Terms
Version 1.0. Last updated on 12 April 2020.
Use of this website or Prana web application signifies your agreement with our Terms of Use, Software as a Service Special Terms, Customer Relationship Terms and Privacy Policy.
beta
betaVersion 1.0. Last updated on 12 April 2020.
Use of this website or Prana web application signifies your agreement with our Terms of Use, Software as a Service Special Terms, Customer Relationship Terms and Privacy Policy.
These are the general terms of the relationship between you (website visitor) and us (website owner). The terms cover all use of this website. You agree to the terms by visiting and using this website.
2.1 Definitions. In the agreement:
terms means the terms, consisting of:
we, us, or our means Spa Guru CC trading as Prana, the owner of the website. It includes our officers, agents, employees, owners, co-branders and associates where the terms limit or exclude our liability;
you or your means any visitor to this website, including any other person, website, business or agent (including any virtual or robotic agent) associated with the visitor.
2.2 Conflict. If the meaning of any general term conflicts with any other relevant specific term, the specific term will apply. Specific terms apply to a specific section of the website or have been specifically agreed between you and us.
3.1 Licence. We grant you a limited licence to use this website on these terms. We may cancel your licence at any time for any reason. Your licence is automatically cancelled if you do not get our written permission before using this website in a way these terms do not allow.
3.2 Breach. If you breach any of the terms or infringe any other person’s rights (including copyright), we may cancel your licence, block you from using the website, claim specific performance or damages against you and take any other steps the law allows, without affecting our rights.
3.3 Framing. You may not frame this website or any of its pages.
3.4 Linking. You may only link to the home page of this website. You may not deep link (link to any other page) or link in any way that could suggest that we endorse or support you, or that you have any rights in our website or intellectual property.
3.5 Virtual agents. You may not use any technology (including spiders, crawlers, bots and similar virtual agents) to search or gain any information from this website.
4.1 Ownership. Except as provided to the contrary in the agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of this website are our sole property or will vest in us or a third party licensor. All moral rights are reserved.
4.2 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
4.3 Restrictions. Except as expressly permitted under the agreement, the website may not be:
5.1 You use this website at your own risk. We provide the website “as is”. 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 defect, errors, malicious software or infringing content, or that you will have quiet or uninterrupted use of it.
5.2 You indemnify us. 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.
5.3 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.
5.4 Direct damages limited. If the previous clause does not apply for any reason, our maximum liability to you for all claims for direct damages is R100. This limit applies whether a claim is based on contract, delict (tort) or any other legal cause of action.
5.5 No liability for 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.
5.6 Other website. We are not responsible for anyone else’s website.
6.1 Entire agreement. The terms are the entire agreement between the parties on the subject.
6.2 Changes to website. We may change or stop publishing this website without notice and will not be responsible for any consequences.
6.3 Changes to terms. We may change the terms by placing a notice on this website. If you do not agree with the change, you must stop using this website or the changed terms will apply to you.
6.4 Facts about website. If an administrator of this website signs a letter confirming any fact related to the website, that letter is conclusive proof of its contents. These may include the version of the terms that apply to any dispute, or what content or functions the website had at a particular time or date.
6.5 Waiver. We do not ever waive (give up) our rights, even if we allow you any favour or extension of time, or we delay enforcing our rights against you.
6.6 Severability. Any term that is invalid, illegal or cannot be enforced must be regarded as deleted. The remaining terms continue as intended.
6.7 Law and jurisdiction. South African law and conditions (such as time and date) govern the terms. Only the South African courts may decide any dispute about the terms.
Welcome to our privacy policy. We are SpaGuru CC, Registration Number: 2009/165352/23 and this is our plan of action when it comes to protecting your privacy. We respect your privacy and take the protection of personal data very seriously.
The purpose of this policy is to describe the way that we collect, store, use, and protect data that can be associated with you or another specific natural or juristic person (in South Africa) and can be used to identify you or that person (personal data).
We provide management software, technology, hosting and professional services to businesses involved in the beauty and spa industries. We often act as an operator or processor for these organisations and may store personal data that they collect. We treat this personal data with the utmost respect and will protect it. When we act as an operator or processor for our customers we will only process your personal data according to their instructions and the purpose that they define.
