Terms & Conditions

1. APPLICATION OF TERMS

1.1. These Terms apply to your use of the Service (as defined below). By clicking “I agree” and/or accessing and using the Service:
1.1.1. you agree to these Terms; and,
1.1.2. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2. If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.

2. CHANGES

2.1. We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2. These Terms were last updated on 1 September 2020.

3. INTERPRETATION

In these Terms:
3.1. Authorised Users means your personnel who are authorised to access and use the Service on your behalf in accordance with clause 5.3.
3.2. Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Software. Your Confidential Information includes the Data.
3.3. Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.
3.4. Fees means the applicable fees set out on our pricing page on the Website, or as agreed otherwise in writing between you and us, as may be updated from time to time.
3.5. Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care or a lack of funds for any reason.
3.6. Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute or common law relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
3.7. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
3.8. party includes that party’s permitted assigns.
3.9. person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
3.10. personal information means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person.
3.11. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
3.12. Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
3.13. Software means the software owned by us (and our licensors) that is used to provide the Service.
3.14. Start Date means the date that you click “I agree” and/or access and use the Service, whichever comes first.
3.15. Terms means these terms titled SaaS Terms of Use.
3.16. Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.
3.17. We, us or our means Magnetic Software (Proprietary) Limited, with company registration number 2012/029845/07.
3.18. Website means the internet site at https://www.timeboost.io , or such other site notified to you by us.
3.19. You or your means you or, if clause 1.1.2 applies, both you and the other person on whose behalf you are acting.
3.20. words defined in the heading to these Terms shall have the same meanings as assigned to them herein when used in these Terms.
3.21. unless inconsistent with the context, an expression which denotes any gender includes the other genders, a natural person includes a juristic person and vice versa and a singular includes the plural and vice versa.
3.22. unless otherwise indicated, any expression to which a meaning is ascribed in the text of these Terms shall bear that meaning whenever such expression appears thereafter.
3.23. if any provision in a definition in these Terms is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of these Terms.
3.24. in these Terms, unless the contrary intention appears:
3.24.1. a reference to these Terms or any other instrument includes any variation or replacement of either of them;
3.24.2. a reference to : –
3.24.2.1. a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactment or replacements of any of them;
3.24.2.2. a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 (twenty four) hours later;
3.24.2.3. a day, a month or a year shall be construed as a calendar day, month or year, as the case may be.
3.24.3. the rule of construction that, in the case of ambiguity, an agreement shall be interpreted against the party responsible for the drafting thereof, shall not apply in the interpretation of these Terms.
3.25. the parties acknowledge and agree that each phrase, sentence, paragraph and clause in these Terms is severable, the one from the other, notwithstanding the manner in which they may be linked together or grouped grammatically and if, in terms of any judgment or order, any phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reasons, the remaining phrases, sentences, paragraphs and clauses, as the case may be, shall nevertheless be and continue to be of full force and effect.

4. PROVISION OF THE SERVICE

4.1. We shall use reasonable efforts to provide the Service:
4.1.1. in accordance with these Terms and South African law;
4.1.2. exercising reasonable care, skill and diligence; and
4.1.3. using suitably skilled, experienced and qualified personnel.
4.2. Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
4.3. Subject to clause 4.4, we shall use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We shall use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
4.4. Through the use of web services and application program interfaces (API’s), the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

5. YOUR OBLIGATIONS

5.1. You and your personnel must:
5.1.1. use the Service in accordance with these Terms solely for your own internal business purposes and for lawful purposes; and
5.1.2. not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
5.2. When accessing the Service, you and your personnel must:
5.2.1. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
5.2.2. correctly identify the sender of all electronic transmissions;
5.2.3. not attempt to undermine the security or integrity of the Underlying Systems;
5.2.4. not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
5.2.5. not attempt to view, access or copy any material or data other than:
5.2.5.1. that which you are authorised to access; and
5.2.5.2. to the extent necessary for you to use the Service in accordance with these Terms; and
5.2.6. neither use the Service in a manner, nor transmit, input or store any Data that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
5.3. Without limiting clause 5.2, no individual other than an Authorised User may access or use the Service. You may authorise any member of your personnel to be an Authorised User, in which case you must provide us with the Authorised User’s name and other information that we reasonably require in relation to the Authorised User. You must procure each Authorised User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
5.4. A breach of any of these Terms by your personnel (including, to avoid doubt, an Authorised User) is deemed to be a breach of these Terms by you.
5.5. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

