PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

SOFTWARE-AS-A-SERVICE AGREEMENT (“SAAS”)

This SaaS Agreement (“Agreement“) is effective from the date the accompanying proposal was accepted and signed.

BETWEEN: The company specified in the proposal, (the “Customer“), with the registration number on the proposal, a limited liability private company duly incorporated in accordance with the laws of the Republic of South Africa, being duly authorized, and with the domicilia citandi et executandi given in the proposal. 

AND: BOTLHALE AI (PTY) LTD, (the “Provider“),  registration number 2019/075746/07, a limited liability private company duly incorporated in accordance with the laws of the Republic of South Africa, being duly authorized, and with the following chosen domicilia citandi et executandi:

Canterbury Studios

Gardens

Cape Town

South Africa

8001

WHEREAS, The Customer is granted a license to use the Software, subject to a set of limitations and restrictions.

WHEREAS, The Provider undertakes to provide high-performance Software while committing to comply with certain requirements relating to the maintenance of the Software.

In consideration of the terms of this Agreement, and other valuable consideration, the parties agree as follows:

1. DEFINITION

“Administrator User” means each Customer representative designated by the Customer to serve as technical administrator of the SaaS Services on the Customer’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by the Provider.

“Confidential Information”  means, without limiting the generality of the term, any information or data, whether written, oral, graphic or recorded in any electronic medium which the Provider may disclose or provide to, or which otherwise comes to the knowledge of the Customer, by whatsoever means, including:

I. information relating to the Provider’s, strategic objectives and planning for both its existing and future business plans and corporate opportunities; 

II. information relating to the Provider’s business activities, business relationships, products, services, customers and clients;

III. information contained in the Provider’s software or hardware and associated material documentation;

IV. technical, scientific, commercial, financial and marketing information, know-how and trade secrets;

V. computer data, programmes and source codes;

VI. any and all methodologies, formulae and related information in developed software and processes of the Provider;

VII. Intellectual Property that is proprietary to the Provider or that is proprietary to a third party and in respect of which the Provider has rights of use or possession;

VIII. any information which is not readily available to a competitor of the Provider in the normal and ordinary course of business; and

IX. all other information in whatever form, whether subject to, or protected by common law or statute related to the protection of personal information, copyright, patent, trade marks or otherwise, which is disclosed or communicated by the Provider to the Customer;

“Effective Date” means the date the proposal was accepted and signed by the customer.

“Host” means the computer equipment on which the Software is installed, which is owned and operated by the Provider or any of its associates

“Maintenance Services” means the support and maintenance services provided by the Provider to the Customer pursuant to this Agreement.

“Proposal” means the service offering proposal presented by the Provider to the Customer to inform the Customer about the Software and Services

“Software” means the object code version of any software to which the Customer is provided access as part of the Service, including any updates or new versions.

“Service” refers to the specific internet-accessible service identified in the proposal that provides use of the Provider’s Software that is hosted by  the Provider and made available to the Customer over a network on a term-use basis.

“Customer Content” refers to any data, information, or other materials that are uploaded, posted, or stored by the Customer on the Provider’s servers as part of using the Service. This includes, but is not limited to: messages, intents, entities, documents, images, videos and other business-related data.

“Contract Period” The contract period shall begin on the effective date and shall end after the duration stipulated in the proposal 

 

2. SERVICE

The Provider hereby grants the Customer, including all authorized users of the Customer, a non-exclusive, non-sublicensable, non-assignable, royalty-free, worldwide license to access and use the Software solely for the internal business operations of the Customer in accordance with the terms of this Agreement and the Provider’s online terms of use.

3. SUBSCRIPTION TERM, RENEWAL AND CANCELLATION

3.1. The term of this Agreement shall begin on the Effective Date and shall end after the period specified on the proposal.

3.2. The Customer’s subscription will renew automatically at the end of the subscription term unless it opts out from automatic renewal or cancels its membership. The Customer can update its payment method, manage its subscription, or cancel at any time after consulting

3.3. To cancel the Service a Customer must submit a written request, no additional charges will be made. However, no refunds are provided upon cancellation. 

3.4. The Provider may offer a free trial version of the Service for a period of no longer than 60 (sixty) calendar days. The Provider does not request credit card information from the Customer when signing up to the free trial

 

4. PAYMENT FOR SAAS 

4.1. The Customer must make electronic payment to the Provider’s banking account prior to the Effective Date to be provided with the Service. 

4.2. If the Customer’s credit card on file is closed or expired, or if for any reason, a charge is rejected, the Customer will be requested to update its billing information and supply a new payment to keep its account active. If a charge is rejected, the Customer’s access to the Software will be suspended until it updates its billing information and the payment is successful.

 

5. THE CUSTOMER’S RESPONSIBILITIES

5.1. The Customer shall provide commercially reasonable information and assistance to the Provider to enable it to deliver the Service. The Customer acknowledges that the Provider’s ability to deliver the Service in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

5.2. The Customer shall comply with all applicable local, provincial, national and foreign laws in connection with its use of the Service, including those laws related to data privacy, international communications, and the transmission of technical or personal data. The Customer acknowledges that the Provider exercises no control over the content of the information transmitted by the Customer through the Services. 

5.3. The Customer shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights. This includes, but not limited to, trademarks, trade names, service marks, logos, domain names or any distinctive brand features of the Provider. 

5.4. The Customer shall be solely responsible for the acts and omissions of its administrator users. The Provider shall not be liable for any loss of data or functionality caused directly or indirectly by the administrator users.

5.5. The Customer shall notify the Provider immediately of any unauthorized use of any password or user id or any other known or suspected breach of security.

