Worth.Business – Terms of Service

December 2019 | Version 1.2

1.     Introduction

These are the general terms of our relationship with you. They cover any transactions where we provide services to you. Under these terms:

we are the service provider – Blue Sky Software Solutions (Pty) Ltd (Registration Number 2017/345624/07), trading as Worth.Business and

you are the customer – someone who uses our services.

You agree to be legally bound by the terms by ordering services from us. You may not use our services if you do not agree to the terms.

2.     Agreement

2.1.   Composition. The agreement consists of these terms of service and any orders or any other specific terms applicable to the services, including our privacy policy, security policy and acceptable use policy, as updated from time to time.

2.2.   Definitions. In the agreement:

authorised user means you or a user in your employ where you are a juristic person, who has been assigned credentials;

business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised;

business hours means our normal business hours on business days;

day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;

order means a separate document or webform that contains the commercial terms of each specific transaction and incorporates these terms by reference;

sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives;

website means our website accessible at https://worthbusiness.wpengine.com;

we, us, or our means the service provider, Blue Sky Software Solutions (Pty) Ltd;

writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email; and

you, you or your means the customer who enters into an order with us.

2.3.   Interpretation. The following rules apply to the interpretation of the agreement:

reference headings – clause and subclause headings are for reference only and do not affect interpretation;

non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;

undefined words or phrases – all words or phrases that the agreement not define have their ordinary English meaning;

enactment references – references to any enactment include it as re-enacted, amended, or extended;

person references – references to a person includes a natural and juristic person;

party references – references to a party includes their successors or permitted assigns;

number of days – when any number of days is prescribed, the first day will be excluded and the last day included;

no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and

time calculations – the parties will use GMT +2 to calculate any times.

2.4.   Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in the relevant order or other specific terms.

2.5.   Conflict. If there is a conflict of meaning between these terms and any word or phrase in an order or other specific terms, the meaning in the order or specific terms will prevail in respect of the relevant services.

3.     Duration

3.1.   Commencement. These terms start whenever you accept them by:

doing so explicitly – such as by checking a checkbox saying that you do or agreeing to an order that incorporates them by reference;

using the services in any way – such as by accessing them; or

• exercising any rights granted to you under the agreement;

and continue until terminated.

3.2.   Automatic renewal. If an order involves a subscription, the agreement will continue automatically from the end of the initial term or subsequent automatic renewal period for an automatic renewal period equivalent to the initial term.

3.3.   Renewal termination. Either party may terminate the renewal before the end of the initial term or subsequent automatic renewal period by giving the other party at least 30 calendar days prior written notice.

4.     Orders

4.1.   Placing orders. You place orders with us whenever you order or start using the services through the website. These orders are offers to us to buy our services, and may be in the form of a webform that you complete when you sign up for a particular service. The specific commercial terms of the service (such as pricing or duration) will be described in the order.

4.2.   Capacity. You represent and warrant that you (and any person who places an order):

• are old enough under applicable law to enter into the agreement;

• are legally capable of concluding any transaction;

• possess the legal right, full power, and authority to enter into the agreement; and

• will submit true, accurate and correct information to us.

4.3.   Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.

4.4.   Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.

4.5.   Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.

5.     Our services

5.1.   Our valuation service tool. We provide an online business valuation tool through the website. This is a software as a service, and is provided to you via your internet browser. We will notify you of the URL through which you or your authorized users can access the software as a service from time to time.

5.2.   Grant of right. We grant you a right to use the services subject to the following limitations:

duration of agreement – you may only use the services for the duration of the agreement;

limited to terms – you may only use the services according to these terms;

non-exclusive – we may allow anyone else to use the services;

non-transferable – you may not transfer the right to anyone else;

specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time; and

other limitations – any other limitations agreed to in writing.

5.3.   Access. We will notify you of the software as a service URL through which your authorized users can access the software as a service in writing from time to time.

5.4.   Authorised use. We will provide our software as a service to any of your authorized users directly who have agreed to the end-user licence or other relevant agreement through the software as a service on a non-exclusive basis.

5.5.   Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance, or unforeseen outages.

5.6.   Maintenance. We will perform scheduled maintenance on the software as a service outside of business hours on business days or outside of business days from time to time. Maintenance may interrupt the software as a service. We may need to perform emergency maintenance in certain circumstances.

