1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause of this Agreement. Unless a contrary intention clearly appears:
1.1. words importing:
1.1.1. any gender include all others;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them in this clause 2 and cognate expressions shall have corresponding meanings, namely:
- “Agreement” means this agreement and all annexures and schedules to this agreement;
- “App” means the mobile application that allows Users to access Facilities, Gates and Zones;
- “Applicable Law” means any law, by-law, ordinance, proclamation and/or statutory regulation which the Parties are required to observe by reason of the provision of the Services, use of or business with the Services and matters incidental thereto, including, but not limited to, any present or future legislation, measure, requirement, order, ordinance, rule, guideline, practice, concession, or request issued by any relevant authority, government body, agency or department, which is applicable to this Agreement;
- “Appmit” means Appmit Proprietary Limited (Registration number 2015/442559/07), a company registered and incorporated under the company laws of South Africa, with its registered address situated at Launchlab, Hammanshand Road, Stellenbosch, Western Cape, 7600; email: firstname.lastname@example.org;
- “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
- “Client Profile” means the profile that the Facility Owner creates in which the personal details of the Facility Owner and the Facilities are detailed, as set out in the Information Table where the Facility Owner concludes this Agreement in writing or on the Platform where the Facility Owner creates the Client Profile via the Platform;
- “Commission” means the amount payable by the Facility Owner to Appmit on Proceeds earned, as described in clause 6 and Annexure A;
- “Confidential Information” means the terms and conditions of this Agreement and any other information disclosed by one Party to the other, including, but not limited to, information regarding each Party’s products, services, product designs, prices and costs, trade secrets, know how, inventions, development plans, techniques, processes, programs, schematics, software, data, customer lists, financial information, sales and marketing plans, business opportunities, personnel data, research and development activities, pre-release products and any other information which the Receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the Disclosing Party;
- “Effective Date” means the date on which this Agreement will become effective, as reflected in the Information Table;
- “Facility Owner” means the Party who makes its Facilities available through the Platform in terms of this Agreement and as detailed in the Client Profile;
- “Facility” means the building or area belonging to the Facility Owner that can be accessed by Users with the App as determined by the Facility Owner, as further described in the Client Profile and on the Platform;
- “Fees” means the fees applicable to the Subscription Plan selected, as described in clause 6 and reflected in Annexure A and Annexure B;
- “Gate” means any access point of a Facility that is fitted with Hardware to enable the Facility to be accessed by a User through the App;
- “Hardware” means the hardware required to be installed at the Facility which enables Gates and Zones to connect to the App, thereby allowing Users to access the Facility, as further described in clause 6;
- “Information Table” means the Facility Owner Information Table as set out on page 1 of this Agreement containing the Client Profile;
- “Initial Period” means the initial contract term of this Agreement as reflected in the Information Table;
- “Intellectual Property” means copyrights, patents, trademarks, designs or models, trade patterns, trade names and any other type of intellectual property and any rights to them (including applications for and rights to obtain or use same) which are used and/or held, whether or not currently used, by Appmit in connection with rendering the Services in terms of this Agreement and/or any other rights to Intellectual Property;
- “Keys” means the mechanisms provided by Facility Owners to Users with which Users access the Facility, Gate or Zone with the App, as further described in clause 4;
- “MAU(s)” means monthly active users per Facility, as further described in clause 3;
- “Parties” means the parties to this Agreement;
- “Platform” means the website made available to the Facility Owner through which the Facility Owner manages its Facilities, Gates, Zones, Users and any other content displayed on the App;
- “Proceeds” means any amounts earned by the Facility Owner from the use of its Facilities by Users through the App;
- “Revenue” means the Proceeds less the Commission, which is transferred to the Facility Owner;
- “Services” means the services set out in clause 5 and Annexure A;
- “Subscription Plan” means the scale on which the Fees are payable, as further set out in Annexure B;
- “Termination Date” means the date on which this Agreement is terminated, in accordance with its terms;
- “User” means the people who use the App to access Facilities; and
- “Zones” mean the areas of a Facility to which access is controlled by the Facility Owner which can be accessed with the App;
1.3. 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 this Agreement;
1.4. 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 falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;
1.5. expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;
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;
1.7. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
1.8. any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be; and
1.9. any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.
2.1. Appmit provides the Platform and Hardware that allow a Facility Owner to grant Users access to a Facility through the App.
2.2. The Facility Owner conducts the business as described in the Client Profile.
2.3. The Facility Owner wishes to appoint Appmit to provide the Services to the Facility Owner.
2.4. The Parties have therefore entered into this Agreement to give effect to clause 2.3, and to ancillary matters.
3. commencement and duration
3.1. This Agreement will commence upon the signature or electronic acceptance of the Agreement by the Facility Owner and shall continue monthly until terminated by either Party in accordance with the terms of this Agreement.
