Terms

EFFECTIVE: APRIL 30, 2021

1. acceptance of terms
   1. Clicking the Agree button constitute a valid and binding agreement between atWORK and the End User on the terms recorded herein.
2. atwork system subscritpion
   1. atWORK has developed the atWORK System which it makes available to End Users via the internet on a subscription basis for their Use.
   2. Subject to the End User acquiring the atWORK System Subscription in accordance with the terms and conditions of that Agreement, atWORK hereby grants to the End User a non-exclusive, non-transferable right to Use the atWORK System for the duration of that Agreement.
   3. The End User and its Users shall not:
      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:
         1. and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any portion of the atWORK System and/or Documentation (as applicable) in any form or media or by any means; or
         2. attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the atWORK System or its functionality or attempt to do any of these or allow any of its employees, servants, officers, agents or contractors to do so or to attempt to do so.
   4. The End User shall prevent any unauthorised access to, or Use of, the atWORK System and the Documentation and, in the event of any such unauthorised access or Use, shall promptly notify atWORK.
   5. the End User and its Users shall not have the right to sub-license, transfer, cede, assign or make-over any of its rights to Use the atWORK System in any way, either in whole or in part, to any third party.
   6. the End User shall not copy nor permit any party to copy the atWORK System, except to allow Users to make copies of the data captured by the End User on the atWORK System
3. commencement and duration
   1. This Agreement shall commence on the Commencement Date and will continue as long as the End User is a licensed user.
4. limitation of liability
   1. In terms of the provisions of Section 49 of the CPA, read with Section 48 thereof, the End User’s attention is specifically drawn to the limitations of liability of atWORK, the assumption of risk and liability by the End User and the indemnities provided by the End User to atWORK as set out in these Terms and Conditions as well as this Clause 6.
   2. In addition to any other specific exclusions of liability contained herein and unless otherwise expressly stated herein, the Parties agree the End User shall have no claim whatsoever against atWORK for any loss, damage or injury, of any nature, occasioned by any defect in the atWORK System supplied by atWORK or the performance of any services relating to the atWORK System, or any failure to provide adequate instructions in respect of any hazards that may arise from the use of the atWORK System, save to the extent that such loss, damage or injury is contemplated in Section 61 of the CPA.  The provisions of Section 61 of the CPA shall not apply in instances where the CPA is not applicable to the End User.
   3. Nothing in this Agreement must be interpreted as in any way limiting the rights of atWORK to raise such defences as may be available to atWORK at common law or in terms of any legislation.
   4. To the extent that the provisions of the CPA may be applicable to the End User, atWORK acknowledges the rights of the End User in terms of the CPA and in particular the End User’s right to receive goods (atWORK System) that–
      1. are reasonably suitable for the purposes for which they are generally intended;
      2. are of good quality and free of defects; and
      3. will be useable and durable for a reasonable period, having regard to the use to which they would normally be put and to all surrounding circumstances.
   5. Notwithstanding the provisions of Clause 6.4 above:
      1. Unless the End User has specifically informed atWORK of the intended use of the atWORK System, atWORK does not warrant that the Use of the atWORK System by the End User will be fit for the purpose that the End User intends using the atWORK System for;
      2. If any defect in the atWORK System has been caused thereto by the acts or omissions of the End User, atWORK will not be liable in terms of the implied warranty of quality contained in the CPA.
5. guarantee
   1. The Guarantee shall only be enforceable if the End User gives atWORK Notice of a Guarantee Claim within fourteen 14 (Fourteen) calendar days after the atWORK System has failed to perform in accordance with the Guarantee.
   2. Upon receipt of a valid Guarantee Claim, atWORK’s only liability shall be, at atWORK’s sole discretion, to either:
      1. restore the End User’s Use of the atWORK System in accordance with the atWORK System Documentation; or
      2. refund the End User with the Subscription Fees for the calendar month immediately preceding the month in which the Notice of the Guarantee Claim was given.