5.7.   Advertising. We may display advertising or links to other websites on any of the pages of our website. Unless otherwise expressly indicated, the advertising or links displayed are controlled by our third-party partners, and we are not responsible or liable to you for the nature, form, accuracy or destination of any advertising content or links that appears in this way. Any advertisement or link is for information purposes only, and does not imply any endorsement of the referenced goods, services or websites, or the parties who offer or control them.

5.8.   Monitoring. You agree that we may monitor how you use our website or services, for security and stability purposes.

5.9.   Transmission. You acknowledge that the technical processing and transmission of the online services, including your uploaded content, may involve transmissions over various networks, or changes to conform and adapt to technical requirements of any associated connecting networks or devices.

5.10. Our records. You agree that our records are undisputed evidence of the services provided to you.

6.     Your responsibilities</>

6.1.   Acceptable use policy. You represent and warrant that you have read and will adhere to (and will ensure that your personnel, if applicable, will adhere to) our acceptable use policy, as updated from time to time, when using the website or our services.

6.2.   Credentials. You will be required to select your credentials when registering which will enable you to sign into your account on our website. If you are a juristic person, you will have to designate a specific authorised user. Only you may use your credentials. We do not permit multiple people to share credentials. Only authorised users may access the software as a service by using their credentials.

6.3.   Access conditions. We will only provide online service access to you or your authorised user (where you are a juristic person) on the conditions that you or they:

• are not a direct competitor of ours, unless otherwise agreed to between the parties;

• will accurately provide us with any information that we ask for on registration or account creation;

• will not use bots or other automated methods to register authorised user accounts;

• will only create one authorised user account;

• will create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;

• will look after their credentials and not give them to anyone else, and immediately notify us in writing of any lost credentials;

• will ensure that any authorised user who is no longer authorised to use the service do not use the service;

• will be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;

• will not to provide access to any other person;

• will secure all data under their control and notify us of any known breach of our privacy policy;

• will not use the services for monitoring its performance, availability or functionality, or for any other benchmarking or competitive purposes, unless otherwise agreed between the parties in writing;

• will not to interfere with the functionality or proper working of the website;

• will not use the service for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law.

• will not interfere with or introduce any malicious software into the services or otherwise misuse them;

• will have and be responsible for the necessary infrastructure, equipment, and software to access the online services; and

• will abide by the agreement and any policies that we communicate to them in writing.

6.4.   Your authorised user instructions. Each authorised user is responsible and liable for activities that occur under their account. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has defrauded both of us, unless you have notified us in writing prior to you acting on a fraudulent instruction. We are not liable for any loss or damage suffered by you attributable to an authorised user’s failure to maintain the confidentiality of their credentials.

6.5.   Your testimonials. We may ask you to complete a customer testimonial or endorsement for our services. If you do so, you agree that we may display this testimonial and your name on the website. If you would like us to remove your testimonial so displayed, please let us know via email at [email protected]

7.     Trial access

7.1.   Free trial. We may offer a free trial for any of our services under an order. In such instances, these terms (and any specific terms agreed to in the order) will apply to you for the duration of the free trial. These terms will apply to you from the date that you access the free trial, until the end date of the free trial as described in the order or as otherwise communicated by us to you.

7.2.   Your data. We will retain your data for 14 calendar days after the end of your free trial, after which we may delete your data. You can access your data after your free trial by placing an order.

8.     Your data

8.1.   Definition. Your data is any data belonging to you or your customer that:

• you or your customer (or any third party on your behalf) provide to us; or

• we generate, process, or supply to you or your customer in providing the services;

but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.

8.2.   You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.

8.3.   We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.

8.4.   Responsibility. We take the protection of your data very seriously and will always do everything in our power to protect it. We will

• comply with all relevant laws that affect your data, including data protection, retention, and destruction laws;

• not sell, dispose of, or encumber any of your data or try to do any of those things;

• be able to identify any of your data separately from any other data under our control; and

• not disclose any personal information from your data, other than in terms of the agreement.