6. DATA

6.1. You own all rights, title and interest in and to Data and are solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any Data and for adopting procedures to identify and correct errors and omissions in Data.
6.2. You acknowledge that:
6.2.1. we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
6.2.2. to the extent that this is necessary but subject to clause 9, we may authorise members of our personnel to access the Data for this purpose.
6.3. You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
6.4. Without limiting your ownership rights in Data, you acknowledge and agree that we shall have the right to utilise data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyse any non-personally and non-customer identifiable data or information resulting from your use of the Services (“Statistical Data”). Statistical Data may be collected by us for any lawful business purpose without a duty of accounting to you, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.
6.5. You acknowledge and agree that, to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as the data processor for the purposes of these Terms and may move Data to locations around the world as necessary to perform obligations under these Terms. You must obtain all necessary consents from personnel to enable us to collect, use, hold and process that information in accordance with these Terms.
6.6. While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
6.7. You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors/attorneys) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
6.8. Each party will implement reasonable and appropriate measures to protect Data and prevent any unauthorised person or entity from gaining access thereto. The Customer is responsible for verifying that its users accessing Data are properly authorised to do so. Except as stated herein, we have no responsibility for unauthorised access to the Services.
6.9. Each party will promptly notify the other if that party has actual knowledge of unauthorised access to and/or use of Data or passwords and use reasonable efforts to take prompt remedial measures to rectify such unauthorised access.
6.10. Cookie policy: We will handle Data only in accordance with these Terms. A cookie is a small amount of data, which often includes an anonymous unique identifier, that is sent to your browser from a website’s computers and stored on your computer’s hard drive. Cookies are required to use the Service. We use cookies to record current session information, but do not use permanent cookies.
6.11. You agree that:
6.11.1. Data has been collected, processed and provided to us in accordance with all applicable international laws, including applicable data protection legislation; and
6.11.2. you have provided any required notices and obtained any required consents from Authorised Users concerning the collection, use, processing, transfer and disclosure of personal information relating to your use of the Services and our provision of the Services. You are the data controller for the purposes of these Terms.
6.12. You agree that we are reliant on you for direction as to the extent to which we are entitled to use and process Data through the Services. Consequently, we will not be liable for any claim arising from any action or omission by us to the extent that such action or omission resulted directly from our provision of the Services consistent with these Terms or your instructions. You are solely responsible for any and all Data that you or any Authorised User stores, transmits, displays, or otherwise uses in connection with the Services.
6.13. The Service is compliant with the EU General Data Protection Regulation (GDPR).

PROTECTION OF PERSONAL INFORMATION ACT, NO 4 OF 2013

6.14. For the purposes of paragraphs 6.14 to 6.19, “Personal Information”, “Data Subject”, “Processing” shall have the meanings ascribed to them in the Protection of Personal Information Act, No 4 of 2013.
6.15. When processing any Personal Information in the provision of the Service, we shall, and shall ensure that all our employees, agents and subcontractors shall:
6.15.1. only Process the Personal Information for the purposes of the provision of the Service;
6.15.2. Process the Personal Information only in accordance with your instructions (which may be specific instructions or instructions of a general nature or as otherwise notified by you to us) and cease to Process, return or delete the Personal Information upon your instructions, subject to applicable laws;
6.15.3. implement appropriate, technical and organisational measures against unauthorised or unlawful Processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information;
6.16. not transfer any of the Personal Information outside the Republic of South Africa unless:
6.16.1. we are legally obliged to do so; or
6.16.2. it is reasonably necessary to do so; or
6.16.3. if neither of 6.16.1 or 6.16.2 is applicable, once your prior written consent has been obtained.
6.17. not otherwise modify, amend or alter the contents of the Personal Information or disclose or permit the disclosure of the Personal Information to any third party unless specifically authorised by the Disclosing Party or by the Data Subject; and
6.18. immediately notify you in writing if (a) we receive any request for disclosure of Personal Information by a law enforcement agency, individual or other party or (b) any accidental or unauthorised access takes place in relation to the Personal Information.
6.19. We shall comply at all times with the provisions of the Protection of Personal Information Act, No 4 of 2013 and shall not perform our obligations in such a way as to cause you to breach any of your applicable obligations under such act.

7. SUPPORT

7.1. We offer multiple levels of support. Your licence agreement, order form, support invoice or online support profile will show to which support offering you are subscribed.
7.2. You acknowledge that if you decline to provide required access, we may not be able to fully resolve an issue.
7.3. We shall provide reasonable general technical support in accordance with your support plan to allow your authorised maintenance contact(s) to report problems and to seek assistance in the use of the Services during our standard support hours as established from time to time. We may require direct system access to Data in order to provide support.
7.4. Our maintenance/support obligations shall not include:
7.4.1. providing assistance (beyond an initial communication) or consulting time relating to problems, caused by:
7.4.1.1. malfunction or failure of the computer system and/or communications network on from which you have installed and are accessing the Services,
7.4.1.2. software or services not provided by us under these Terms,
7.4.1.3. misuse,
7.4.1.4. improper installation or configuration by you, third party consultants, or support contractors, or
7.4.1.5. (if applicable) failure to incorporate updates or corrections; or
7.4.1.6. any other cause not attributable to us;
7.4.2. providing training covered in formal training classes;
7.4.3. performing professional services that would normally be provided as a billable consulting engagement, including, but not limited to, development of or support for any customisations or custom reports; or database schema changes, or supporting API’s not provided or approved by us.
7.5. If we notify you that a problem, error or malfunction for which you have requested maintenance is not covered, we will work with you to develop a mutually agreed SOW under which we will perform such services at our then-current rates.