3.2. Either Party may terminate this Agreement, which termination shall be effective 30 (thirty) days’ after written notice has been given to the other Party of such termination.
4. APPOINTMENT OF Appmit TO PROVIDE THE SERVICES
4.1. Subject to the terms and conditions of this Agreement, the Facility Owner hereby appoints Appmit to provide the Services on an exclusive basis.
4.2. Appmit accepts the appointment referred to in clause 4.1.
5. THE SERVICES
5.1. Appmit shall provide the Facility Owner with access to the Platform, App and Services as required.
5.2. The Platform shall enable the Facility Owner to:
5.2.1. create and maintain its Client Profile;
5.2.2. load its Facilities to the Platform in order to make the Facility available on the App;
5.2.3. select the Facility type as “Public Facilities” or “Private Facilities“;
5.2.4. designate relevant permissions to Private Facilities, which includes fragmenting Private Facilities into various Zones and Gates;
5.2.5. grant or revoke access to Users of Private Facilities by activating or deactivating Keys, as further set out in clause 4 below;
5.2.6. set permissions for Private Facility Users, including authorising Users to send Keys to other Users;
5.2.7. upload any relevant information about a Facility to be displayed on the App;
5.2.8. track Facility access (access log retention information) as determined by the relevant Subscription Plan subscribed to;
5.2.9. track MAUs;
5.2.10. appoint designated individuals with admin rights, enabling them to access the Platform and manage a Facility.
5.3. The Services include:
5.3.1. facilitation of the sale of Hardware;
5.3.2. facilitation of the sale of Keys to Public Facilities;
5.3.3. facilitation of a payment mechanism through a third party payment gateway service provider for the sale of Keys and receipt of Proceeds;
5.3.4. payment of Revenue to the Facility Owner; and
5.3.5. support and technical response as further set out in clause 9 below.
5.4. The following Keys are available:
5.4.1. Access Cards
18.104.22.168. A Facility Owner will issue a digital access card to a User via the App which will allow the User to access a Facility, Gates and Zones (“Access Card“).
22.214.171.124. Facility Owners can set permissions on Access Cards, including:
126.96.36.199.1. determining which Facilities, Gates and Zones the Access Card can access;
188.8.131.52.2. setting expiry dates for the Access Card;
184.108.40.206.3. authorising Users to grant Access Codes to third parties to access the Facility;
220.127.116.11.4. setting time restrictions during which Users can use the Access Card to access the Facility; and
18.104.22.168.5. setting anti-passback access requirements on the Access Card.
22.214.171.124. Access Cards are used through the App in conjunction with designated Hardware at Gates and Zones and can be used to access Private Facilities and Public Facilities.
5.4.2. Access Codes
126.96.36.199. Subject to the permissions of a User’s Access Card, a User may issue a code to a third party enabling the third party to access a Facility (“Access Codes“).
188.8.131.52. A Facility Owner can set permissions on Access Codes, including:
184.108.40.206.1. designating certain Facilities, Gates and Zones that the Access Code can access;
220.127.116.11.2. setting expiry dates for the Access Code;
18.104.22.168.3. limiting the number of entries and exits per Access Code;
22.214.171.124.4. setting time restrictions during which the User can access the Facility with the Access Code;
126.96.36.199.5. setting anti-passback access requirements on the Access Code; and
188.8.131.52.6. limiting the Access Codes to the permissions of the granting User’s Access Card.
184.108.40.206. Access Codes can be used through the App in conjunction with designated Hardware at Gates and Zones, or the Access Code can be used manually with Hardware at Gates or Zones or with a marshal to access the Facility.
220.127.116.11. Access Codes can be used to access Private Facilities and Public Facilities.
18.104.22.168. A Facility Owner can issue a virtual remote to a User via the App which will allow the User to access a Facility and Gates from any location (“Remote“).
22.214.171.124. A Facility Owner can set permissions on Remotes, including:
126.96.36.199.1. designating certain Facilities and Gates that the Remote can access;
188.8.131.52.2. limiting the locations from where the Remote can be used to access the Facility;
184.108.40.206.3. setting expiry dates for Remotes;
220.127.116.11.4. enabling Users to check the status of a Gate through the App (dependent on Hardware installed on the Gate); and
18.104.22.168.5. setting time restrictions during which the User can access the Gate.
22.214.171.124. Remotes are used through the App in conjunction with designated Hardware at Gates and may be subject to location limitations.
126.96.36.199. Remotes can be used to access Private Facilities and Public Facilities.
188.8.131.52. A Facility Owner can make permits available for sale through the App, allowing a User to access a Public Facility (“Permits“).