This policy applies to you if you are:
Personal data includes:
but excludes:
Common examples of the types of personal data which we may collect and process or that we may collect and process on behalf of customers include:
We do not collect sensitive personal data for our own purposes, but we may store and process such information on behalf of our customers including your:
You must accept all the terms of this policy when you order any of our goods or order, register for, or use the website or software. If you do not agree with anything in this policy, then you may not order any of our services, register for, or use the website or software. You may not order any of services, register for, or use the website or application if you do not accept this policy.
If you are under 18 years old you need to have consent from your legal guardian to use our software or access our technology services.
By accepting this policy, you are deemed to have read, understood, accepted, and agreed to be bound by all of its terms.
You may only send us your own personal data or the information of another data subject where you have their permission to do so.
We may change the terms of this policy at any time by updating this web page. We will notify you of any changes by placing a notice in a prominent place on the website or the software, or by sending you an email detailing the changes that we have made and indicating the date that they were last updated. If you do not agree with the changes, then you must stop using the website, the software and our services. If you continue to use the website, the software or services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted those updated terms.
Depending on whether you are a visitor to our website, a user of our software, a customer, or a data subject for whom we manage or process data for on behalf of a customer, different data may be collected, managed or processed by us.
Depending on the type of personal that we interact with we collect different types of personal data. We do not capture special personal data for visitors to our website, users of our software or customers who have ordered the good or services that we provide. Special personal data is only captured for data subjects of our customers. In those situations, we are the operators or processors. The customer is the responsible party or data controller and their privacy policy will determine how that special personal data is handled and processed.
If you use our software or technology services, you may no longer be anonymous to us. You may provide us with a variety of certain personal data. This personal data may include:
We will use this personal data to fulfil your account, provide additional services and information to you as we reasonably think appropriate, and for any other purposes set out in this policy.
Our customers may use our software or technology services to collect or process other additional information about you, including sensitive personal data. We do not control the nature, purpose or use of data collected by our customers, who are responsible parties and act only in the capacity of an operator or processor in this regard. We process your personal data based on the contract between ourselves (as the operator or processor) and the responsible party or data controller who you are likely interacting with.
We automatically receive and record Internet usage information on our server logs from your browser, such as your Internet Protocol address (IP address), browsing habits, click patterns, version of software installed, system type, screen resolutions, colour capabilities, plug-ins, language settings, cookie preferences, search engine keywords, JavaScript enablement, the content and pages that you access on the website, and the dates and times that you visit the website, paths taken, and time spent on sites and pages within the website (usage information). Please note that other websites visited before entering our website might place personal data within your URL during a visit to it, and we have no control over such websites. Accordingly, a subsequent website that collects URL information may log some personal data.
We may place small text files called ‘cookies’ on your device when you visit our website or use our application. These files do not contain personal data, but they do contain a personal identifier allowing us to associate your personal data with a certain device. These files serve a number of useful purposes for you, including:
Your internet browser generally accepts cookies automatically, but you can often change this setting to stop accepting them. You can also delete cookies manually. However, no longer accepting cookies or deleting them will prevent you from accessing certain aspects of our website where cookies are necessary. Many websites use cookies and you can find out more about them at www.allaboutcookies.org.
Some of our business partners use their own cookies or widgets on our website. We have no access to or control over them. Information collected by any of those cookies or widgets is governed by the privacy policy of the company that created it, and not by us.
Our website may contain electronic image requests (called a single-pixel gif or web beacon request) that allow us to count page views and to access cookies. Any electronic image viewed as part of a web page (including an ad banner) can act as a web beacon. Our web beacons do not collect, gather, monitor or share any of your personal data. We merely use them to compile anonymous information about our website.
You may also provide additional information to us on a voluntary basis (optional information). This includes content or products that you decide to upload or download from our website or application or when you enter competitions, take advantage or promotions, respond to surveys, order certain additional goods or services, or otherwise use the optional features and functionality of our technology services. We will always explain to you for what purpose the information is being collected. The information that we collect will be adequate, relevant and not excessive in relation to that purpose.
We may monitor and record any telephone calls that you make to us, unless you specifically request us not to.
We may use or process any goods information, services information, or optional information that you provide to us for the purposes that you indicated when you agreed to provide it to us. Processing includes gathering your personal data, disclosing it, and combining it with other personal information. We generally collect and process your personal data for various purposes, including:
We may use your usage information for the purposes described above and to:
We will obtain your consent to collect personal data:
We may use your personal data to fulfil our obligations to you.
