1 PARTIES
1.1 This Agreement is entered into between:
1.1.1 CALENDARSYNC (PTY) LTD, a Company duly registered in terms of the Companies Act of the Republic of South Africa, with registration number 2019/295459/07 (“Calendarsync”) and
1.1.2 the entity agreeing to these terms (“Client”).
2. EFFECTIVE DATE
2.1 This Agreement will come into effect from the date the Client checks the “I agree” box and starts the first subscription; or, if applicable, the date on which the Agreement is countersigned (the “Effective Date”).
2.2 If a representative is entering into the Agreement on behalf of the Client or another entity, the representative represents and warrants that:
2.2.1 he/she has full legal authority to bind the Client or the applicable entity to these terms;
2.2.2 he/she has read and understands this Agreement; and
2.2.3 he/she agrees, on behalf of the Client that he/she represents, to the terms of this Agreement.
2.3 If a representative doesn’t have the legal authority to bind the Client or the applicable entity, such representative should not click the “I Agree” button below (or, if applicable, should not sign this Agreement).
2.4 This Agreement governs the Client’s access to and use of the Services as ordered in the applicable Subscription Form.
3. INTRODUCTION
3.1 In this Agreement, Calendarsync provides the Services, whereas the Client requires provision of the Services to it; and whereas Calendarsync is able to provide the Services to meet the Client’s requirements as set out in this Agreement.
4. PURPOSE OF THE AGREEMENT
4.1 The purpose of the Agreement between the Client and Calendarsync is to:
4.1.1 optimise collaboration between Service provider and the Client;
4.1.2 define the duties and responsibilities of the Parties; and
4.1.3 regulate the relationship between the Client and Calendarsync.
5. APPOINTMENT, COMMENCEMENT AND DURATION
5.1 The Client hereby appoints Calendarsync to provide the Client with a range of Calendar Support Services, in accordance with the terms and conditions as set out in this Agreement.
5.2 This Agreement shall commence on the Effective Date and shall continue in full force and effect for the duration of the Subscription Period.
6. PROVISION OF SERVICES
6.1 In the execution of its Services, Calendarsync will make use of the Google Workspace Infrastructure and software, and may make use of the Services of any third-party service provider, which third-party service provider may be selected in the sole discretion of Calendarsync.
6.2 The Services are implicitly bound by the Google Workspace Online Agreement and the Client acknowledges that it fundamentally defines the provisions of the Service.
6.3 Calendarsync will do all things reasonably necessary to provide and maintain the highest level of Services to the Client.
6.4 Calendarsync shall provide the Client with an online account and support services, which Services shall include the following:
6.4.1 Sharing of calendars with nominated Google Gmail based email addresses;
6.4.2 Calendarsync will make calendar names available for editing;
6.4.3 Calendarsync will make links available for sharing that can be used to subscribe to a calendar;
6.4.4 Calendarsync will change the sharing rights of the calendars to the Calendar Manager, as requested by the Client or the Event Manager.
7. SERVICE FEATURES
7.1 All Calendar Services are only available to Subscribers that make use of Apple, IOS and Google Android platforms, but Calendarsync does not guarantee that all Apple, IOS and Google Android operating systems will be compatible with the Calendar Services;
7.2 All activities added to the Calendars will automatically be updated to the Client’s and subscribed persons’ phone calendar apps within a reasonable time;
7.3 The Service includes a selected amount of modifications per year, which includes, changing the names of calendars and creating and/or deleting calendars;
8. USE OF THE SERVICES.
8.1 The Client assumes the obligation to:
8.1.1 ensure that its use of and access to the Services will at all times be in accordance with all applicable laws and regulations of application and applicable to such use and access of the Services;
8.1.2 ensure that all information provided to Calendarsync for the population of the calendars are accurate and correct;
8.1.3 ensure that any access to the online accounts as provided by Calendarsync is protected and that no unauthorised personnel will have access to the online accounts;
8.1.4 ensure that the calendars provided by Calendarsync are accessed through an approved browser;
8.1.5 ensure that all company information exchanged between the Parties remains confidential; and
8.1.6 The Client acknowledges that all information shared on the calendars, form part of the public domain and that access to the Client’s calendars cannot be controlled.