184.108.40.206. Permits are presented with the App at a Gate to the Facility and can be used to access the Gate through designated Hardware or manually by a marshal at the Gate.
220.127.116.11. Permits can be issued to allow single access to a Facility or repeated access.
18.104.22.168. Permits can be shared with other Users, but each Permit can only be used to access the Facility by one User. A User may therefore purchase a Permit to be used by a third party.
22.214.171.124. A User’s payment profile can be credited with funds deposited by the User or linked to the User’s selected bank account through the third party payment gateway service provider from which the User will make payment for the Permit.
126.96.36.199. Facility Owners use the App to monitor a User’s access to a Public Facility and charge a fee for such use upon the User’s exit from the Facility (“Ticket“).
188.8.131.52. The App will log a Ticket upon the User’s entry to and exit from the Public Facility through a Gate and levy a charge against the User’s payment profile on the App for the use of the Public Facility.
184.108.40.206. A User’s payment profile can be credited with funds deposited by the User or linked to the User’s selected bank account through the third party payment gateway service provider from which the User will make payment for the Ticket.
220.127.116.11. Tickets are used for single uses of Public Facilities. A new Ticket is issued upon each subsequent use of a Public Facility.
5.4.6. All Keys can be used to access Public Facilities but only those Keys listed in clauses 5.4.1, 5.4.2 and 5.4.3, namely Access Cards, Access Codes and Remotes, can be used to access Private Facilities.
5.5. Sale of Tickets and Permits
5.5.1. Appmit shall facilitate any sale of Permits and Tickets to Public Facilities via the App.
5.5.2. The payments by Users for such sales shall be facilitated by a third party payment gateway service provider.
5.5.3. Appmit shall levy a Commission on all Proceeds from the sale of Tickets and Permits, as further set out in clause 6.
5.6. The Facility Owner may be required to purchase and install certain Hardware and maintain an active internet connection in order for the App to access the Gates and Zones at their Facilities through the Hardware. The following Hardware is available for purchase:
5.6.1. IoT devices. IoT devices are installed at a Facility enabling the User to connect to the device through the App to toggle a Gate and gain access to the Facility.
5.6.2. Bluetooth low energy beacons (“BLE Beacons”). BLE Beacons are installed at Gates to determine a User’s proximity to the Gate, which will trigger the Gate to open when the User is within the required proximity to the BLE Beacons.
5.6.3. NFC tags. NFC tags are installed at Gates to enable the User to access the Gate by using the device on which the App is installed to access the Gate.
5.6.4. Magnetic strips. Magnetic strips are installed at Gates to enable Users to check the status of a Gate where the User has access to the Gate with a Remote.
5.7. Hardware will only allow a User’s App to access a Gate or Zone if the User’s Key is authorised to access the Gate or Zone and where the Hardware is connected to the internet.
5.8. A Facility Owner with existing hardware may not be required to purchase and install Hardware where the existing hardware is compatible with the App and Appmit’s technology and has a working internet connection. The Facility Owner will be required to authorise the existing hardware to be configured to connect to the App and Appmit’s technology.
5.9. Appmit shall make itself available to the Facility Owner for support and technical response in respect of the Services, Platform and App. The service levels in respect of support and technical response are further set out in Annexures A and B and are dependent on the Subscription Plan that the Facility Owner subscribes to.
5.10. As at the Effective Date:
5.10.1. the Parties have agreed to the Services;
5.10.2. the Facility Owner is aware that the use of the Platform to access Facilities require an active internet connection; and
5.10.3. Appmit hereby agrees and undertakes to render the Services to the Facility Owner, in accordance with the terms and conditions of this Agreement.
5.11. Appmit shall commence rendering the Services on the Effective Date and shall continue to render the Services for the term of this Agreement.
5.12. As further set out in Annexure A, Appmit may be required to supply Hardware to the Facility Owner at an additional charge.
6. FEES and commission
6.1. In consideration for the Services, the Facility Owner shall pay to Appmit the Fees.
6.2. The Fees are calculated based on the Subscription Plans, which are determined by the number of MAUs per Facility per month, as listed in Annexure B. The Facility Owner will be liable for a base Fee, based on the Subscription Plan, and any additional Fees incurred based on the number of MAUs.
6.3. MAUs are determined by the number of Users that make use of the App in a calendar month to access each Facility of a Facility Owner with an Access Card, Access Card or Remote. Any Users that do not use their Access Card, Access Code or Remote to access the Facility during a calendar month shall not be counted as a MAU for that calendar month. A User may access a Facility with multiple Keys per month but will only be counted as one MAU for the purposes of determinig the number of MAUs per month.