8. INTELLECTUAL PROPERTY

8.1. Subject to clause 8.2, title to, and all Intellectual Property Rights in the Service, the Website and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
8.3. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
8.4. If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together, “feedback”):
8.4.1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
8.4.2. we may use or disclose the feedback for any purpose.
8.5. We may remove content from the Services that infringes third party copyrights or other intellectual property rights and suspend the user ID of an Authorised User who uses the Services in violation of copyright law or other laws governing intellectual property rights, and where appropriate, blocking such Authorised User’s access to the Services.
8.6. You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

9. CONFIDENTIALITY

9.1. Each party must, unless it has the prior written consent of the other party:
9.1.1. keep confidential at all times the Confidential Information of the other party;
9.1.2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
9.1.3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1.1 and 9.1.2.
9.2. The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
9.2.1. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
9.2.2. required by law (including under the rules of any stock exchange);
9.2.3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
9.2.4. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
9.2.5. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no
9.2.6. less restrictive than this clause 9.

10. WARRANTIES

10.1. Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms.
10.2. To the maximum extent permitted by law:
10.2.1. our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to R10,000,000 (ten million Rand); and
10.2.2. we make no representation concerning the quality of the Service and do not promise that the Service will:
10.2.2.1. meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility you may have; or
10.2.2.2. be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3. You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
10.3.1. to the maximum extent permissible by law, the Consumer Protection Act, No 68 of 2008 and any other applicable consumer protection legislation do not apply to the supply of the Service or these Terms; and
10.3.2. it is fair and reasonable that the parties are bound by this clause 10.3.
10.4. Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
10.4.1. supplying the Service again; and/or
10.4.2. paying the costs of having the Service supplied again.

11. LIABILITY

11.1. Neither we, nor our officers, employees, representatives, agents, sub-contractors and consultants shall be liable or responsible to you for any damages, losses or unforeseen, unexpected or unpredictable incidents that occur during the supply of the Service, where we are not grossly negligent in the supply of the Service. If, notwithstanding the exclusion of liability in this clause 11.1, or elsewhere in these Terms, we are held to be liable in respect of any claim, then our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, delict (including negligence), breach of statutory duty or otherwise, shall not in any year exceed R5,000,000 (five million Rand). The cap in this clause 11.1 includes the cap set out in clause 10.2.1.
11.2. Neither party is liable to the other under or in connection with these Terms or the Service for any:
11.2.1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
11.2.2. consequential, indirect, incidental or special damage or loss of any kind.
11.3. Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
11.3.1. personal injury or death;
11.3.2. fraud or wilful misconduct; or
11.3.3. a breach of clause 9.
11.4. Clause 11.2 does not apply to limit your liability:
11.4.1. to pay the Fees as agreed between us;
11.4.2. under the indemnity in clause 6.7; or
11.4.3. for those matters stated in clause 11.3.1 to 11.3.3.
11.5. Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
11.6. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.

12. TERM, TERMINATION AND SUSPENSION

12.1. Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
12.1.1. breaches any material provision of these Terms and the breach is not:
12.1.1.1. remedied within 14 (fourteen) days of the receipt of a notice from the first party requiring it to remedy the breach; or
12.1.1.2. capable of being remedied; or
12.1.2. becomes insolvent, liquidated or bankrupt, has an administrator, business rescue practitioner, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
12.2. Termination of these Terms does not affect either party’s rights or obligations that accrued before that termination.
12.3. On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
12.4. No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
12.5. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms, but subject to clause 12.6, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
12.6. At any time prior to one month after the date of termination, you may request:
12.6.1. a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
12.6.2. deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data.
12.7. To avoid doubt, we are not required to comply with clause 12.6.1 to the extent that you have previously requested deletion of the Data.
12.8. Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
12.8.1. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
12.8.2. used, or attempted to use, the Service:
12.8.2.1. for improper purposes; or
12.8.2.2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
12.8.3. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
12.8.4. otherwise materially breached these Terms.

13. GENERAL

13.1. Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2. No person other than you and us has any right to a benefit under, or to enforce, these Terms.
13.3. For us to waive a right under these Terms, that waiver must be in writing and signed by us.
13.4. Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
13.5. If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing us.
13.6. These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of the Republic of South Africa. Each party submits to the exclusive jurisdiction of the courts of the Republic of South Africa in relation to any dispute connected with these Terms or the Service.
13.7. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 8, 9, 11, 12.2 to 12.6 and 13.6, continue in force.
13.8. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
13.9. Subject to clauses 2.1 and 7.6, any variation to these Terms must be in writing and signed by both parties.
13.10. These Terms set out everything agreed by the parties relating to the Service, and supercede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree that it is fair and reasonable that the parties are bound by this clause 13.10.
13.11. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.