9. PRICE AND PAYMENT
9.1 The Client will pay all Fees for the Services via the online portal.
9.2 Client may elect one of the following payment options, when subscribing to the Services:
9.2.1 Monthly Plan: If a Client selects this option, the Client will be charged a monthly fee and must make payment before the beginning of every consecutive month to have continued access to the calendars.
9.2.2 Annual Plan: If the Client selects this option, the Client will be charged a rate for access to the calendars over an annual term. The Client will be charged before the term expires in order to ensure continued access to the calendars.
9.3 Payment options may not be available to all Clients; therefore Clients may also pay for the Services using the payment options as listed below:
9.3.1 Payment: All payments to be paid ZAR Rand, unless otherwise indicated on the Order Form or invoice. Fees for orders where the Client is paying with a credit card, debit card or other non-invoice form of payment, are due at the start of the month for which the Client will receive the Services.
9.3.2 Cancellation: You can cancel your Subscription at any time, and you will continue to have access to the Calendar on my Phone Service through the end of your Subscription period. To the extent permitted by the applicable law, payments are non-refundable, and Calendarsync will not provide refunds or credits for any partial Subscription periods. To cancel, go to the “Account” page and follow the instructions for cancellation. If you cancel your membership, your account will automatically close at the end of your current Subscription period. To see when your account will close, click “Billing details” on the “Account” page. The information on the calendars will be retained for a month after the Subscription is cancelled where after the information on the calendars will be deleted.
9.3.3 Changes: Calendarsync reserves the right to change subscription plans and/or the fees of the Service from time to time; however, any changes to fees and/or subscription plans will apply to subsequent billing cycles following written notice of the change(s) to the Client.
10. GUARANTEE AND WARRANTY
10.1 Calendarsync warrants that it has acquired and will continue to acquire, where required, all necessary licences and permissions for the provision of these Services.
10.2 The Services are provided “as is” and without warranty or condition.
10.3 It is specifically recorded that Calendarsync does not warranty compatibility with all electronic devices. Service provided is however compatible Android and iOS devices;
11. PERSONAL INFORMATION
11.1 The Client warrants that all personal Information provided to as part of subscribing to the Service may be retained and stored.
11.2 The Client warrants that the information posted on the calendars, has been obtained with the necessary consent as prescribed in the Protection of Personal Information Act, Act 4 of 2013.
11.3 For the purposes of this Agreement, the Client acknowledges that all Personal Information entered on the calendars will be used for a public calendar.
11.4 In the event that the Client provides Personal Information of any person who is over the age of 18 (eighteen) years, the Client must ensure that the proper consent has been obtained from such person in relation to the following:
11.4.1 that Calendarsync may Process the Personal Information for Processing Purposes;
11.4.2 that the person whose Personal Information has been provided by the Client to Calendarsync is aware of, and understands the Processing Purpose;
11.4.3 that the records of the Personal Information may be retained by the Client and Service Provider, even after the Processing Purpose has been met, which retention is subject to the following:
11.4.3.1 Personal Information shall not be processed in any manner other than for storage purposes by the Client and/or Service Provider; and
11.4.3.2 in the event that the Processing Purpose is revived for any reason whatsoever, that consent has been given, that Calendarsync may Process the Personal Information for the Processing Purpose until such time that the Processing Purpose is met.
11.4.3.3 that the person whose Personal Information has been provided by the Client is aware that he/she may at any time object to the Processing of Personal Information in terms of the Protection of Information Act.
11.4.3.4 that the person whose Personal Information has been provided by the Client is aware that the/she may at any time lodge a complaint with the Information Regulator in terms of the Protection of Information Act.
11.5 In the event that the Client provides Personal Information of any person who is under the age of 18 (eighteen) years, the Client must ensure that the proper consent has been obtained from a Competent Person in relation to the following:
11.5.1 that Calendarsync may Process the Personal Information for Processing Purposes;
11.5.2 that the Competent Person is aware of, and understands the Processing Purpose;
11.5.3 that the records of the Personal Information may be retained by the Client and Service provider, even after the Processing Purpose has been met, which retention is subject to the following:
11.5.3.1 Personal Information shall not be processed in any manner other than for storage purposes by the Client and/or Service Provider; and
11.5.3.2 in the event that the Processing Purpose is revived for any reason whatsoever, that consent has been given, that Calendarsync may Process the Personal Information for the Processing Purpose until such time that the Processing Purpose is met.