6.4. MAUs are metered and charged for based on the type of Key used to access the Facility. Access Cards and Remotes are counted jointly to determine the MAUs for key class “K1” and Access Codes are counted to determine the MAUs for key class “K2“. The Fees payable, in addition to the base Fee, are determined by the number of K1 and K2 MAUs in addition to the number of MAUs that are included in the Subscription Package subscribed to.
6.5. Appmit shall issue invoices to the Facility Owner on a monthly basis, in arrears, throughout the term of this Agreement.
6.6. Payment of the Fees shall be made by the Facility Owner to Appmit via automatic debit against the Facility Owner’s nominated bank account or via manual bank transfer within 14 (fourteen) days of the date of issue of a valid invoice by Appmit.
6.7. In consideration for the facilitation of any sales of Keys for Public Facilities, the Facility Owner shall pay to Appmit the Commission.
6.8. The Commission is calculated as a percentage of the Proceeds received from the sale of Permits and Tickets, as set out in Annexure A.
6.9. The Commission includes any payment gateway fees levied by the third party payment gateway service provider.
6.10. Permit and Ticket sales per Facility are accounted for weekly, the Commission deducted from all Proceeds from the sales, and Revenue is transferred to the nominated bank account of the Facility Owner, as set out in the Client Profile.
6.11. The Facility Owner agrees that on each anniversary of the Effective Date, the Fees and Commission may, if the duration of this Agreement extends beyond the 1st (first) anniversary of the Effective Date, be reviewed and increased on such anniversary of the Effective Date. In the event that the Fees and/or Commission are amended as contemplated in this clause 11, Annexure B shall be replaced with a new annexure reflecting the amended Fees and/or Commission.
6.12. In addition to the Fees and Commission, and subject to receipt of a valid tax invoice, the Facility Owner shall pay any applicable taxes and levies with regard to the Services supplied in terms of this Agreement, the Fees and the Commission at the rate and in the manner prescribed by Applicable Law from time to time.
6.13. All payments to be made by the Facility Owner to Appmit in terms of this Agreement shall be made by the Facility Owner:
6.13.1. without set-off or deduction of any kind; and
6.13.2. into the nominated bank account of Appmit, the details of which are set out on each invoice.
6.14. Notwithstanding clause 8 below, in the event that any amount payable by the Facility Owner in terms of this Agreement is not paid when due, then Appmit will be entitled to levy interest on such outstanding amounts at a rate of 2% (two percent) per month from the date of default, being 14 (fourteen) days from the date of issue of an invoice by Appmit, and which interest shall be calculated and capitalised on the same day of each month, in arrears, on the amounts due until the default has been remedied in full by the Facility Owner.
6.15. In addition to clause 6.14, where the Facility Owner fails to make payment of any amount payable within 14 (fourteen) days from the date of issue of an invoice by Appmit, Appmit shall be entitled, without any liability, to suspend all access to the Facility Owner’s Facilities and remove the Facility Owner from the Platform if the invoice remains unpaid after 30 (thirty) days from the date of issue of an invoice by Appmit.
7. FURTHER DEVELOPMENT OF SERVICES
7.1. If the Facility Owner at any time requires any development work in relation to the Platform or Services, it shall engage with Appmit in this regard with the aim to eventually provide a comprehensive written brief to Appmit. Appmit shall consider the terms of such brief, and will provide the Facility Owner with a written notice containing –
7.1.1. the services to be rendered by Appmit designed to render such additional services;
7.1.2. a fee schedule for such additional services; and
7.1.3. if Appmit deems necessary, any further terms and conditions relating to the provision of such additional services.
7.2. If the Facility Owner is satisfied with the fee schedule referred to in clause 1.2 and, if applicable, additional terms and conditions set out in the notice referred to in clause 7.1.3, the written notice referred to in clause 7.1 shall be signed by both Parties.
7.3. For the avoidance of doubt, if the written notice referred to in clause 1 is signed Appmit shall only render the additional services from the date on which the written notice referred to in clause 7.1 is signed by all the Parties.
7.4. The further terms and conditions referred to in clause 1.3 shall be in addition to the terms of this Agreement and the further terms and conditions shall prevail to the extent of any inconsistency between such further terms and conditions and the terms of this Agreement, unless explicitly agreed otherwise by both Parties.
7.5. Any additional Services shall be subject to additional charges levied by Appmit in accordance with the rates reflected in the fee schedule (unless otherwise agreed to by the Parties).
8. SUSPENSION of services
8.1. If, at any time during the duration of this Agreement, the Facility Owner wishes to suspend the Services, for any reason whatsoever, the Facility Owner must provide written notice, via email or the Platform, of such a suspension to Appmit prior to the end of the calendar month in question.
