TERMS AND CONDITIONS OF THIS ELECTRONIC SERVICE LEVEL AGREEMENT
DEFINITIONS AND INTERPRETATION
1.1 Unless out of context:
“Agreement” means this agreement, as amended from time to time, and includes its Annexures, which form part of it;
“Administrator” means a person nominated by the Client to perform functions on behalf of the Client;
“Authoriser” means the person authorised to process Transactions, e.g. bookings, cash collections or credits for a Client;
“Business Day” means any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
“Client” means the Client whose profile has been utilised for the enrolment and whose details are set out above, and any New Client;
“Customer” means the Client’s customer;
"Customers Bank” means a bank or other financial institution with which the Customer conducts bank accounts used to process Transactions;
“EFT” means an Electronic Funds Transfer;
“ESLA” means this Electronic Service Level Agreement together with all schedules and Addenda;
“Hacking” means the illegal accessing of the Client’s or MTS’s computer systems, through gross negligence of MTS to destroy, disrupt or carry out illegal activities;
"Instruction" means an electronic instruction received by MTS for the purposes of this ESLA;
“New Client” means a Client who becomes a party to this ESLA after signature with the consent of the Client and MTS;
"Nominated Account” means the nominated bank account or account nominated by the Client for purposes of clause 6;
"Online Diary" means the electronic platform made available to Clients for the purposes of accessing the services.
“Online Booking” means an Online Bookings Service as set out in clause 3;
“Operating Manual” means the operating manual that sets out details and procedures for use of the Services;
“Party” means MTS or the Client;
"Password" means the alphanumeric characters used by each Client to access the Services;
“Services” means the services available in terms of this ESLA;
"Transaction" means any transaction performed as a result of an Instruction;
1.2 Unless out of context, an expression which denotes:
1.2.1 any gender includes the other genders;
1.2.2 a natural person includes an artificial person and vice versa;
1.2.3 any word and expression defined in any clause shall, unless the application of the word or expression is specifically limited to the clause in question, bear the meaning ascribed to the word or expression throughout this Agreement;
1.2.3 the singular includes the plural and vice versa.
2. COMMENCEMENT OF THE ESLA
2.1 The true version of the ESLA shall be the one signed by the client and held by MTS.
2.2 This ESLA shall commence upon activation of the clients Online Diary by MTS, subject to;
2.2.1 The client shall access the services on providing MTS with all information and documents to satisfy MTS’s legal requirements regarding any Authoriser and Administrator and any other relevant persons authorised to initiate a Transaction.
2.2.2 The Client shall appoint an Administrator to use the Services.
3 ONLINE BOOKING SERVICE
The Client utilise the Online Bookings in accordance with the requirements of the Operating Manual.
4 SECURITY MEASURES
4.1 The Client agrees to comply with all security procedures that are put in place by MTS and communicated to the Client.
4.2 Any loss suffered by the Client as a result of or arising out of failure to comply with clause 4.1 is for the Client’s account.
5 OPERATING MANUAL
5.1 The Services are provided to the Client in terms of the Operating Manual.
5.2 All changes to the Operating Manual will be provided to the Client (see Clause 13).
5.3 If there is any conflict between this ESLA and the Operating Manual, this ESLA prevails.
6 CHARGES AND PAYMENTS
6.1 MTS will notify the Client of the fees for providing the Services in advance. The fees may be varied in terms of clause 15.
6.2 Transaction fees are payable in arrears, and Access fees are payable in advance. MTS will debit the fees upon transferring the Client’s funds into his Nominated Account.
6.3 If there are any changes to any law that increases MTS’s costs, then MTS is entitled to charge the Client any additional amounts to compensate MTS for the extra cost.
7 PROCESSING OF TRANSACTIONS
7.1 The Client is responsible for all actions of any person acting or purporting to act on behalf of the Client.
7.2 MTS need not enquire as to the authority of any person who accesses the facility or initiates a Transaction, provided that use is made of a valid Password, Username and/or Security Certificate or other security measures applicable.
7.3 MTS shall apply its standard security procedures to verify any Password and Username and security measures put in place by MTS from time to time.
7.4 MTS will not process a Transaction unless there is positive confirmation of the Customer’s payment.
7.5 All Services are conducted in accordance with all relevant laws.
7.6 A statement of Transactions provided by an employee of MTS shall be sufficient proof of such Transactions.
8 PROPRIETARY RIGHTS AND CONFIDENTIALITY
8.1 All copyright and ownership of systems provided by MTS remain vested in MTS and may not be copied, reproduced, varied, modified or converted in any way by anyone else.
8.2 The Parties will not disclose information of a confidential nature relating to the Services to any other person, except that a party may disclose information which would otherwise be confidential if: required to do so by law; disclosed to the professional advisors of a party; that has come into the public domain through no fault of that party; or if the other party has given prior written approval for the disclosure.
10 WARRANTIES AND INDEMNITIES
10.1 The Clients warrant that:
10.1.1 the information which it has given and will give to MTS is correct;
10.1.2 they, the Administrator, and Authoriser have the authority to give Instructions;
10.1.3 they have read and understood, and will abide by the Operating Manual.
11 LIABILITY AND INDEMNITY
11.1 MTS has no liability for any loss, expense, damage or cost incurred by, or any claim made against, any Client arising directly or indirectly out of this ESLA, the Services or the use or operation of the Services unless arising directly from a wilful or grossly negligent act of MTS or its employees or as a result of any fraudulent act by MTS or its employees. MTS's liability is limited to the amount of the direct money loss that the Client proves that it has sustained.
