INTRODUCTION

This Agreement sets out the standard terms and conditions of WorkIT online (overberginfo.com CC T/A workITonline), 1999/012427/23, hereinafter referred to as "WorkIT online", “we” or “us”.

We specialise in providing various packaged web products, including but not limited to the Website Builder and Newsletter Manager applications (“the Software”) and various related services (“the Services”) to our clients (“you”), subject to compliance with the following terms and conditions set forth here below (“this Agreement”), which apply to the WorkIT online web site located at www.workITonline.co.za (“the Site”). The Site is the property of WorkIT online. Our registered address is 5 Tuscan Mews, Onrus River, Hermanus, 7200, South Africa, at which address we will accept service of any legal notices and documents, with telephone number +27 84 555 0811.

THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO ALL USERS OF THE SITE, OUR SOFTWARE AND ALL SERVICES PROVIDED BY US. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU SHOULD NOT USE THE SITE NOR DOWNLOAD, INSTALL OR USE THE SOFTWARE OR ANY UPGRADE THERETO NOR MAKE USE OF ANY OF OUR SERVICES.

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX MARKED “ACCEPT TERMS AND CONDITIONS” (OR EQUIVALENT), OR BY PROCEEDING TO REGISTER, DOWNLOAD, INSTALL OR USE OUR SOFTWARE OR ANY UPGRADE THERETO OR USING ANY OF OUR SERVICES, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE YOU CHECK SUCH BOX OR LINK, OR DOWNLOAD, INSTALL OR USE THE SOFTWARE OR ANY UPGRADE THERETO OR USE ANY OF OUR SERVICES.

YOUR ATTENTION IS DRAWN TO THE WARRANTIES AND INDEMNITIES PROVIDED IN THIS AGREEMENT AS WELL AS THE LIMITATIONS ON LIABILITY.

If you reside in a jurisdiction which restricts the ability to enter into agreements such as this according to age and you are in such a jurisdiction and under such age limit, you may not enter into these terms and download, install or use the Software. By entering into this Agreement you verify that your use of the Software is allowed.

This Agreement is entered into between us and you, or the organisation that you represent and you hereby warrant that, in entering into this Agreement, you act as a principal and not as an agent for any undisclosed principal.

REGISTRATION

  1. You agree that the information you supply during the registration process will be true, accurate and complete and that you will not register under the name of another person. You will be responsible for preserving the confidentiality of your username and chosen password and will notify us of any known or suspected unauthorized use of your account. You agree to keep us informed of any change in the information you provided at the time of your initial registration.
  2. You agree to indemnify, defend and hold harmless WorkIT online as well as its affiliates, and their officers, directors, employees, agents, licensors and suppliers, from and against any and all liabilities, fines, losses, expenses and damages resulting from the supply of any information during the registration process which is not true, accurate and correct or arising from your failure to update such information as required or from any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing your account on the WorkIT online system.

GRANT OF LICENCE

  1. We grant you a non-exclusive and non-transferable licence to use the Software you have registered for on the terms and conditions set out in this Agreement. You agree not to exploit the Software for commercial gain under any circumstances, and agree to use it for your own private or business purposes only. You agree not to copy, modify, translate or create derivative works based on the Software, nor reverse assemble, de-compile or reverse engineer the Software, whether in whole or in part, or otherwise attempt to derive any source code subject to our copyright or that of any third party licensor, nor shall you permit, whether directly or indirectly, the sale, lease, sub-licence, transfer or assignment of the Software; nor shall you remove or alter any proprietary notices, logos or labels on or in the Software or front end user interface.
  2. We may make improvements, changes or upgrades to the Software in order to keep pace with the latest demands and technological developments, at its own discretion and without any notice to you. We are entitled, without any liability, to refuse, restrict, limit, suspend and/or interfere or interrupt the operation of the Software or provision of any of our Services without any notice to you for the improvement, change or upgrade of the Software or the Services or for any other reason.
  3. You hereby undertake to adhere to systems and acceptable use policies which we may publish online (which may be amended from time to time), including restrictions on aspects of the Services associated with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of the Software and the Services. You undertake to abide by all our current and future policy decisions.