8.2. The Services shall be suspended at the end of the calendar month during which notice is given only once Appmit acknowledges receipt of the notice to suspend the Services.
8.3. Appmit shall respond to all notices to suspend the Services within 2 (two) business days of receipt of the notice and reserves the right to charge all Fees and suspend the Services at the end of the following calendar month where notice to suspend the Services is given within 2 (two) buisness days of the end of a calendar month.
8.4. During the period of suspension:
8.4.1. Users will not be able to access the Facilities affected by the suspension through the App;
8.4.2. the Facilities affected by the suspension will not be visible on the App;
8.4.3. the Facility Owner will not be able to access the Platform; and
8.4.4. Users will not be able to purchase Permits or Tickets to Facilities that are affected by the suspension.
8.5. Notwithstanding the suspension of Services contemplated in this clause 8, and subject to clause 18, the Fees earned shall remain due and payable, as contemplated in clause 6.
9. the facility owner’s OBLIGATIONS
9.1. The Facility Owner shall accurately display all details of the Facility, Gates and Zones on the App, including the prices applicable for Permits and Tickets.
9.2. The Facility Owner shall honour the purchase of a Ticket or Permit by a User and allow the User to access the Facility with a valid Ticket or Permit.
9.3. If the Facility Owner is unable to honour a Permit or Ticket for any reason, the Facility Owner shall immediately inform the User and offer the User a full refund.
9.4. The Facility Owner has the sole responsibility of providing the services as set out on the Permit or Ticket to the User.
9.5. The Facility Owner shall be solely responsible for providing Users with an alternative manner of access to a Facility in cases where access is not possible through the App for any reason whatsoever.
9.6. The Facility Owner agrees to comply with all applicable laws in its service offering to Users.
10. Appmit’S OBLIGATIONS
10.1. Appmit shall provide a Platform that enables the Facility Owner to load and manage their own content on the Platform and App.
10.2. Appmit shall issue Permits on the date of the User purchasing the Permit through the App and shall issue Tickets immediately upon Users entering a Facility.
10.3. Appmit will not:
10.3.1. be a party to any agreement between the Facility Owner and the User;
10.3.2. be liable to the User for the performance of any services in terms of Tickets or Permits, including without limitation where a User cancels its relationship with Appmit before using purchased Tickets or Permits; nor
10.3.3. be responsible for ensuring that any content loaded on the Platform and App by the Facility Owner is accurate or correct.
11.1. The Facility Owner undertakes, in favour of Appmit, that it shall abide by business principles regarding non-circumvention and shall not at any time, whether directly or indirectly, take any action, which would result in the Facility Owner dealing directly or indirectly with Users in an attempt to avoid paying the Fees or Commission.
11.2. In the event of a circumvention of Appmit, the Facility Owner shall be obliged to pay to Appmit the Fees and Commission that would be due to Appmit in terms of this Agreement, plus any and all expenses, including all legal fees (on the attorney and own client scale), as agreed liquidated damages flowing from the breach of these non-circumvention provisions, which measure of damages the Facility Owner accepts and confirm to be fair and reasonable.
12.1. Each Party to this Agreement represents and warrants to the other that in performing its obligations under this Agreement it will comply with all applicable laws and regulations and that it is free of any contractual obligations that would prevent it from entering into and performing its obligations under this Agreement.
12.2. Appmit gives no guarantee of any kind concerning the content or quality of the Platform, App, Hardware or Services. Appmit does not give any warranty (express or implied) or make any representation that the Platform, App, Hardware or Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose.
12.3. The Platform, App, Hardware and Services are used at the Facility Owner’s own risk.
12.4. The Facility Owner agrees that each of the warranties given will:
12.4.1. be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
12.4.2. continue and remain in force irrespective of whether the Facility Owner’s:
18.104.22.168. access to the Platform, App or Services is active, suspended or cancelled;
22.214.171.124. Hardware is operational, broken, stolen or otherwise; and
126.96.36.199. Gates or Zones are able to be accessed by Users; and
12.4.3. be deemed to be material.
13. LIMITATION OF LIABILITY
Appmit will not, under any circumstances, be liable to the Facility Owner for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which the Facility Owner may sustain or suffer (or with which the Facility Owner may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by the Parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of this Agreement for any reason.
14. No consequential losses
Under no circumstances whatsoever shall either Party be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such Party or its servants, agents or contractors or other persons for whose actions such Party may otherwise be liable in law.
The Facility Owner hereby indemnifies and holds harmless Appmit (including its shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, whether directly or indirectly, from a breach of this Agreement by the Facility Owner.
