendering of the Services; or
13.3.2 a breach by the Client of its obligations in terms of this Agreement.
14. Disclaimers and Limitation of liability
14.1 Except as expressly provided herein and to the extent permitted by applicable law, the Services are provided "as is" and Fresh Products does not make warranties of any kind, express, implied or statutory, including those of merchantability, fitness for a particular purposes and non-infringement or any other warranties regarding availability, reliability or accuracy of the Services.
14.2 To the extent permitted by the applicable law, the Client acknowledges and specifically agrees that Fresh Projects, its subsidiaries and affiliates, and its licensors shall not be liable to the Client for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Client, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
14.3 The limitations on Fresh Projects liability to the Client as stated above shall apply whether or not Fresh Projects has been advised of and / or should have been aware of the possibility of any such losses arising.
The Client specifically agrees to hold harmless, defend and indemnify Fresh Projects, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Fresh Projects and Partners") from and against any third party claim arising from or in any way related to
(a) Breach of this Agreement by the Client;
(b) The Client's use of the Fresh Projects Services;
(c) The Client's violation of any applicable laws, rules or regulations in connection with the Fresh Projects Services, or
(d) The Client's Content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Fresh Projects will provide you with written notice of such claim, suit or action.
16. Other Content
16.1 The Client acknowledges and accepts that the Fresh Projects Services may include hyperlinks to other web sites or content or resources or email content. Fresh Projects may have no control over any web sites or resources which are provided by companies or persons other than Fresh Projects.
16.2 The Client acknowledges and agrees that Fresh Projects is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 The Client acknowledges and agrees that Fresh Projects is not liable for any loss or damage which may be incurred by the Client and the Client's End Users as a result of the Content or availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17. General Terms
17.1 Except to the extent the Client and Fresh Projects have entered into a separate written agreement that is expressly intended to supersede this Agreement, either in whole or in part, this Agreement constitutes the entire agreement between the Parties relating to its subject matter, and supersedes all other oral or written representative, understandings or agreements.
17.2 There are no third party beneficiaries to this Agreement. Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
17.3 Should Fresh Projects provide the Client with a translation of this Agreement upon the Client's request, the English language version of this Agreement supersedes the translated Agreement in the event that there is a conflict.
17.4 The Client acknowledges and agrees that Fresh Projects may provide you with notices, including those regarding changes to the Agreement, by way of email, regular mail, or postings on the Fresh Projects Services website, to the addresses provided by the Client during the registration process.
17.5 The Client specifically agrees that by providing Fresh Projects with the Client's email address, the Client expressly consents to Fresh Projects using the provided email address to send the Client any notices required by law in lieu of communication by postal mail.
17.6 Fresh Projects nominates the following address to be utilised should any notices need to be sent to Fresh Projects: 150 Bryanston Drive, Bryanston, Gauteng, 2021, South Africa.
17.7 The Agreement and relationship between the Parties under the Agreement, shall be governed by the laws of South Africa without regard to its conflict of law's provisions.
17.8 The Client may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Fresh Projects (not to be unreasonably withheld).
17.9 Should any provision or undertaking in this Agreement is or becomes illegal, invalid or unenforceable, such provision shall be divisible and be regarded as pro non scripto, the remainder of this Agreement to be regarded as valid and binding.
17.10 No extension of time or waiver or relaxation of any of the provisions of this Agreement shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate to preclude such Party from exercising its rights strictly in accordance with this Agreement.
17.11 The persons entering into this Agreement on behalf of the Parties warrant that they are duly authorised to.