11.2 The Client indemnifies MTS and as a stipulation for their benefit likewise indemnifies the Third Party’s Bank and undertakes to hold each of them harmless against any direct money loss they may suffer or become liable for arising from non-compliance by the Client with this ESLA or the Operating Manual, computer error by the Client or unauthorized use of the Services by the Client or any other person authorized or purporting to act on behalf of the Client, resulting in incorrect, unauthorized wrongful Transactions;
11.3 The Client acknowledges that (notwithstanding any contradicting statements in this ESLA) independent laws, rules, and/or regulations may prevent or delay the processing of any specific request or Instruction; and the Client will hold MTS harmless for non-receipt of funds by any recipient, where the transaction is delayed or blocked, and any loss/profit arising from each delay or cancellation will be for the Client’s account in terms of this ESLA.
11.4 The Parties are not liable to each other for any indirect or consequential loss or damage, including loss of profit, of revenue, of anticipated savings, of business transactions, of goodwill or of other contracts whether arising from negligence or breach of contract.
12 IMPOSSIBILITY TO PERFORM
12.1 If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this ESLA from any cause beyond the reasonable control of that Party, the Party affected will be relieved of its obligations during the period that such event and its consequences continue but only to the extent prevented. Written notice of any such inability to perform must be given by the affected Party within 48 (forty-eight) hours of the occurrence (provided that the obligation to give notice will be suspended to the extent necessitated by such event).
12.2 A Party invoking clause 14.1 must use reasonable endeavors to bring to an end the circumstances giving rise to the inability to perform, and on termination of the circumstances must immediately give written notice to the other Party.
13.1 MTS may, in its reasonable discretion, amend the Services, the Operating Manual, MTS’s fees or MTS's hardware or software requirements. Such amendments shall be notified to the Client electronically not less than 30 (thirty) days before such amendments become effective.
13.2 The Client will be deemed to have accepted any such amendment, unless the Client gives notice of termination of the ESLA in terms of clause 15.1 within such 30 (thirty) day period.
Without prejudice to any other right, any party may terminate the ESLA if any other party commits a breach of any of the terms and conditions and fails to rectify such breach within a period of 14(fourteen) calendar days after receipt of written notice requiring it to do so.
15 TERMINATION OF THE ESLA
15.1 The Client may terminate this ESLA at any time by giving MTS 30 (thirty) days’ written notice of termination.
15.2 MTS may terminate any Service by providing any Client with 30 (thirty) days’ written notice of termination of such Service. The ESLA, excluding the Service in question, will continue in full force save that the charges will exclude any charges attributable to the Service which has been terminated.
15.3 Notice of termination by any Client must be accompanied by written notification to MTS detailing those transactions that MTS will be entitled to continue to process and pay and collect arising from Instructions which were received by MTS prior to termination.
16 DISPUTE RESOLUTION
16.1 Any matter, disagreement or dispute arising between the Parties in connection with this ESLA which is not resolved between them shall at the instance of either MTS or the Client be referred to auditors of MTS for investigation and a decision. The decision must be conveyed to the Parties in writing. If written objection to the decision is not received by the other Party/ies to the dispute within 30 (thirty) calendar days of the date of receipt of such notice, the decision of the auditors will be final.
16.2 If the objection is lodged within 30 (thirty) calendar days, the disagreement or the dispute will be referred to a court of law for adjudication or to an independent expert appointed jointly by the Parties. If it is a legal matter, the expert must be a practicing advocate or attorney of at least 10 (ten) years standing, or if it is an accounting matter, a practising chartered accountant of at least 10 (ten) years standing.
16.3 The person so appointed shall act as an expert and not as an arbitrator, and that person’s decision is final.
16.4 Nothing prevents the matter, disagreement or dispute being referred by agreement to arbitration or to court or to any other form of dispute resolution.
17 GOVERNING LAW
The ESLA is governed by the laws of the country where MTS has its registered place of business, as outlined on page1 of this ESLA. The Parties submit to the exclusive jurisdiction of the High Court or the Supreme Court or equivalent court of the relevant country in respect of any matter arising in connection with the Service.
18 NO ASSIGNMENT
No right or interest under this ESLA may be ceded, assigned, transferred, or sub-licensed by the Client without the prior written consent of MTS, which will not be unreasonably withheld or delayed.
19.1 For purposes of communication and correspondence, any Party may change its address as set out on page1 of this ESLA to any other address (not a box number) by giving written notice of change of the address to the other Party.
19.2 All written communications by mail must be sent to the address referred to above and if sent by pre-paid registered post, will be deemed to have been received within10 (ten) Business Days after the date of posting unless the contrary is proved. If delivered by hand, the written communication shall be deemed to have been received on the day of delivery.
19.3 Electronic instructions (see clause 13) will be sent to the email address of the registered administrator(s).
20.1 No party may rely on any warranty or representation not expressly set out in this ESLA.
20.2 This ESLA contains all of the provisions agreed on by the Parties with regard to the Service.
20.3 No variation or cancellation of this ESLA and no waiver of any right under this ESLA will be effective unless in writing and signed by the Parties.
20.4 No relaxation by a Party of any of its rights in terms of this ESLA will prejudice or be a waiver of its rights (unless it is a written waiver).
21 SCOPE OF ESLA
21.1 This ESLA replaces any prior ESLA’s between the Parties relating to the Services set out in this ESLA.
21.2 If there is any conflict between an Addendum and this ESLA, this ESLA will prevail.