Techfolio Terms of Use

1.     GENERAL

All services supplied by Ordo Data (Pty) Limited (“Techfolio”) shall be made and supplied on the following terms and conditions. Similarly the use of Techfolio’s Website will be governed by these terms and conditions.

2.     INTERPRETATION

In this agreement unless the context indicates a contrary intention -

2.1   clause headings are for convenience only and shall not be used in its interpretation;

2.2   an expression which denotes any gender includes the other genders and a natural person includes an artificial person and vice versa;

2.3   the singular includes the plural and vice versa.

2.4   Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:

2.4.1        “Client” the Party accessing the Website and/or receiving or to receive services from Techfolio;

2.4.2        “Techfolio’s Associates” Techfolio’s officers, servants, agents or contractors or other persons in respect of whose actions Techfolio may be held to be vicariously liable;

2.4.3       “Parties” Techfolio and the Client;

2.4.4        “Services” , inter alia, online ranking services more fully described in clause 5;

2.4.5       “Website” means http://techfolio.com

2.5   Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

2.6   Unless inconsistent with the context or save where the contrary is expressly indicated:

2.6.1    if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement;


2.6.2    a reference to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "Business Day" shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to "business hours" shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any Business Day. Any reference to time shall be based upon South African Standard Time;

2.6.3    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;


2.6.4    in the event that the day for payment of any amount due in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for payment shall be the subsequent Business Day;


2.6.5    in the event that the day for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;


2.6.6    any reference in this Agreement to this Agreement or to any other Agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other Agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented;


2.6.7    no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a party to this Agreement;


2.6.8    a reference to a Party includes that Party’s Permitted Successors.


2.7   The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.

2.8   Where in this Agreement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.

2.9   
The use of the word "including" followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.

2.10  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.


2.11  The appendices and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such appendices and schedules.

3.     INTRODUCTION

3.1   This Agreement governs all and any access to the Website, and any Services provided by Techfolio. The operation of these terms and conditions may only be amended by Techfolio in a subsequent agreement entered into and signed by both Parties.

3.2   
By accepting and/or receiving the Services and/or using the Website, the Client agrees to be bound by this Agreement.

4.     APPOINTMENT AND DURATION

4.1   This Agreement commences once there has been access to the Website or engagement between the Techfolio and the Client and governs the Services, use of the Website and matters ancillary to the Services and Website usage.

4.2   
Clauses 6, 7 and 8 as well as such other clauses which are intended to survive termination as set out below, shall survive termination of this agreement for any reason.

5.     THE SERVICES

5.1   Techfolio offers inter alia, the Services.

5.2   The Services are not intended to be used as the sole basis for any business decision, and are based upon data which is provided by you, the accuracy and/or completeness of which would not be possible and/or economically viable for Techfolio to guarantee. The Services also involve models and techniques based on statistical analysis, probability and predictive behaviour. Techfolio is therefore not able to accept any liability, for:

5.2.1    any inaccuracy, incompleteness or other error in the Services and/or the information which arises as a result of data provided to Techfolio by you or any third party;

5.2.2    any failure of the Services to achieve any particular result for the Client.

5.3   The Parties expressly record that each instance of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Techfolio to render all such Services as a single, indivisible service.

5.4   You acknowledge by rendering the Service Techfolio will send you communication from time to time and you consent unequivocally to receiving communication from Techfolio.

6.     CONFIDENTIALITY

6.1   Subject to clause 6.2, both Parties shall at all times treat all information in connection with and/or relating to the other Party, its business and all matters incidental thereto and which was if in writing, marked 'confidential' or similarly; and/or if disclosed orally, was confirmed at the time of such disclosure as constituting confidential information and was confirmed in writing within 14 days as constituting confidential information, (“the Confidential Information”), as strictly confidential and shall not, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of such other Party) disclose such Confidential Information to any Party, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.


6.2   Each Party may disclose Confidential Information to its officers, employees and sub contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof. Each Party shall inform any officer, employee or sub contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Agreement), on the basis that the disclosing Party is responsible for any disclosure, in breach of this 6.2, by the person to whom it is disclosed.