   3. atWORK shall not have any liability in respect of a Guarantee Claim, if that Guarantee Claim arises is as a result of or in connection with:
      1. unauthorized modification(s) to the atWORK System by the End User or any third party;
      2. damage to the atWORK System by the End User;
      3. neglect of the system on which the atWORK System operates or of the operating procedure prescribed by atWORK;
      4. failure of electrical power;
      5. use of the atWORK System other than the Use of the atWORK System as set out in the atWORK System Documentation;
      6. a combination of computer hardware and/or software applications functioning in conjunction with the atWORK System, where such computer hardware or software application has not been approved by way of a Notice to the End User by atWORK, as being compatible with the atWORK System.
   4. Any liability on the part of atWORK arising from any cause whatsoever relating to the Use of the atWORK System other than the Guarantee, is specifically excluded. Without limiting the generality of the foregoing, atWORK shall not be liable for any delay, failure, breakdown, damage, loss or injury caused by:
      1. the Use of the atWORK System or any inaccuracies resulting from the Use of the atWORK System or any financial needs analysis proposals or reports generated through the Use of the atWORK System;
      2. programs and support services supplied to or obtained by the End User without the consent or knowledge of atWORK; or
      3. atWORK System or programs modified by the End User or any third party not authorized to do so in terms of the Agreement; or
      4. the actions or requirements of any telecommunications authority or a supplier of telecommunications services or atWORK System.
   5. In no event shall atWORK be liable to the End User for any loss of profits or for incidental, special or consequential damages arising out of or in connection with the Use of the atWORK System or the delivery, installation, servicing, performance or Use of it in combination with other computer software.
6. intellectual property rights
   1. The End User acknowledges that any and all the Intellectual Property Rights used or embodied in or in connection with the atWORK System are and will remain the sole and exclusive property of atWORK. This Agreement does not grant the End User or any User any rights to any of the Intellectual Property Rights of atWORK.
   2. The End User and Users shall not question or dispute the ownership of atWORK’s Intellectual Property  Rights at any time during the continuation in force of the Agreement or thereafter and hereby waives and abandons, irrevocably and unconditionally, any such claims or rights.
   3. the End User and Users, by signing this Agreement or the User List, acknowledges and agrees irrevocably and unconditionally that prior to obtaining the right to Use the atWORK System, it had no access to the Confidential Information or any knowledge of the Intellectual Property Rights of atWORK in the atWORK System. atWORK is entitled to sell, license, publish or otherwise transfer its Intellectual Property Rights without any restriction or limitation and without requiring any consent or cooperation from the End User.
   4. atWORK warrants that, to the best of its knowledge, the atWORK System does not infringe upon or violate any Intellectual Property Rights of any third party.
   5. The provisions of this clause shall endure indefinitely notwithstanding the termination of this Agreement.
7. breach and termination
   1. Should either of the Parties breach any stipulation contained in the Agreement, and that breach is not due to force majeure, then the suffering party may:
      1. terminate the Agreement; provided that the party to the Agreement who breached its obligations in terms thereof fails to remedy such breach within ten (10) calendar days after receiving a Notice from the other party to the Agreement, on expiry of this period; provided further that it confirms this termination, by way of a Notice to the other party, and claim all damages that it might have suffered as a result of that breach; or
      2. it may claim specific performance of the Agreement from the other party to the Agreement and all damages that it might have suffered as a result of that breach.
8. validity
   1. If any provision of this Agreement is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of this Agreement will not be affected thereby.
9. confidentiality
   1. Any Confidential Information obtained by any Party in terms of, arising from or in connection with this Agreement shall be treated and kept in confidence and as secret and confidential by the Parties.
   2. A Party receiving Confidential Information (“Recipient”) shall take all reasonable steps to keep the Confidential Information secure and will not, without the prior written consent of the Party disclosing such information (“Disclosing Party”), directly or indirectly communicate, disclose, grant access to, sell or trade (whether in writing or orally or in any other manner) Confidential Information to any other person.
   3. The Recipient will not disclose to any person other than as expressly permitted in this Agreement-
      1. that Confidential Information of the Disclosing Party has been made available to it; and
      2. that discussions or negotiations are taking place between the Parties.