8.5.   Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation under contract who help with parts of our business operations, including fraud prevention, bill collection, marketing, technology services. We may subcontract work involving your data, provided that we:

• do so only through a written agreement with the subcontractor which dictate that these service providers only use your information in connection with the services they perform for us and not for their own benefit; and

• ensure that our service providers are bound to the necessary confidentiality undertakings.

8.6.   Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.

9.     Confidential information

9.1.   Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.

9.2.   Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

• protect the other party’s interests;

• only use it to comply with their responsibilities under the agreement;

• only give it to their employees or agents that need it (and only as much as they need);

• use reasonable security procedures to make sure their employees or agents keep it confidential;

• get promises of confidentiality from those employees or agents who need access to the information;

• not reveal the information to anyone else; and

• not use it for any purpose other than under this agreement.

9.3.   End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:

• the other party agrees that they may destroy or retain it instead; or

• it is lawfully in the public domain;

• someone else who is allowed to reveal it gives it to them;

• someone gives it to them to comply with a court order or other legal duty.

9.4.   Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees.

9.5.   Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

10.    Intellectual property

10.1.   Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.

10.2.   Our intellectual property. Our intellectual property is anything that we have or acquire rights, title or interest in and may use to perform our obligations under the agreement.

10.3.   Retention of rights. We own all rights, title and interest in our intellectual property and you may not use our intellectual property without our permission. You do not acquire any rights, title or interest in our intellectual property if we use it to provide services to you.

10.4.   Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

10.5.   Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.

10.6.   Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.

11.    Non-solicitation

You will not contract with any of our personnel, other than through us, who were involved in providing services under an order for the duration of that order or for 12 calendar months after its termination.

12.    Fees and payment

12.1.   Payment. You will pay us the fees on the due date in the manner agreed between the parties in writing. You may not withhold payment of any amount due to us for any reason.

12.2.   Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.

12.3.   Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:

• 2% above the prime (or prime lending) rate; or

• 15%.

Interest will be payable on a claim for damages from when the damages were suffered.

12.4.   Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.

12.5.   Currency. If you order the services in South Africa, we will charge you in ZAR. If you order the services outside of South Africa, we will charge you in USD.

12.6.   Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.

12.7.   Tax. All fees exclude any tax (unless indicated otherwise), which you will pay where applicable in addition to the fees.

12.8.   Payment profile. We may provide any registered credit bureau with information about your payment of amounts.

13.    Our warranties

13.1.   Service warranties. We warrant that we will:

• maintain the necessary support system to provide the services;

• use reasonable efforts consistent with prevailing industry standards to maintain the services; and

• provide the services in accordance with South African law.

13.2.   General warranties. We warrant further that we:

• have the legal right and authority to perform our obligations under the agreement; and

• will not knowingly introduce any malicious software into your systems.

14.    Disclaimer of warranties

14.1.   Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause.

14.2.   Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

15.    Your warranties

15.1.   Agreement warranties. You warrant that:

• you have all required legal capacity, authority and permission to enter into this agreement, including where you are entering this agreement on behalf of a juristic person;

• no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and

• you are not breaching of any other agreement by entering into the agreement.

15.2.   Indemnity. You indemnify us against any claim for damages by any third party resulting from your use of the services, or your breach of any of your warranties under this agreement or our related policies, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

16.    Limitation of liability

16.1.   Own risk. We provide the website and services “as is” and on an “as available” basis. We do not give any express or implied warranty or make any other promise about this website. For example, we do not warrant that it is good quality, fit for any particular purpose, accurate, complete, up-to-date, legally effective or secure. We also do not warrant that it is free of latent defects, errors, malicious software or infringing content, or that you will have quiet or uninterrupted use of it.

16.2.   Indemnity. You indemnify (or promise to protect) us against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) related to your use of this website or your breach of any of your obligations under the Terms of Use or Terms of Service, including where such claims are raised against us by a third party.

16.3.   Faults. We will do our best to fix any fault in this website as soon as reasonably practical after we find out about it. This is the limit of our responsibility and liability for any fault in the website.

16.4.   Direct damages limited. To the extent allowed by applicable law, we are only liable to you for any direct damages (whether in contract, delict or any other legal theory) that the services may cause up to the total amount of fees (relating to the claim) that you have already paid us for them over the 1-month period immediately preceding the claim. Where you have paid fees in advance of a subscription period, this limitation will be 1 month’s pro-rata share of such advance fees.