6.3   Notwithstanding the stipulations of clause 6.1, Confidential Information shall not include, and the provisions of clause 6.1 shall not apply to a Party in connection with, any information which:

6.3.1    
is or becomes generally available to the public other than as a result of disclosure by such Party in violation of this clause 6;

6.3.2    is or was independently developed by such Party or on its behalf by persons having no access to such information;


6.3.3    was in such Party’s possession before such information was disclosed to it in terms of and/or pursuant to this Agreement;

6.3.4    
is required to be given, made or published by law or under the rules and regulations of any relevant Stock Exchange or any applicable regulatory authority, in which case, the Party liable to so give, make or publish same shall give the other Party reasonable written notice thereof, along with drafts or copies thereof, as soon as is reasonably practicable, and, in the case of any disclosure required in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (as amended) (“the PAI Act”), the Party liable to make such disclosure shall, insofar as it shall be able, apply the principles of Chapter 4 of the PAI Act in order to avoid and/or limit the extent of any such disclosure; and


6.3.5    is required to be disclosed by either Party to any provider of finance (“the Bank”) in order for the Bank to take informed decisions regarding Techfolio, provided that such Party shall use its reasonable endeavours to procure that the Bank shall keep such information confidential.

7.     LIABILITY

Disclaimers And Limitation Of Liability

7.1   To the fullest extent permissible by law, Techfolio disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.

7.2   
The Client agrees that Techfolio is unable to, and is not required to guarantee a particular result or set of results.

7.3   The Client agrees that neither Techfolio nor Techfolio's Associates shall be liable in respect of any loss, damage or damages however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.

7.4   Techfolio's liability to the Client pursuant to the provisions of this agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.

8.     INDEMNITY

8.1   
The Client hereby indemnifies Techfolio and Techfolio's Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, wilful misconduct and/or gross negligence.

8.2   The Client indemnifies and shall keep Techfolio indemnified against any claim for infringement of intellectual property rights in connection with any information supplied by the Client to Techfolio and against any and all costs, expenses and damages which Techfolio may incur or become liable for as a result of such infringement.

8.3   Techfolio shall give the Client prompt notice in writing of any claim being made or action threatened or brought against Techfolio and will permit the Client, at the Client’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.

9.     FORCE MAJEURE

9.1   If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.


9.2   Any Party invoking force majeure shall, upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.

10.   ASSIGNMENT

Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement except with the prior written consent of the other Parties.

11.   THE WEB SITE

11.1  Usage

11.1.1  The Techfolio Website is the registered property of Techfolio.

11.1.2  Any persons accessing and/or using the Techfolio Website for any reason whatsoever subjects themselves to and agrees to the terms and conditions and privacy policy of Techfolio when accessing the Website as set out below.

11.1.3  Unless otherwise specified the Website is only intended to provide the user with information regarding the Services.

11.1.4  Techfolio expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in the Website without prior notice.

11.1.5  Nothing on the Website shall be construed as an offer by Techfolio to you, the user, but merely an invitation to do business.

11.1.6  You may send content and other communications to and/or via this Website provided that the content is not illegal, obscene, objectionable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a communication. Techfolio reserves the right to remove or edit such content in its sole discretion.

11.1.7  You hereby represent and warrant that you own or otherwise control all of the rights to the content that you post on this Website; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you indemnify Techfolio or its affiliates from all and any claims resulting from content you supply to Techfolio. Techfolio shall not be held responsible or liable for any content posted on the Techfolio Websites.

11.2  Intellectual Property

11.2.1  Copyright
 All content on the Website (unless explicitly stated), including but not limited to, text, graphics, logos, button icons, images, clips, digital downloads, data compilations, and software, is the property of Techfolio or licensed to Techfolio and as such, is protected from infringement by domestic and international laws, legislation and treaties. Techfolio expressly reserves all rights pertaining to such content.

11.2.2  Copyright Complaints
 Techfolio and its Affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, an infringement of any intellectual property right, please notify us by e-mail or post at the address below.

11.2.3  Trademarks And Other Intellectual Property
 All content, trademarks and data on this web site, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or are licensed to Techfolio, and as such are protected from infringement by domestic and international laws, legislation and treaties.

11.2.4  "Techfolio" and other marks indicated on the Techfolio Websites are the trademarks or trade dress of Techfolio. These and other Techfolio graphics, logos, page headers, button icons, scripts, product and service names are trademarks or trade dress of Techfolio.

11.2.5  Techfolio trademarks and trade dress may not be used in connection with any product or service without the written consent of Techfolio.

11.2.6  Techfolio trademarks and trade dress may not be used in any manner that is likely to cause confusion amongst its Clients, or in any manner that disparages, prejudices or discredits Techfolio.