5.6. The Customer shall report to the Provider immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer.

5.7. The Customer shall not provide false identity information to gain access to or use the Service.

5.8. The Customer is solely responsible for collecting, in putting and updating all Customer content stored on the host, and for ensuring that the Customer content does not:

5.8.1. include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or 

5.8.2. contain anything that is obscene, defamatory, harassing, offensive or malicious.

 

6. LIMITATIONS OF THE LICENSE

6.1. The Service may only be used by the officers, employees, agents and subcontractors of the Customer.

6.2. The Service may only be used by the named users identified.

6.3. The Service must not be used at any point in time by more than the number of concurrent users specified in the chosen subscription package.

6.4. Subject to the access to the Software granted herein, the Provider shall own all right, title and interest in and to the Software, services, documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. 

 

7. USE OF SOFTWARE AND SERVICE RESTRICTIONS

7.1. Customer shall not, and shall not permit anyone to:

7.1.1. copy, republish or redistribute any content or material of the Service or Software;

7.1.2. make the Service available to any person other than authorized users;

7.1.3. use or access the Service to provide service bureau, time-sharing or other computer hosting services to third parties;

7.1.4. remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the documentation;

7.1.5. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Service, except and only to the extent such activity is expressly permitted by applicable law; 

7.1.6. access the Service or use the documentation in order to build a similar product or competitive product.

7.1.7. use the Service in any way that causes, or may cause, damage to the Service or platform or impairment of the availability or accessibility of the Service.

7.1.8. sub-license its right to access and use the Service;

7.1.9. conduct or request that any other person conduct any load testing or penetration testing on the platform or Service without the prior written consent of the Provider.

7.1.10. Use the Service in any way that is unlawful, illegal, fraudulent or harmful.

 

8. OWNERSHIP AND INTELLECTUAL PROPERTY

8.1. The Customer retains ownership and intellectual property rights in and to its Customer content.  The Provider retains all ownership and intellectual property rights to the Service and Software.

8.2. Customer grants to the Provider the right to use Customer content for analytics and machine learning purposes which are necessary for the Provider to improve the Service offered to its customers.

8.3. Third party technology that may be appropriate or necessary for use with some BOTLHALE AI programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by BOTLHALE AI and not under the Agreement.

 
 

9. SUPPORT SERVICES

9.1. For the contract period beginning on the Effective Date and at the Provider’s expense, the Provider will provide the Customer with telephone or electronic support during the Provider’s normal business hours in order to help the Customer correct problems with the Software, and internet-based support system generally available seven days a week, twenty-four hours a day. 

9.2. After the initial contract period, The Customer may elect to renew the Provider’s support services for additional 12 (twelve) month period, at the Provider’s current Service rates.

 

10. MAINTENANCE SERVICES

10.1. During the term of this Agreement, the Provider shall provide the Maintenance Services to the Customer.

10.2. The Provider shall give to the Customer at least 2 (two) business days’ prior written notice of scheduled Maintenance Services that are likely to have a negative impact upon the Service.

10.3. The Provider shall give to the Customer at least 7 (seven) business days’ prior written notice of the application of an upgrade to the Software.

10.4. The Provider shall give to the Customer written notice of any security update to the Software and at least 3 (three) business days’ prior written notice of the application of any non-security update to the platform.

10.5. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 14 (fourteen) days’ written notice, following the amount becoming overdue.

 

11. INDEMNIFICATION

The Provider shall not indemnify the Customer against any losses and expenses arising out of any proceeding brought by a third party and arising from this Agreement. 

 

12. CONFIDENTIALITY

12.1. During the term of this Agreement and for 3 years thereafter (perpetually in the case of Software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party.  Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.  Neither party shall reverse engineer, disassemble or decompile any prototypes, Software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder.  Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party. 

12.2. Confidential Information excludes information that: 

12.2.1. is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, 

12.2.2. is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or

12.2.3. is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.  The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.  Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

 

13. WARRANTY

13.1. The Provider represents and warrants that it will provide the Services in a professional manner consistent with general industry standards and that the Services will perform substantially in accordance with the Proposal.

13.2. The Provider warrants that the Software will perform in all material respects in accordance with the Proposal. The Provider does not guarantee that the Services will be performed error-free or uninterrupted, or that the Provider will correct all Service errors. 

13.3. The Customer acknowledges that the Provider does not control the transfer of data over communications facilities, including the internet, and that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. 

 

14. LIMITATION ON LIABILITIES

14.1. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.

14.2. Neither party’s liability under this agreement will exceed the fees paid by the Customer under this agreement during the 12 months preceding the date upon which the related claim arose.

 

15. TERMINATION

15.1. The Customer may terminate this Agreement for any reason on 30 (thirty) days’ notice to the Provider.

15.2. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if:

15.2.1. the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and

15.2.2. the failure, inaccuracy, or breach continues for a period of 14 days'(fourteen) after the injured party delivers notice to the breaching party reasonably detailing the breach.

15.2.3. the Provider may terminate this Agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the monthly subscription fee on time 3 (three) times over any 12 months period. 

 

15.3. The Customer shall immediately pay to the Provider all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.

15.4. Customer will have 2 (two) days from the date of termination to retrieve any of the data that Customer wishes to keep.

 

16. ENTIRE AGREEMENT

The Parties hereto agree that this Agreement shall not become effective until accepted by both Parties and when accepted, shall supersede and replace all previous SaaS Agreements, whether oral or written, between the parties. 

 

17. GOVERNING LAWS

This Agreement shall be interpreted and enforced in accordance with the laws of South Africa, the courts of which shall have exclusive jurisdiction over the parties as respects any dispute arising hereunder.