16. DATA PROTECTION
16.1. In this Agreement, the terms below shall have the meanings as defined in applicable law, including the Protection of Personal Information Act and the General Data Protection Regulation (EU) 2016/679 (collectively “Applicable Data Protection Laws“) and cognate expressions shall have corresponding meanings:
16.1.1. “Data Subject” means the person to whom Personal Information relates;
16.1.2. “Operator” means a person who Processes Personal Information for a Responsible Party in terms of a contract or mandate, without coming under the direct authority of that party, and “Processor” shall have the same meaning;
16.1.3. “Personal Information” means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, as defined in Applicable Data Protection Laws;
16.1.4. “Processing“, “Process” and “Processed” means any operation or set of operations which is performed on Personal Information, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
16.1.5. “Responsible Party” means a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for Processing Personal Information, and “Controller” shall have the same meaning.
16.2. The Parties acknowledge that as a result of the Services rendered in terms of this Agreement, or otherwise in their dealings, Personal Information (in various forms) of the Facility Owner and Users will be accessed, viewed and Processed by Appmit.
16.3. The Parties agree that they have familiarised themselves with the requirements and provisions of Applicable Data Protection Laws and have implemented processes and measures to meet the compliance requirements to the extent applicable to that Party.
16.4. Appmit warrants that all of its staff members, agents and contractors that will have access to or will Process Personal Information in terms of this Agreement have been, or will be in due course, adequately trained on all requirements and obligations in terms of Applicable Data Protection Laws.
16.5. For purposes of Applicable Data Protection Laws, Appmit shall be an Operator/Processor mandated by the Facility Owner to Process Personal Information in terms of this Agreement for the purposes of rendering the Services and providing the Platform and App, and will reasonably comply with all requirements relating to Operators/Processors as prescribed by Applicable Data Protection Laws.
16.6. If the Facility Owner is not domiciled in the Republic of South Africa, Appmit acknowledges that it will still be bound by the requirements as set out in this clause 16 and Applicable Data Protection Laws.
16.7. Appmit agrees to not Process or share any Personal Information received as a result of the Agreement for any purpose other than as specified and authorised in terms of this Agreement, unless the Facility Owner provides written consent to Appmit to Process the Personal Information for any other purpose. It is expressly agreed that Appmit will be able to appoint further Operators/Processors to render the Services without the written consent of the Facility Owner. Appmit will however inform the Facility Owner of any further Operators/Processors appointed.
16.8. Appmit agrees to only Process Personal Information in a manner that is adequate, relevant and not excessive for purposes of providing the Services as specified in this Agreement.
16.9. Appmit acknowledges and agrees that any Personal Information received as a result of this Agreement will remain the exclusive property of the Facility Owner.
16.10. The Facility Owner authorises Appmit to share Personal Information with further Operators/Processors. Appmit will enter into a written agreement with the further Operator/Processor that will include provisions to ensure that the further Operator/Processor implements appropriate technical and organisational measures to secure the confidentiality and integrity of the Personal Information, and which shall be effectively similar to the provisions of this Agreement. Such further agreement(s) with Appmit’s Operators/Processors will not detract from Appmit’s liability in terms of this Agreement.
16.11. Appmit may transfer Personal Information to a foreign country if such transfer will comply with the requirements of Applicable Data Protection Laws relating to the transfer of Personal Information to a foreign country. This includes, but is not limited to, a transfer of Personal Information to a foreign country for purposes of storing or archiving the Personal Information.
16.12. In the event of a transfer of Personal Information as per clause 11, Appmit will ensure that the transfer complies with Applicable Data Protection Laws of the jurisdiction of the recipient relating to Personal Information and that such laws, read together with the agreement with the recipient of such Personal Information, effectively upholds principles for Processing of the Personal Information that are:
16.12.1. substantially similar to the provisions of this Agreement; and
16.12.2. substantially similar to this clause 12, relating to the further transfer of Personal Information from the recipient to third parties who are in a foreign country.
16.13. Without limiting the Facility Owner’s other rights in law and subject to applicable confidentiality undertakings, the Facility Owner shall be entitled to:
16.13.1. at the Facility Owner’s own cost and upon 1 (one) month’s written notice, appoint an independent audit firm to perform an annual audit on Appmit’s privacy practices and controls relating to Personal Information received in terms of this Agreement; and/or
16.13.2. at the Facility Owner’s cost and with 2 (two) week’s prior notice, appoint an independent audit firm to perform ad hoc audits on Appmit’s privacy practices and controls relating to Personal Information received in terms of this Agreement, subject to there being a reasonable suspicion of a breach of the terms of this Agreement.
16.14. Appmit shall co-operate with any audit initiated in accordance with clause 16.13 and shall give the independent third party auditor reasonable and timeous access to Appmit’s premises and any necessary documentation or other information requested by such third party for purposes of the audit.