11.2.7  All other trademarks not owned by Techfolio that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Techfolio.

11.3  Licenses And Web Site Access

11.3.1  Techfolio hereby grants you a limited license to access and make personal use of the Website provided that in making use of the Website you do not download any content, other than for page caching purposes, except where the facility to download is expressly provided or express written consent to do so is otherwise given by Techfolio. You are expressly prohibited from modifying any portion of this Website, whether in part or whole, except with the express written consent of Techfolio.

11.3.2  This license does not include any right of resale or commercial use of this Website or its contents. For the purposes of this clause 14, any collection and/or use of any listings and/or descriptions; any derivative use of this Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools for any commercial purpose is expressly prohibited unless stated otherwise.

11.3.3  It is expressly prohibited to frame or utilize framing techniques to enclose and/or mask any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Techfolio and/or our affiliates without its express written consent.

11.3.4  It is expressly prohibited to use any meta tags or any other "hidden text" utilizing Techfolio's name or trademarks without the express written consent of Techfolio.

11.3.5  Any unauthorized use of this Website, its content or applications terminates the permission or license granted by Techfolio. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Techfolio provided the link does not portray Techfolio, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner.

11.3.6  You acknowledge that any unauthorized use of the Website will cause Techfolio damage (of whatsoever nature) and Techfolio reserves the right to institute legal proceedings to recover the damages caused by your conduct.

11.3.7  You may not use any Techfolio logo or other proprietary graphic, trademark, or material as part of the link without express written permission from Techfolio.

11.4  Disclosures Required By Section 43 Of The South African Electronic Communications And Transactions Act (ECTA)

11.4.1  The full name and legal status of the Website owner is: Ordo Data (Pty) Limited a private company to be registered in South Africa.

11.4.2  The full address of the Website owner is 12 Greyville Street, Kyalami Estate, Johannesburg.

11.4.3  Directors: Paul Slade, Lawrence Cawood and Sven Laurencik

11.4.4  Physical address for receipt of legal service: 12 Greyville Street, Kyalami Estate, Johannesburg

11.5  Disclaimer Of Warranties And Limitation Of Liability

Subject to the provisions of sections 43(5) and 43(6) of the ECTA, Techfolio shall not be liable for any damage, loss or liability of whatsoever nature arising from the use or inability to use this web site or the services or content provided from and through this Website. Furthermore, Techfolio makes no representations or warranties, implied or otherwise, that, amongst others, the content and technology available from this Website are free from errors or omissions or that the service will be 100% uninterrupted and error free.

12.   BREACH

12.1  Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within fourteen days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to -


12.1.1  cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or


12.1.2  claim specific performance of all of the Offending Party’s obligations whether or not due for performance,


12.1.3  in either event without prejudice to the Aggrieved Party’s right to claim damages.

12.2  Either Party shall be entitled to summarily terminate this Agreement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of this Agreement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.

13.   GOVERNING LAW

These terms and conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa.

14.   ARBITRATION

Any disputes arising from or in connection with this agreement shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.

15.   SEVERABILITY

If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.

16.   DOMICILIUM AND NOTICES

16.1  The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:

16.1.1     Techfolio – 12 Greyville Street, Kyalami Estate, Johannesburg.

16.1.2     The Client - Registered head office or the place of business.

16.2  Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.

16.3  Any notice given by either party to the other (“the Addressee”) which:

16.3.1     is 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;

16.3.2     is posted by prepaid registered post to 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 on the fourth (4th) day after the date of posting.

16.3.3     Notwithstanding anything to the contrary herein contained 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 domicilium citandi et executandi.

17.   GENERAL

17.1  This agreement will constitute the sole agreement between the parties and shall supersede all other agreements and/or representations whether written, oral and/or implied between the parties.

17.2  Neither party shall be bound by any express or implied term, representation, promise or the like not recorded herein.  For purposes hereof a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.

17.3  No addition to, variation, or agreed cancellation of this agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of the parties.  For purposes hereof “in writing” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.

17.4  No indulgence which either party (“the grantor”) may grant to the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.

17.5  Nothing in this agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.

 

18.   ACCEPTANCE BY THE CLIENT OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH Techfolio FOR THE RECEIPT OF ANY SERVICES OR BY THE USE OF THE WEBSITE. EVERY INSTANCE OF THE SERVICES AND USE OF THE WEBSITE SHALL BE SUBJECT TO THE ABOVE TERMS AND CONDITIONS.