We may send administrative messages and email updates to you about the technology services. We may wish to provide you with information about new services in which we think you may be interested. This means that in some cases, we may also send you primarily promotional messages. We will not send you promotional messages unless you have chosen to opt-into them. But, we may send you one message asking you to opt-into promotional messages without you having opted-into promotional messages.
While you are logged into the website or application, we may display targeted adverts and other relevant information based on your personal data. In a completely automated process, computers process the personal data and match it to adverts or related information. We never share personal data with any advertiser, unless you specifically provide us with your consent to do so. Advertisers receive a record of the total number of impressions and clicks for each advert. They do not receive any personal data. If you click on an advert, we may send a referring URL to the advertiser’s website identifying that a customer is visiting from the website. We do not send personal data to advertisers with the referring URL. Once you are on the advertiser’s website however, the advertiser is able to collect your personal data.
We may share your personal information with:
We may disclose your personal data as required by law or governmental audit.
We may disclose personal data if required:
We will not sell personal data. No personal data will be disclosed to anyone except as provided in this privacy policy.
We may disclose aggregate statistics (information about the customer population in general terms) about the personal data to advertisers or business partners.
We may need to disclose personal data to our employees that require the personal information to do their jobs. These include our responsible management, human resources, accounting, audit, compliance, information technology, or other personnel. Any of our employees or personnel that handle your personal data will have signed non-disclosure and confidentiality agreements.
If we undergo a change in ownership, or a merger with, acquisition by, or sale of assets to, another entity, we may assign our rights to the personal data we process to a successor, purchaser, or separate entity. We will disclose the transfer on the website. If you are concerned about your personal data migrating to a new owner, you may request us to delete your personal data.
We take the security of personal data very seriously and always do our best to comply with applicable data protection laws. Our hosting company will host our website in a secure server environment that uses a firewall and other advanced security measures to prevent interference or access from outside intruders. We authorize access to personal data only for those employees who require it to fulfil their job responsibilities. We implement disaster recover procedures where appropriate.
We will try to keep the personal data we collect as accurate, complete and up to date as is necessary for the purposes defined in this policy. From time to time we may request you to update your personal data on the website. You are able to review or update any personal data that we hold on you by accessing your account online, emailing us, or phoning us. Please note that in order to better protect you and safeguard your personal data, we take steps to verify your identity before granting you access to your account or making any corrections to your personal data. Throughout your interaction with us you retain the right to rectify personal data that is incorrect or inaccurate. This does not apply if we process your personal data in our capacity as an operator or processor on behalf of a responsible party or data controller.
We will only retain your personal data for as long as it is necessary to fulfil the purposes explicitly set out in this policy, unless:
During the period of retention, we will continue to abide by our non-disclosure obligations and will not share or sell your personal data.
We may retain your personal data in physical or electronic records at our discretion.
We may transmit or transfer personal data outside of the country in which it was collected to a foreign country and process it in that country. Personal data may be stored on servers located outside the country in which it was collected in a foreign country whose laws protecting personal data may not be as stringent as the laws in the country in which it was collected. You consent to us processing your personal data in a foreign country whose laws regarding processing of personal data may be less stringent.
You may choose to correct or update the personal data you have submitted to us, by clicking the relevant menu in any of the pages on our website or the application or contacting us by phone or email. You are entitled to a right to be forgotten. We will delete any personal data that you don’t want us to have. If you are a data subject of one of our customers (who is the data controller), then you must submit your request to the relevant data controller who will then delete your personal data.
You may request that we restrict the use of your personal data. When we restrict your personal data we still have the right to store it but not use it. You can ask that we do this verbally or in writing. We will respond to the request within 30 days.
If you should wish to transfer your data from us to another data controller that we will facilitate this transfer. We will pass on all of your personal data you have given us to the new data controller.
If you are a data subject of one of our customers (who is the data controller), then you must submit your request for your personal data to the relevant data controller, who will then export your personal data as a Microsoft Excel or CSV file.
We will notify our customers of any confirmed data breaches that has occurred. It is our customers’ responsibility to notify relevant supervisory authority and any affected data subjects of the data breach.