16.5.   Indirect damages. We will never be responsible for any indirect or consequential damages or losses, even if we should have foreseen them. These may include any loss of profit, loss of goodwill, loss of use or damages related to lost or damaged data.

16.6.   Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

16.7.   Other websites. We are not responsible for anyone else’s website.

17.    Breach and suspension

17.1.   Breach. If either party

• does not fix a breach within seven days of receiving written notice from the other party;

• breaches the agreement materially twice or more in six months;

• is bankrupt or has some legal disability;

• takes steps to or is closed down (such as becoming insolvent or entering sequestration);

• makes any settlement or arrangement with their creditors; or

• fails to pay a court order against themselves for a significant amount within 21 days;

then the other party may:

• make the party comply with the agreement; or

• immediately cancel the agreement in writing and claim fees already due.

17.2.   Immediate suspension. We may immediately suspend your right to use any of the services in any of the following circumstances:

• you fail to pay any fees due to us in terms of this agreement on their due date;

• you breach any of your obligations under the agreement, including our acceptable use policy;

• you attempt a denial of service attack on any of the services;

• you seek to hack or break any security mechanism on any of the services or access data outside of that which belongs to your organisation;

• we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;

• you otherwise use the services in a way that disrupts or threatens the services;

• we determine, in our sole discretion, that there is evidence of fraud with respect to your account;

• we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of us or any third party; or

• we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or infeasible for any legal or regulatory reason; or

• we determine, in our sole discretion, that you have breached any of our existing or future intellectual property rights, whether they relate to the services provided under this agreement or not;

• for any other reason that we determine is reasonable within our exclusive discretion.

17.3.   Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

18.    Termination

18.1.   Termination for good cause. We may terminate the agreement immediately if we (in our sole discretion):

• discontinue or stop providing the services;

• believe providing the services could burden or pose a risk to us;

• have to terminate to comply with a law;

• believe we are infringing on a copyright or patent;

• determine that providing the services has become impractical.

If we need to terminate, we will give you as much notice as reasonably possible in writing.

18.2.   Termination for convenience. You may terminate the agreement or a specific order by giving 32 calendar days notice by using the provided functionality on the website. Where you are a consumer as defined under the Consumer Protection Act 68 of 2008 (excluding juristic persons):

• you may do this by giving us 20 business days notice; and

• if you have purchased an annual subscription, we will refund you any fees that you have paid to us for the remaining service period, less a reasonable cancellation fee. This cancellation fee will be calculated taking into consideration the discount in price between our monthly subscription pricing and our annual subscription pricing, plus an administration fee of half a month.

18.3.   Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.

19.    Effect of termination

19.1.   Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.

19.2.   Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.

19.3.   No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.

19.4.   No refunds. We provide our services through a pre-paid non-refundable subscription model. Unless otherwise specified in the agreement or required by law, we will not provide any refunds, partial billing or credit in respect of any terminated agreement or order. We may, in our sole discretion, provide discounts, refunds or other types of compensation where we feel that it is reasonable in a particular circumstance. The circumstances that we feel warrants a discount, refund or other type of compensation does not oblige us to offer you compensation in any other circumstances.

20.    General

20.1.   Entire agreement. The agreement is the entire agreement between the parties on the subject.

20.2.   Relationship. The agreement does not create an employment or partnership relationship between the parties.

20.3.   Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

20.4.   Beyond our control. Neither party is responsible for breach of the agreement caused by circumstances beyond our control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days. A party affected by such circumstances will notify the other party immediately of the likely duration of such circumstances, and will take all reasonable steps to mitigate the effects of such circumstances on their obligations under the agreement.

20.5.   Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails, as described below.

20.6.   Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).

20.7.   Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

20.8.   Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

20.9.   Changes. We may change these terms of service at any time by placing a notice on this website, updating this webpage, or notifying you by email. Those changes will apply to future service orders (including renewals and automatic renewals of existing orders). If you do not agree with the changes, you must stop using the website or the services. If you order (or renew) services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

20.10. Waiver. Any favour we may allow you will not affect any of your obligations to us, or any of our rights against you.

20.11. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

20.12. Governing law. South African law governs this agreement.

20.13. Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.