CHARGES, COMMERCIAL TERMS AND PAYMENT

  1. The pricing and applicable charges for making use of the relevant Software products and Services you have registered for are located online at:
  2. http://www.workITonline.co.za/index.php?option=com_content&task=category&sectionid=14&id=34&Itemid=59
  3. We reserve the right to adjust our pricing and service charges at our sole discretion. Whilst we will inform you of any pricing changes it is your responsibility to check our Pricing Schedule from time to time. A change in pricing will be effective immediately and will be recovered from you as soon as possible thereafter.
  4. By completing the registration process and by providing us with the relevant information requested, you thereby authorise us to run a monthly debit order or to credit your account immediately against your chosen bank account in settlement of the charges due to us in terms of this Agreement and you hereby undertake to provide us with a valid debit order within 7 (seven) days of completing the registration process. Your bank account will be debited with the full outstanding amount for each of the products / services ordered in accordance with the payment terms and amounts stipulated on the order. Monthly debit orders are processed on the second last business day of every month in advance. Non-payment may result in a suspension of your WorkIT online account until all outstanding payments have been settled in full and interest shall run on all outstanding amounts at the rate of 2% per month, compounded monthly. We reserve the right to charge you for any bank charges we incur as a result of your debit order not being honoured for payment.
  5. You are entirely responsible for any and all activities that occur on your WorkIT online account and you shall be strictly liable for all charges debited against your account whether or not these charges are incurred by you or any other person, authorised or unauthorised, intentionally or unintentionally, or as a result of any virus, hack or security breach.

TERM OF AGREEMENT

  1. This Agreement shall be deemed to commence on the date that you successfully complete the online registration process and shall continue for a fixed period of 12 (twelve) months thereafter. Should neither one of us give notice in writing to the other one, no later than 30 (thirty) days prior to the end of the initial 12 (twelve) month period, this Agreement shall automatically continue for another 12 (twelve) month period, terminable on 30 (thirty) days written notice of termination by either party.
  2. Notwithstanding the above, we may suspend the Site or any part thereof or terminate your account at any time if: (i) any payment due by you in respect of the Software and/or the Services should not be received by us in terms of this Agreement; or (ii) we should determine that the Site is not being used by you in compliance with the terms of this Agreement.
  3. All provisions relating to intellectual property rights, limitations of liability, warranties and indemnities shall survive any termination of this Agreement.

INFORMATION SECURITY AND PRIVACY

  1. In order to operate the Software and to make use of the Services, you will receive User ID’s and passwords for the various products. You are required to set your own password. You agree to notify us in writing of any unauthorized and/or fraudulent use of your User ID or password. You agree to indemnify, defend and hold harmless WorkIT online, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Software, from any and all claims, losses, damages and expenses by, or on behalf of, you or any third party for any unauthorized or fraudulent use of your User ID or password.
  2. You hereby acknowledge that you understand that the use of Internet applications may subject a user to various risks including the exposure of sensitive or confidential information to persons for whom it was not intended, hacking, viruses, exposure to contaminated files and objectionable material, spamming, electronic fraud and other security risks. You agree that we shall not be responsible or liable for any intrusion or hack to the Software nor for any unauthorised access to the information or data stored or communicated by you or any other person using the Software or the Services of WorkIT online or any of its strategic partners, affiliates or third party service providers and it is your own responsibility to ensure that that only authorised persons have access to such information or data through adequate information security standards and procedures to be implemented and monitored by you. You furthermore agree to be bound by the terms of our privacy policy located at http://www.workITonline.co.za/index.php?option=com_content&task=view&id=23. We do not guarantee the non-exposure of your personal information or Internet Protocol (“IP”) address. Notwithstanding the terms of our privacy policy, you hereby assume the risk of any breaches of privacy.
  3. In addition, you agree to respect the privacy of third parties in your use of the Software and the Services and you accordingly hereby agree to abide by all applicable privacy and data protection related legislation.

RESPONSIBLE USE OF SOFTWARE AND SERVICES

  1. You agree not to use the Software or any of our Services for communications that are libelous, defamatory, pornographic, an invasion of privacy, obscene, abusive, illegal, racist, offensive, harmful to a minor or an infringement on any intellectual property rights of a third party or would otherwise violate the rights of any third party and/or may be unlawful. You agree to indemnify and hold WorkIT online, its affiliates, strategic partners and third party service providers and their respective directors, officers, employees and agents harmless from any claim or demand, made by any third party due to or arising out of content you communicate using the Software or any of our Services. You agree that we may intercept any communication to which you are a party in order to comply with any legal obligation to which we may be subject or for any other lawful purpose.
  2. You undertake at all times to acquaint yourself with and to abide by all legislation and regulations applicable to your use of the Software and the Services, and accordingly indemnify us against any and all damages or loss occasioned by your non-compliance therewith.
  3. Your use of the Services is at your sole risk. We are not responsible for the security or integrity of any information stored with us and associated with your account. You undertake full responsibility for the integrity of all files and information communicated via the Services, and you will ensure and maintain appropriate backup facilities of files and information stored on our servers.