11.6 that the Competent Person is aware that he/she may at any time object to the Processing of Personal Information in terms of the Protection of Information Act.
11.7 that the Competent Person is aware that the/she may at any time lodge a complaint with the Information Regulator in terms of the Protection of Information Act.
11.8 That the Calendar Manager is appointed to scrutinise the calendar contents and ensure that only allowed information is shared.
11.9 That Calendar administrators are briefed on the type of information that may be added to the calendars and the risks pertaining to the public availability of the data.
12. INDEMNIFICATION
12.1 The Client agrees to indemnify Calendarsync, and to hold Calendarsync harmless from any loss, expense or damages that the Client or any person making use of the calendars, provided by Calendarsync, may sustain or incur as a consequence of:
12.1.1 failure by the Client to provide accurate and correct information to the Service Provided as provided for in clause 8.1.2;
12.1.2 failure by the Client to obtain the necessary consent as prescribed for in the Protection of Personal Information Act, and provided for in clause 11.1 to 11.9.
12.1.3 any content that is published on the calendars provided by Calendarsync;
12.1.4 any data breach that may occur;
12.1.5 The Client waives all special, indirect and consequential damages against Calendarsync. These terms will not limit any non-waivable warranties or consumer protection rights that the Client may be entitled to under the laws of South Africa.
12.1.6 any Google GSuite Infrastructure and/or software service interruptions that may interrupt the use of the calendars and/or failure of Apple, IOS and Google Android platform being compatible with the Calendar Services provided by Calendarsync;
12.1.7 any cancellations of subscriptions by Calendarsync as referred to in clause 9.3.2.
13. BREACH
13.1 For the purpose of this clause, a breach shall be deemed to be material if:
13.1.1 it is incapable of being remedied by payment and goes to the root of the contract, and the Party committing the breach fails to remedy it within 14 (fourteen) days after receipt of Written notice from the other Party calling on it to do so; or
13.2 If either Party commits any material breach of this Agreement, then the Party giving notice may claim specific performance or cancellation of this Agreement, without prejudice of any other right that he/she may have, including any claim for damages.
13.3 If Calendarsync becomes aware that the Client or the calendar manager, Calendar administrator or subscriber use of the Services breaches the Agreement, Calendarsync will request, in writing, that the Client corrects the breach.
13.3.1 In the event that the Client fails to correct the said breach within 24 hours or such period as provided for, or if Calendarsync is otherwise required by law to take action, then Calendarsync may Suspend the Services.
14. RELATIONSHIP
14.1 This Agreement does not constitute either of the Parties an agent or legal representative of the other, for any purposes whatsoever, and neither of the Parties shall be entitled to act on behalf of, or to represent the other unless duly authorised thereto in Writing.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Except as expressly stated in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property.
15.2 As between the parties, the Client retains all Intellectual Property Rights in Customer Data, and Google retains all Intellectual Property Rights in the Services.
16. DISPUTE RESOLUTION
16.1 Any unresolved dispute between the Parties arising out of, or in connection with this Agreement, including its existence, application, breach, interpretation, validity, termination or cancellation, but excluding non-payment from the Client, shall be submitted to and decided by arbitration in terms of The Arbitration Act, 1965, of the Republic of South Africa, subject to the following provisions:
16.1.1 he tribunal shall consist of one arbitrator;
16.1.2 the arbitration proceedings shall be in accordance with the formalities and/or procedures determined by the arbitrator;
16.1.3 the arbitration shall be held in Pretoria as determined by the arbitrator;
16.1.4 the language of the arbitration shall be English;
16.1.5 the arbitration shall be binding and not be appealable to any court in any jurisdiction. Any Party may however enter such decision in any court having competent jurisdiction;
16.1.6 the parties shall endeavour to ensure that the arbitration is completed within 90 (ninety) days after notice requiring the claim to be referred to arbitration is given;
16.1.7 the decision of the arbitrator shall be in writing. The arbitrator shall give reasons for his award; and
16.1.8 the proceedings and decision shall be confidential to the parties and their advisers.