   4. The Recipient shall not use (or cause or permit to be used) any Confidential Information for any purpose, including, but not limited to, any competitive or commercial purpose or for any purpose which is to the current or potential commercial, financial, or competitive disadvantage of a Disclosing Party, nor shall it make any copy of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent.  For the purposes of this Agreement, “Copy” shall mean any way of duplicating, reproducing, or recording of Confidential Information.
   5. The Recipient will not (in the absence of a pre-existing confidentiality arrangement or obligation substantially in the form of this clause), directly or indirectly, disclose Confidential Information to its directors, officers, employees and advisers of that Party and includes all persons acting for or in conjunction with that Party (hereinafter “Representatives”), unless and until:
      1. the Recipient has sent them a copy of the confidentiality undertakings and restrictions contained in this clause; and
      2. the Recipient has instructed them in writing to comply with the provisions of this clause as though they were parties hereto and they furnished written undertakings to comply with the provisions of this clause.
   6. The Recipient shall be responsible for, and shall procure, compliance with the provisions of this clause by its Representatives.
   7. The restrictions in this clause do not apply to Confidential Information:
      1. which is disclosed to those Representatives of the Recipient who have a need to know such Confidential Information for the purposes of this Agreement;
      2. which is already in the public domain, through no fault of the Recipient or its Representatives, or which is lawfully in the possession of the Recipient prior to disclosure to the Recipient in connection with its subscription for Shares (provided that the Recipient can demonstrate it was already in possession of the Confidential Information); or
      3. disclosure of which is required by law or the rules of any applicable regulatory organisation or stock exchange.
   8. On termination of this Agreement atWORK undertakes to provide all data captured by the End User from the Commencement Date to the termination date in ASCII text (plain text) format on an Excel spreadsheet against payment of the reasonable standard fees of atWORK applicable.
   9. It is recorded that the following information will, for the purpose of this Agreement, not be considered to be Confidential Information:
      1. information known to either of the Parties prior to the date that it was received from the other party; or
      2. information known to the public or generally available to the public prior to the date that it was disclosed by either of the Parties to the other; or
      3. information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the End User of such Information; or
      4. information which either of the Parties, in writing, authorizes the other to disclose.
      5. Any Confidential Information disclosed as contemplated above shall notwithstanding its disclosure, continue to remain Confidential Information and subject to the provisions contained in this Agreement.
   10. The provisions of this clause shall remain in force and effect for an in indefinite period following the termination or expiry of a Party’s obligations under this Agreement.
   11. Any termination of this Agreement will be without prejudice to any accrued rights or obligations under this clause.
10. relationship
    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 authorized thereto in writing.
11. dispute resolution
    1. Subject to Clause 13.4, if the Parties are unable to resolve any dispute arising out of or in connection with this Agreement by means of joint co-operation or discussion within 1 (One) week after a dispute arises, then the dispute will be finally settled under the Rules of Arbitration of the Arbitration Foundation of South Africa (AFSA) by 1 (One) arbitrator appointed in accordance with the said Rules, which Rules are deemed to be incorporated by reference into this clause.
    2. Unless otherwise agreed to in writing by the Parties, the arbitration shall be conducted in Pretoria, South Africa and in English.
    3. The provisions contained in this Clause 13 shall endure beyond the termination or cancellation of this Agreement without limit in time.
    4. Notwithstanding the provisions of Clause Clause 13.1, atWORK shall be entitled, at its sole and absolute election, to institute any claim for the payment under this Agreement in a court with competent jurisdiction and the End User shall be bound to such election without the right to refer such a claim to arbitration in accordance with Clause 13.1.
12. NON-SOLICITATION
    1. For the duration of this Agreement and for a period of 3 (Three) years following the date of termination of this Agreement, the End User irrevocably undertakes not to directly or indirectly without the prior written consent of atWORK -
       1. make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any person employed by atWORK with whom it has had personal contact or dealings (the “Relevant Employee”);
       2. solicit or attempt to solicit services from any Relevant Employee or entice or attempt to entice any Relevant Employee away from atWORK;
       3. have business dealings with or attempt to have business dealings with any Relevant Employee (other than pursuant to this Agreement).