DOMAIN NAME REGISTRATION

  1. Should you choose to make use of our domain name registration services, you hereby confirm and warrant that you are the owner of, or are otherwise authorised or entitled to use a trade or service mark associated with any domain name(s) used or applied for and used in conjunction with the Services and will not infringe the rights of any other person(s), whether in statute or at common law.
  2. Accordingly, you hereby indemnify WorkIT online and hold it harmless against any and all claims or losses arising out of any action brought by a third party whose rights in respect of a logo, business name or trade mark have been infringed by you.
  3. If you request us to register a domain name(s) for and on your behalf, you acknowledge that:
    1. we do not guarantee that the domain name(s) you request is/are available for registration, or that the use of such domain name(s) will not infringe any third party rights;
    2. we are not a domain name provider, but a mere third-party agent acting on your instructions, to the extent that those instructions are possible and lawful;
    3. the registration of the domain name(s) and its/their future availability and use is subject to the terms and conditions of use of the domain name(s) provider;
    4. we charge an additional service fee for the administrative processes involved in applying for, and where applicable, maintaining the registration of a domain name(s) on your behalf;
    5. any fees and associated charges incurred in the process of applying for, renewal and maintenance of registration of the domain name(s), including any administrative work performed by us following a dispute to the domain name(s) are for your account, and are non-refundable.

THIRD PARTY LINKS

  1. You consent to the placement by us of third party hyperlinks on the knowledge base Software user interface. You acknowledge and understand that by clicking on such hyperlinks you may activate and run other web applications or content downloads and or be directed to other websites or other communications channels and you grant your consent thereto.
  2. You shall not interpret such hyperlinking as constituting any relationship between us and any linked third party or any endorsement by us of such third party. Use of or reliance on any external links provided is at your own risk.

LINKING AND FRAMING

  1. Any third party site may link to the Site provided that such a link is directed at the home page only, unless we have given our prior written consent thereto. We may provide links to other websites as a convenience and the inclusion of any link does not imply our endorsement of such sites. Linked web sites or pages are not subject to the control of WorkIT online. WorkIT online shall not be held responsible or liable, directly or indirectly, in any way for the contents, use, or inability to use or access any linked web sites or any links contained in a linked web site. It is expressly prohibited for any person, business, entity, or web site to frame any page on this web site, including the home page, in any way whatsoever, without our prior written approval.

SEARCHING TECHNOLOGY

  1. Apart from bona-fide search engine operators no person may use or attempt to use any technology or applications (including web crawlers, robots or web spiders) to search, collect or copy content from the Site for any purpose whatsoever, without our prior written consent. The use of non-malicious search technology, such as ‘web-crawlers’ or ‘web-spiders’, to search and gain information from the Site is not permitted if such technology will result in slowing down this Site’s server or copyright infringement of any data and information available from the Site. Data and information may only be used as provided for in this Agreement. E-mail addresses, names, telephone numbers and fax numbers published on the Site may not be incorporated into any database, used for electronic marketing or similar purposes. No permission is given nor is it implied that information on the Site may be used to communicate unsolicited communications to us.

INTERCEPTION OF COMMUNICATION

  1. Subject to the provisions of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“ROICA”), you agree to our right to intercept, block, filter read, delete, disclose and use all communications (including all “data messages” as defined in the Electronic Communications and Transactions Act 25 of 2002 (“the ECT Act”)) sent using our Software or Services.

WARRANTIES

  1. We warrant that we own the Software and/or has sub-licensed the Software and/or has obtained valid licenses for all third party software used in the development of the Software and that the Software was developed with reasonable care and skill by properly qualified personnel employing good quality materials, techniques and standards in accordance with best computing standards. The warranties set forth above are exclusive and in lieu of all other warranties, whether statutory, express or implied. We licence and supply the Software “as is” and do not warrant that the operation thereof will be uninterrupted or error free. No warranty is given nor is to be implied as to the suitability of the Software for any particular purpose notwithstanding that any such purpose may be known or ought reasonably to have been known by us. We expressly disclaim all representations and warranties in relation to the accuracy and/or content of information contained on our Knowledgebase, and you hereby acknowledge that any reliance by you on such information is entirely at your own risk.

INTELLECTUAL PROPERTY

  1. Nothing contained in this Agreement shall convey any title or proprietary rights to you in or over the Software other than expressly provided for herein. You acknowledge that any and all intellectual property rights embodied in or associated with the Software are, and will remain, the sole property of WorkIT online.
  2. If the Software is alleged to constitute an infringement of any third party’s intellectual property rights or, as part of the settlement negotiations of any action concerning an infringement then, and in that event, we may at our sole option and expense procure for you the rights to continue using the Software; modify the Software so that it is non-infringing, without detracting from its overall performance and functionality; or substitute for the infringing Software other non-infringing software having a capability substantially the same as the Software.