16.15. The Parties warrant that they shall take reasonable technical and organisational measures to prevent loss of, damage to, unauthorised destruction of, or unauthorised access to Personal Information Processed on in terms of this Agreement.
16.16. The Facility Owner hereby indemnifies and keeps Appmit harmless against any claims for loss or damage, including direct, indirect, consequential loss, damage or injury, suffered by the Facility Owner, its Users, any third parties or any Data Subject as a result of any wilful and/or negligent acts or omissions of Appmit, its employees, contractors, agents or further Operators/Processors whilst acting in the course and scope of the provision of the Services in terms of this Agreement.
16.17. The Parties shall, in writing, notify one another immediately upon becoming aware of the following:
16.17.1. any request or complaint received from a Data Subject (together with the full details of the request or complaint);
16.17.2. where there are reasonable grounds to believe that the Personal Information received from and Processed in terms of this Agreement has been accessed or acquired by any unauthorised person; and
16.17.3. where there are reasonable grounds to believe that a security breach has occurred or that a security breach is anticipated by the Parties (together with the full details of the breach or anticipated breach), any of its personnel, contractors or third party Operators/Processors that could result in the unauthorised access to either Party’s Personal Information by any unauthorised person.
16.18. If requested in writing, Appmit shall permanently destroy, delete or return all Personal Information received as a result of this Agreement within 1 (one) month from the date of termination of this Agreement or at any other time requested by the Facility Owner.
16.19. The Parties acknowledge and agree that any breach of the obligations under this clause 16 shall be deemed a material breach of this Agreement.
17. intellectual property
Any Intellectual Property, discovery, invention, secret process, improvement in a procedure made or discovered during the course of rendering the Services to the Facility Owner shall belong to and be the absolute property of Appmit. To the extent necessary, the Facility Owner hereby unconditionally and irrevocably assigns all rights to the Intellectual Property, discovery, invention, secret process or improvement in a procedure to Appmit.
18. Force Majeure
18.1. Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
18.2. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance, provided that if such period exceeds 60 (sixty) days, then either Party shall be entitled to terminate this Agreement immediately on written notice while the Party’s performance continues to be prevented.
19.1. Either Party shall be entitled to terminate this Agreement at any time for convenience upon 30 (thirty) days’ written notice to the other Party.
19.2. Appmit shall be entitled to terminate this Agreement immediately, if the Facility Owner:
19.2.1. has failed to pay the Fees due in terms of clause 6 and such payments are outstanding for more than 30 (thirty) days from the due date referred to in clause 6;
19.2.2. breaches the non-circumvention provisions of this Agreement as set out in clause 11;
19.2.3. takes any steps in contemplation of being placed under provisional or final liquidation;
19.2.4. attempts a compromise, composition, assignment or arrangement with its creditors;
19.2.5. passes a resolution for its voluntary winding-up;
19.2.6. has a final judgment of any court, sounding in money to the equivalent value of R50 000 (fifty thousand Rand) or more, granted against it that remains unsatisfied for a period of 14 (fourteen) days after it has been granted;
19.2.7. has any of its property, movable or immovable, attached in execution or by any process of any court;
19.2.8. makes default without remedy or threatens to make default in the payment of liabilities generally; or
19.2.9. commits any act or omission which is an act of insolvency in terms of the applicable insolvency laws.
20. EFFECT OF TERMINATION
20.1. Upon termination of this Agreement for any reason contemplated in this Agreement:
20.1.1. all amounts outstanding to Appmit shall become immediately due and payable, without demand or further notice of any kind, all of which are expressly waived by the Parties;
20.1.2. all Revenue payable to the Facility Owner shall become due and payable as per the terms of this Agreement, and the Facility Owner waives any right be demand earlier payment of any Revenue that may be due;
20.1.3. Users will no longer be able to access the Facilities through the App;
20.1.4. the Facilities will no longer be visible on the App;
20.1.5. the Facility Owner will not be able to access the Platform;
20.1.6. Users will not be able to purchase Permits or Tickets to Facilities; and
20.1.7. both Parties shall immediately delete all electronic copies and destroy all hard copies of all Confidential Information.
20.2. The termination or expiration of this Agreement shall not affect any liabilities or obligations, including, without limitation, payment and indemnification obligations, which arose pursuant to the terms of this Agreement prior to the date of termination of this Agreement.
20.3. The Facility Owner shall be solely liable to any Users who have purchased a Ticket or Permit that have not been used by the User prior to termination of this Agreement, subject to clause 4 below.