       4. In the event that the End User breaches the undertaking given in Clause 14.1, it shall pay liquidated damages to atWORK, the amount of such liquidated damages being calculated in accordance with Clause 14.3.
    2. The amount of liquidated damages payable pursuant to Clause 14.2 shall be a sum equal to the gross salary of the Relevant Employee in question for the 36 (Thirty Six) month period (or, if he/she was employed for a period of less than 36 (Thirty Six) months, his/her gross salary for such lesser period) prior to the said breach of undertaking and, for the avoidance of doubt, the Parties acknowledge and agree that the liquidated damages referred to in this Clause  are reasonable and a genuine pre-estimate of the loss that atWORK may suffer as a result of the End User breaching the undertaking given in Clause 14.1.
    3. The provisions of this clause shall endure indefinitely notwithstanding the termination of this Agreement.
13. domicilium and notices
    1. The Parties hereby select for all purposes of this Agreement as their respective domicilia citandi et executandi their respective addresses recorded under their names or any such other address as the Parties may notify each other of in writing from time to time, for the delivery of all notices and/or processes thereto.
    2. Any notice addressed by any Party to the other Party shall -
       1. if delivered by hand at the address of its domicilium in terms of this clause, be deemed to have been duly received by the addressee on the date of delivery; or
       2. if posted by prepaid registered post to the addressee's domicilium in terms of this clause, be deemed to have been received by the addressee on the fifth day following the date of such posting; or
       3. if sent by e-mail to his e-mail address in terms of this clause be deemed to have been duly received by the addressee on date of successful transmission thereof.
       4. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of e-mail transmission shall be adequate written notice or communication to such Party.
14. force majeure
    1. Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves:
       1. that the failure was due to an impediment beyond its control;
       2. that it could not reasonably be expected to have taken the impediment and its effects upon the party’s ability to perform into account at the time of the conclusion of this Agreement; and
       3. that it could not reasonably have avoided or overcome the impediment or at least its effects.
    2. An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive:
       1. war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
       2. natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
       3. explosions, fires, destruction of machines, factories and any kind of installations;
       4. boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and premises and work stoppages;
       5. acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of this Agreement.
    3. For the purposes of this clause “impediment” does not include lack of authorizations, licenses, permits or approvals necessary for the performance of this Agreement and to be issued by the appropriate public authority.
    4. 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 date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than sixty (60) calendar days either of the Parties shall be entitled to terminate this Agreement.
15. entire agreement and variations
    1. This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
    2. No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
    3. Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this agreement.
16. assignment, cession and delegation
    1. the End User  shall not be entitled to assign, cede, delegate, or transfer any rights, obligations, share, or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of atWORK, which consent shall not unreasonably be withheld or delayed.
    2. atWORK shall be entitled to assign, cede, delegate and transfer all of its rights, obligations, share or interest in this Agreement to any third party without requiring the consent of the End User.  By signing this Agreement, the End User and its Users expressly consents to any future cession, assignment, delegation or transfer of the rights of atWORK to a third party without any further consent being required by the End User or the Users.
17. relaxation
    1. No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right.
18. waiver
    1. No waiver on the part of either Party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
19. severability
    1. If any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
20. drafting costs
    1. Each of the Parties shall bear its own cost incurred as a result of the negotiation, drafting and finalization of this Agreement, which shall include but not be limited to all legal fees.
21. governing law
    1. The validity and interpretation of this Agreement will be governed by the laws of the Republic of South Africa.
22. data privacy and protection
    1. To the extent that the End User will use or process any Personal Information as part of the Use of the atWORK System, the End User hereby warrants that it shall use and process such Personal Information strictly in accordance with the applicable laws.  To the extent that atWORK may have or obtain access to any Personal Information used or processed by the End User through the Use of the atWORK System, atWORK shall treat such Personal Information as strictly confidential and shall not use or process such Personal Information without compliance with applicable laws.
23. definitions
    1. The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings –