RECITALS

1. The Service Provider has developed certain software applications and platforms which it makes available to paragliding school and subscribers via the Internet on a pay per use basis for the purpose of allowing users to keep an up to date paragliding logbook as well as completing student paragliding forms, indemnities and other required school documentation. Keep detailed and easy record of your multi paragliding disciplines.
2. The Customer wishes to use the Service Provider’s service in its business operations.
3. The Service Provider has agreed to provide and the Customer has agreed to take and pay for the Service Provider’s service subject to the terms and conditions of this agreement.

WHEREBY IT IS AGREED AS FOLLOWS:

1. Interpretation

The headings of the clauses in this Agreement are for purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention appears–

1.1  Words importing–

1.1.1  any one gender includes the other gender;

1.1.2  the singular includes the plural and vice versa; and

1.1.3  a natural person includes juristic persons (corporate or unincorporated) and vice versa.

1.2  A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3  References to clauses, and annexures are to the clauses and annexures of this Agreement; references to paragraphs are to paragraphs of the relevant annexures to this Agreement.

1.4  If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.

1.5  When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a business day, in which case the last day shall be the next succeeding business day.

1.6  The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

2. Definitions

2.1  The definitions and rules of interpretation in this clause apply in this agreement.

2.1.1  “AFSA” means the Arbitration Foundation of Southern Africa;

2.1.2  “Agreement” means this software subscription agreement and any schedules and annexures thereto;

2.1.3  “Authorised Users” means those individuals who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3;

2.1.4  “Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by a Party, or information which the receiving Party knows or reasonably should have known is of a proprietary or confidential nature;

2.1.5  “Customer Data” means the data inputted by the Customer, Authorised Users, or the Service Provider on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, and includes (without limitation) Personal Information;

2.1.6  “Documentation” means the document made available to the Customer by the Service Provider online via www.paraglidinglogbook.co.za or such other web address notified by the Service Provider to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;

2.1.7  “Effective Date” means the date on which this Agreement will come into force and effect;

2.1.8  “Initial Subscription Term” means one calendar month, after which the subscription automatically renews for a further month unless cancelled by the Customer;

2.1.9  “Intellectual Property Rights” means all the rights in and to Intellectual Property including (without limitation) the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any Confidential Information or processes relating to that subject matter;

2.1.10  “Party” means either the Service Provider or the Customer, and “Parties” means both the Internet Service Provider and the Customer;

2.1.11  “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013 (“POPI”), and any applicable law in South Africa and/or in any other jurisdiction where the Services are provided and/or used;

2.1.12  “Renewal Period” means the period described in clause 14.1;

2.1.13  “Services” means the services provided by the Service Provider to the Customer under this Agreement via www.paraglidinglogbook.co.za  the app, or any other website notified to the Customer by the Service Provider from time to time, as more particularly described in the Documentation and/or the website;

2.1.14  “Software” means the online software applications provided by the Service Provider as part of the Services;

2.1.15  “Subscription Fees” means the subscription fees payable by the Customer to the Service Provider for the User Subscriptions, as set out on www.paraglidinglogbook.co.za.

2.1.16  “Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Periods;

2.1.17  “Support Services” means the Service Provider’s support services, accessible by means of email to info@paraglidinglogbook.co.za;

2.1.18  “User Subscriptions” means the user subscriptions purchased by the Customer pursuant to clause 9.1, which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement; and

2.1.19  “Virus” means a device or thing (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

3. User subscriptions

3.1  Subject to the Customer purchasing the User Subscriptions in accordance with the terms and conditions of this Agreement, the Service Provider hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.

3.2  In relation to the Authorised Users, the Customer undertakes that:

3.2.1  the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

3.2.2  it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless approved by the Service provider prior to doing so.

3.2.3  each Authorised User shall keep a secure password for his use of the Services and Documentation;

3.2.4  it shall maintain a written, up to date list of current Authorised Users; and

3.3  The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

3.3.1  is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

and the Service Provider reserves the right to disable the Customer’s access to any material that breaches the provisions of this clause.

3.4  The Customer shall not:

3.4.1  except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:

3.4.1.1  and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

3.4.1.2  attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

3.5  The Customer shall prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify the Service Provider.

4. Additional user subscriptions

4.1  The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions.

4.2  The Service Provider shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

5. Services

5.1  The Service Provider shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

5.2  The Service Provider shall use commercially reasonable endeavours to make the Services available 24h per day except for:

5.2.1  planned maintenance carried out during times at which the Customer will be made aware of well in advance; and

5.2.2  unscheduled maintenance performed, in which case a message will be sent to the Customer to inform them thereof as soon as possible.

5.3  The Service Provider will, as part of the Services provide the Customer with the Service Provider’s standard customer support services during business hours in accordance with the Service Provider’s Support Services Policy.

6. Third party providers

6.1  The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.

6.2  The Service Provider shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.

6.3  The Service Provider does not endorse or approve any third-party website nor the content of any third-party website made available via the Services.

7. Service provider’s obligations

7.1  The Service Provider undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2  The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Service Provider’s instructions, or modification or alteration of the Services by any party other than the Service Provider or the Service Provider’s duly authorised contractors or agents.

7.3  Notwithstanding the foregoing, the Service Provider:

7.3.1  does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and

7.3.2  is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities.

8. Customer’s obligations

The Customer shall:

8.1  provide the Service Provider with:

8.1.1  all necessary co-operation in relation to this Agreement; and

8.1.2  all necessary access to such information as may be required by the Service Provider;

8.2  comply with all applicable laws and regulations with respect to its activities under this Agreement;

8.3  ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement; and

8.4  be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Service Provider’s data centres.

9.Charges and payment

9.1  The Customer shall pay the Subscription Fees to the Service Provider for the User Subscriptions in accordance with this clause 9 and www.paraglidinglogbook.co.za.

9.2  The Supplier shall invoice the Customer for the Subscription Fees on a monthly basis.

9.3  The Customer shall make payment to the Supplier of any amount due under this Agreement within 30 (thirty) days of receipt of an invoice from the Supplier.

9.4  All amounts and fees stated or referred to in this Agreement are exclusive of value added tax (VAT).

9.5  If the Service Provider has not received payment within 30 (thirty) days after the due date.

9.5.1  the Service Provider may disable the Customer’s account.

10. Intellectual property

10.1  The Customer acknowledges and agrees that the Service Provider and/or its licensors own all Intellectual Property Rights in and to the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other Intellectual Property Rights, or licences in respect of the Services or the Documentation.

11. Data privacy and protection

11.1  The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

11.2  In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier.

11.3  For further information regarding our Data Privacy policies, : https://paraglidinglogbook.co.za/privacy-policy/

12. Confidentiality

12.1  Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:

12.1.1  is or becomes publicly known other than through any act or omission of the receiving Party;

12.1.2  was in the other Party’s lawful possession before the disclosure;

12.1.3  is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

12.1.4  is independently developed by the receiving Party, which independent development can be shown by written evidence; or

12.1.5  is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2  Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

12.3  Each Party shall take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

13. Limitation of liability

13.1  The user’s use of this app and the information contained / distributed thereon is entirely at the user’s own risk and the user assumes full responsibility and risk of loss resulting from the use thereof.

13.2  The transmission of information via the internet, including without limitation e-mail, is susceptible to monitoring and interception. The user bears all risk of transmitting information in this manner. Under no circumstances shall service provider be liable for any loss, harm, or damage suffered by the user as a result thereof. Service provider reserves the right to request independent verification of any information transmitted via e-mail and the user consents to such verification should service provider deem it necessary.

13.3  To the extent permissible by law:

13.3.1  Neither service provider, its affiliates, shareholders, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to the use of, or the inability to access or use the App / access its content or any functionality thereof, or the information contained on the App, or of any linked website, even if service provider knows or should reasonably have known or is expressly advised thereof.

13.3.2  The liability of service provider for faulty execution of the App as well as all damages suffered by the user, whether direct or indirect, as a result of the malfunctioning of the App shall be limited to service provider rectifying the malfunction, within a reasonable time and free of charge, provided that service provider is notified immediately of the damage or faulty execution of the App. This liability shall fall away and be expressly excluded if the user attempts to correct or allows third parties to correct or attempt to correct the App without the prior written approval of service provider. However in no event shall service provider be liable to the user for loss of profits or for special, incidental, consequential or punitive losses or damages arising out of or in connection with the App or its use or the delivery, installation, servicing, performance or use of it in combination with other computer software.

13.3.3  You hereby unconditionally and irrevocably indemnify service provider and agree to hold service provider free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by service provider or instituted against service provider as a direct or indirect result of:

13.3.3.1  your use of the App;

13.3.3.2  software, programs and support services supplied by, obtained by or modified by you or any third party without the consent or knowledge of service provider;

13.3.3.3  your failure to comply with any of the terms or any other requirements which service provider may impose from time to time;

13.3.3.4  the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or

13.3.3.5  any unavailability of, or interruption in, the service which is beyond the control of service provider.

13.4  Service provider makes no warranty or representation as to the availability, accuracy or completeness of the content of the website. You expressly waive and renounce all your rights of whatever nature that you may have against service provider for any LOSS suffered by you, as a result of information supplied by service provider being incorrect, incomplete or inaccurate.

14. Term and termination

14.1  This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and thereafter this Agreement shall be automatically renewed for successive calendar months (each a “Renewal Period”), unless:

14.1.1  either Party notifies the other Party of termination, in writing, at least 14 (fourteen) days before the end of the Initial Subscription Term or any Renewal Period, as the case may be; or

14.1.2  otherwise terminated in accordance with the provisions of this Agreement.

14.2  Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement without liability to the other if:

14.2.1  the other Party commits a breach of any of the material terms of this Agreement and fails to remedy that breach within 7 (seven) days of that Party being notified in writing of the breach; or

14.3  On termination of this Agreement for any reason:

14.3.1  all licences granted under this Agreement shall immediately terminate; and

14.3.2  the Customer shall be entitled to request a logbook of information stored with the Service Provider, within 180 days of termination of the agreement, on condition that the Customer is not behind with any of its payments to the Service Provider. The Service Provider shall have 30 days to provide the logbook and student data to the Customer after such request.

15. Force majeure

The Service Provider shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Service Provider or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Service Providers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16. Dispute resolution

16.1  In the event of there being any dispute, claim or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by either Party be submitted to arbitration in Cape Town, South Africa in accordance with the AFSA rules, which arbitration shall be administered by AFSA.

16.2  Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration, then any Party to the dispute shall be entitled to forthwith call upon the chairperson of the Western Cape Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years standing as such. 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.

16.3  Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

16.4  Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief.

16.5  Any arbitration in terms of this clause 16 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.

16.6  This clause 16 will continue to be binding on the Parties notwithstanding any termination or cancellation of this Agreement.

16.7  The Parties agree that the written demand by a Party to the dispute in terms of clause 19.1 that the dispute or difference be submitted to arbitration, is to be deemed as a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.

17. Waiver

17.1  A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

17.2  Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

18. Severance

18.1  If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

19. Entire agreement

19.1  This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2  Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

20. Assignment

20.1  The Customer shall not, without the prior written consent of the Service Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20.2  The Service Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21. Notices

21.1  Each of the Parties chooses their respective addresses set forth in the information provided by them when signing up to make use of the App  for the purposes of giving any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement.

22. Governing law and jurisdiction

22.1  This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of South Africa.

23. ECTA disclosures

23.1  Full name: Ruard de Bruyn

23.2  Website address: www.paraglidinglogbook.co.za

23.3  E-mail address:info@paraglidinglogbook.co.za

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