16.2 The arbitrator shall be a practicing attorney or advocate of not less than 10 (ten) years standing, who, in the absence of agreement reached within 14 (fourteen) days of the arbitration being demanded, shall be appointed by the chairperson or acting chairperson of the Gauteng Law Council. This arbitration clause shall not preclude a party from seeking urgent relief in a court of appropriate jurisdiction, where grounds for urgency exist.
17. DOMICILIUM CITANDI ET EXECUTANDI
17.1 Domicilium is presumed to be as per the information submitted at the time of subscription for this service.
17.1.1 Each of the Parties shall be entitled from time to time, by written notice to the others, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or poste restante and/or to vary its telefacsimile number.
17.2 Any notice given and any payment made by any Party to another (“addressee”) which is:
17.2.1 delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery; and
17.3 Any notice given by any Party to another which is transmitted by email to the addressee at the addressee’s email address for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the first business day after the date of successful transmission thereof.
17.4 Notwithstanding anything to the contrary in this domicilium clause, a written notice or other communication actually received by a Party shall be adequate written notice or communication to it notwithstanding that the notice was not sent or delivered to its chosen address or telefacsimile number.
18. FORCE MAJEURE
18.1 Neither of the Parties shall be liable for a failure to perform any of its obligations in so far as it proves that:
18.1.1 the failure was due to an impediment beyond its control;
18.1.2 it could not reasonably be expected to have taken the impediment and its effects upon the Parties’ ability to perform into account at the time of the conclusion of this Agreement; and
18.1.3 it could not reasonably have avoided or overcome the impediment or its effects.
8.2 For the purposes of this clause “impediment” does not include lack of authorisation, licences, permits or approvals necessary for the performance of this agreement which need to be issued by the appropriate authority.
18.3 Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the day upon which such impediment seizes to exist; provided that if such impediment continuous for a period of more than 30 (thirty) days, either of the Parties shall be entitled to terminate this Agreement.
19. WHOLE AGREEMENT
19.1 The Parties hereby confirm that this Agreement is the whole and only agreement between them with regard to the subject matter dealt with in this Agreement.
19.2 The Parties hereby confirm that this Online Agreement replaces all other agreements, which exist or may have existed.
20. AMENDMENT
20.1 Except as specifically stated otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement and signed by both parties.
21. GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be governed by and construed according to the laws of the Republic of South Africa.
22. RELAXATION
22.1 No latitude, extension of time or other indulgence which may be given or allowed by any Party to any other Party in respect of the performance of any right arising from this Agreement and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or estop such party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
23. SEVERABILITY
23.1 If any term, condition, provision or performance or any part of a term, condition, provision or performance of this Agreement is determined to be invalid, illegal, unlawful or unenforceable to any extent, that term, condition, provision or performance or the relevant part thereof shall be removed from the remaining terms, conditions, provisions and performance of this Agreement by writing and per agreement of the Parties and the remainder of the Agreement shall remain of full force and effect, or amended to make it valid, lawful and enforceable, in such a manner as to leave the amended Agreement substantially the same in essence, and the Agreement so amended shall remain of force and effect.
24. WAIVER
24.1 Failure or neglect by any Party/ies, at any time, to enforce any of the provisions of this Agreement, shall not, in any manner, be construed to be a waiver of any of its/their rights in that regard and in terms of this Agreement.
24.2 Such failure or neglect shall not, in any manner, affect the continued, unaltered validity of this Agreement, or prejudice the right of such Party/ies to institute subsequent action.
25. LIABILITY
25.1 Limited Liabilities:
25.1.1 To the extent permitted by applicable law and subject to Section 25.2 neither party will have any Liability arising out of or relating to the Agreement for any lost revenues, profits, savings or goodwill; or indirect , special, incidental, consequential, or punitive damages.
25.1.2 Each party’s total Liability for damages arising out of or relating to the Agreement is limited to the Fees paid by the Client under the Agreement during the 12 month period before the event giving rise to liability.
25.2 Unlimited Liabilities:
25.2.1 Nothing in the Agreement excludes or limits either party’s Liability for death, personal injury or tangible personal property damage resulting from its negligence or the negligence of its employees or agents; its fraud or fraudulent misrepresentation; obligations under Section 12 ; its infringement of the other party’s Intellectual Property Rights; its payment obligations under the Agreement; or matters for which liability cannot be excluded or limited under applicable law