20.4. Where a User has purchased a Ticket or Permit for a Facility that is subsequently removed from the App due to the termination of this Agreement, and the Revenue has not been transferred to the Facility Owner, Appmit shall refund any amount paid by the User in terms of the agreement between Appmit and User, and shall invoice the Facility Owner for all costs incurred by Appmit in facilitating the refund and for the Commission in respect of the refunded Ticket or Permit.
If either Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so then the aggrieved Party will be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party’s right to claim damages.
22.1. Any dispute which arises out of or pursuant to this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration in accordance with the arbitration rules and legislation for the time being in force in the Republic of South Africa.
22.2. That arbitration shall be held:
22.2.1. with only the Parties and their representatives present;
22.2.2. at Cape Town.
22.3. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
22.4. The provisions of this clause 22 are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
23.1. Entire agreement: this Agreement constitutes the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any other discussions, agreements and/or understandings regarding the subject matter of this Agreement.
23.2. Amendment: no change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties.
23.3. Confidentiality: neither Party shall disclose any Confidential Information to any third party that is not a Party to this Agreement without the prior written approval of the other Party. Notwithstanding the foregoing, either Party may disclose Confidential Information in response to the order, requirement or request of a court, administrative agency, or other governmental body.
23.4. Law and jurisdiction: this Agreement and all obligations connected to it or arising from it shall be governed and interpreted in terms of the laws of South Africa. Each Party submits to the jurisdiction of the South African courts.
23.5. Good faith: the Parties shall in their dealings with each other display good faith.
23.6. No waiver: the failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment of such Party’s right to enforce any such provision or right in any other instance.
23.7. No assignment: the Facility Owner will not be entitled to cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of Appmit.
23.8. Relationship between the Parties: the Parties agree that neither Party is a partner or agent of the other Party and neither Party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.
23.9. No representation: to the extent permissible by law, no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
23.10. Severability: any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
23.11. Counterparts: this Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
23.12. No stipulation: no part of this Agreement shall constitute a stipulation in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
23.13. Address for service: the Parties choose as their address for service for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses described for such Party on the Information Table for the Facility Owner and in clause 1 for Appmit. Notwithstanding anything to the contrary set out in this clause, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address.
ANNEXURE A – fees, commission, hardware, support and technical response
1. the fees
1.1. The Facility Owner shall be liable for a monthly Fee as set out in Annexure B according to the number of MAUs accessing each Facility per month.
1.2. The Subscription Plans are based on:
1.2.1. a fixed monthly base fee based on the number of MAUs; and
1.2.2. any orders by Facility Owners for additional Keys based on the Key types ordered (“Additional Orders“).
1.3. Appmit shall issue the Facility Owner with a tax invoice by the 5th (fifth) business day of the following calendar month, setting out the Fees payable, including the Fees payable in respect of any Additional Orders, for the calendar month in question.
1.4. Fees are inclusive of VAT.
1.5. The Fees shall be payable into the bank account of Appmit with bank details as provided on the electronic invoice automatically sent to the client at the end of each month for services used:
2.1. The Facility Owner shall be liable for Commission on any Proceeds received from the sale of Tickets and Permits through the App.
2.2. Commission shall be levied at 20% (twenty percent) of the Proceeds from the sales of Tickets and Permits.
2.3. Appmit shall deduct the Commission from the Proceeds received and transfer the Revenue to the Facility Owner’s nominated bank account in the Client Profile.
2.4. Appmit shall reconcile all Ticket and Permit sales made weekly and transfer the Revenue, after the deduction of Commission from the Proceeds, to the Facility Owner within 1 (one) week of reconciling the sales.
2.5. Appmit shall provide the Facility Owner with a statement of the number of Ticket and Permit sales, the initial Proceeds received, the Commission payable for the period, and the Revenue transferred to the Facility Owner.
2.6. The statement will not include any details of each individual sale as this information is accessible by the Facility Owner on the Platform.
3.1. Should the Facility Owner be required to purchase Hardware from Appmit, the following Hardware is available for purchase:
|Hardware||Cost per unit (ZAR) (VAT inclusive)|
|IoT device||R3 800.00|
3.2. Hardware is sold as is.
3.3. The Facility Owner shall be liable for:
3.3.1. any delivery fees to obtain the Hardware;
3.3.2. installation costs; and
3.3.3. service fees in respect of the Hardware.
3.4. Where available, the Facility Owner may appoint Appmit to deliver and install the Hardware at the Facility Owner’s Facility and expense.
4. support and technical response
4.1. Appmit shall provide the Facility Owner with online and telephonic support in respect of the Services, Platform and App and provide technical response where necessary and required.
4.2. The service levels (availability of Appmit) in respect of any support and technical response is dependent on the Subscription Plan of the Facility Owner as detailed in Annexure B.