LIABILITY AND INDEMNITY

  1. We shall not be liable for any delay, failure, breakdown, damage, loss, cost, claim, penalty, fine or expense arising from use of the Software or any Service; operator error on the part of you; any fault in the hardware, third party software or software supplied to or obtained by you from any entity other than ourselves; the intentional or negligent act or omission of any person not being a duly authorised employee, sub-contractor, agent of WorkIT online or any third party not authorised to act in terms of this Agreement; and the actions, omissions or service interruptions of any utilities provider or third party service provider, including a telecommunications service, electrical service or a supplier of a telecommunications or electrical service, VOIP service, electronic communications service provider or electronic communications network service provider.
  2. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR LOSS OF DATA, LOSS OF PROFITS OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, PERFORMANCE OR USE OF THE SOFTWARE OR ANY OF OUR SERVICES, OR ARISING FROM YOUR INCORPORATION OR ATTACHMENT OF ANY PROGRAM, PLUG-IN OR DEVICE TO THE SOFTWARE; CHANGES TO THE SOFTWARE BY YOU; ANY FAILURE TO BACKUP ANY DATA USED IN OR OTHERWISE ASSOCIATED WITH THE SOFTWARE; USE OF THE SOFTWARE FOR ANY OTHER PURPOSE OTHER THAN THAT FOR WHICH IT WAS DESIGNED; AND USE OF THE SOFTWARE ON ANY DEVICE OR SYSTEM OTHER THAN THE SPECIFIED OR RECOMMENDED PLATFORMS FOR THE SOFTWARE.
  3. IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR DELICTUAL DAMAGES SUFFERED BY YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS, AND INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE OR ANY OF OUR SERVICES, UNAUTHORISED USE OF YOUR USER ID OR PASSWORD, THE MARKETING, DELIVERY, INSTALLATION, FURNISHING, MAINTAINING, HOSTING OR SUPPORTING OF THE SOFTWARE BY US OR ANY PERSON APPOINTED BY US, THE PERFORMANCE OF THE SOFTWARE, AND WHETHER OR NOT YOU WERE AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  4. It is understood and acknowledged by you that the Software and Services are not intended to ensure, nor do we warrant, compliance with any common law, statutory or regulatory requirement or obligation to which you may be subject in your own jurisdiction. Use of the Software and Services is entirely at your risk.
  5. YOU HEREBY INDEMNIFY AND HOLD US HARMLESS AGAINST ANY CLAIM BY ANY THIRD PARTY RELATING TO ANY MALFUNCTION OF THE SOFTWARE OR ARISING OUT OF THE USE OF THE SOFTWARE OR SERVICES BY YOU. WE SHALL FURTHERMORE HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY BREACH OF A LEGAL OBLIGATION AS SPECIFIED ABOVE TO WHICH YOU OR ANY THIRD PARTY MAY BE SUBJECT.
  6. Subject to the above clauses, the entire liability of WorkIT online, and your exclusive remedy for damages related to or arising from this Agreement, whether in contract or in delict, will not exceed the average aggregate of the charges paid by you to us during the 3 (three) months directly preceding the claim.

WHOLE AGREEMENT

  1. This Agreement constitutes the whole agreement between us and you and no agreements, representations or warranties between the parties other than those set out herein or incorporated by reference are binding on the parties.

WAIVER & SEVERABILITY

  1. Any failure by us to exercise or enforce any right or provision of this Agreement shall in no way constitute a waiver of such right or provision. In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, those terms will be severable from the remaining terms, which will continue to be valid and enforceable.

MISCELLANEOUS PROVISIONS

  1. We reserve the right to modify the terms of this Agreement at any time by publishing the revised terms on the Site and providing you with a link thereto.
  2. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa and, save for any application for urgent injunctive relief, you agree that any dispute arising between us and you shall be resolved exclusively by means of arbitration held in Cape Town, South Africa.
  3. This Agreement shall be interpreted as including by incorporation by reference our privacy policy and our acceptable use policy(ies) as published from time to time on the Site.
  4. You will not be entitled to cede or assign this Agreement or any part thereof without our prior written consent and this Agreement shall be binding on your respective successors and assigns. We shall be entitled to assign our rights and obligations without your consent to an entity which acquires all or substantially all of the assets of WorkIT online, provided that such assignment does not relieve such assignee of its obligations under this Agreement.
  5. Neither one of us shall without the prior written consent of the other refer to itself as an authorised representative of the other, nor use the other’s logos, trade or service marks. Notwithstanding the foregoing, WorkIT online is hereby authorised to identify you as it’s customer for reasonable marketing and/or publicity announcements.