We are not responsible for, give no warranties, nor make any representations in respect of the privacy policies or practices of linked or any third-party websites.
If you have any questions or concerns arising from this privacy policy or the way in which we handle personal data, please contact us.
1.1 These special terms describe the legal terms and conditions applicable to our provision and your use of the services (as defined below).
1.2 When we accept an order a contract between us is formed. The terms and conditions of that contract are made up of:
1.2.1 clauses 2 (defintions), 3 (status and precedence), 4 (commencement and duration), 5.1(orders), 8 (customer data), 12 (disclaimer of warranties), 13 (customer warranties), 14 (fees and payment), 16 (intellectual property), 17 (confidential information), 21 (limitation of liability), 22 (breach and termination), 23 (eefect of termination), 24 (resolving disputes), 25 (notices), 26 (force majeure), 27 (assignment and sub-contracting) and 30 (general) of the customer relationship terms which are incorporated herein by reference.
1.2.2 these special terms which supplement the customer relationship terms.
1.2.3 all applicable orders.
1.2.4 any applicable third party software terms (software components provided to us by other companies who require certain terms and conditions to be included in the agreement)
1.2.5 our service description (our document that describes the features and functions of the service).
2.1 administrator means the single employee authorised by you, to provision, manage and administer the services.
2.2 agreement means the agreement between you and us and comprises the customer relationship terms, these special terms, any applicable third party software terms, orders and the service description.
2.3 authorised user means you or an employee, if you are a juristic person, who has been assigned credentials, and includes an administrator, all of whom have been authorised to use the service under the agreement.
2.4 control panel means a means the section on the website accessible by you through a web browser to manage and administer certain functions of the services yourself.
2.5 credentials mean a unique log in and password for each authorised user to access and use the services.
2.6 data means
2.6.1 in the case of your data, all digital information that you generate (i) and upload to and processes on the service yourself or via a third party and (ii) through your use of the service, but excudes our data; or
2.6.2 in the case of our data, data that we or the hosting company that hosts the services generate or supply to you in providing the services, but excludes any derived data that we create for own internal purposes or that is proprietary or confidential to us (such as data about the operation of the service).
2.7 documentation mean any guides and other documentation for the services that we provide or make available to you.
2.8 effective date of
2.8.1 an order has the meaning given in the customer relationship terms; and
2.8.2 the service means the time indicated in the order from when we will begin providing the services being either: (i) a calendar date; or (ii) the occurrence of an event.
2.9 excusing event means any of:
2.9.1 your acts or omissions or those of a third party for which you are responsible, including your failure to supply accurate, complete, and timely information when requested;
2.9.2 a force majeure event (as detailed in clause 26 of the customer relationship terms);
2.9.3 routine maintenance of the services (as described in 6.14), any other scheduled downtime agreed to by the parties or emergency or unscheduled maintenance of the services (as described in clause 9);
2.9.4 defects in third party software or our loss of license rights or restrictions imposed on us by third party licensors with respect to third party software;
2.9.5 configuration issues with any operating system, database, application, network, hardware, infrastructure, or other code or materials not provided by us;
2.9.6 any act or omission of a third party or that is not caused by us provided that we use reasonable efforts to maintain current versions of software patches; and
2.9.7 compliance with any applicable law or requests of governmental entities that adversely affects our ability to provide the services.
2.10 open source software means open source software as that term is defined by the Open Source Initiative.
2.11 services means the application that we make available to you as a service from the website as indicated in the order and described by the service description.
2.12 service description means the document that explains the relevant service and describes the features and functions of that service.
2.13 software means the software that we make available for your use as part of the services, including both our software and third party software.
2.14 support means unscheduled, ad hoc remedial support provided by us to address a problem;
2.15 third party software means open source software and properietary software owned by third parties that we have been authorised to use to provide the service or sub-license to you in connection with the services under any applicable third party software terms.
2.16 “you” and “your” means our customer who enters into an order with us.
3.1 You must register to use the services. We reserve the right not to enter into the agreement with you (reasons could include for example that you have previously been suspended from using our services or you pose an unacceptable level of risk for us).
3.2 Registration information. You must:
3.2.1 provide your full legal name, a valid email address, and any other information requested by us to complete the registration process;
3.2.2 have the legal capacity to conclude legally binding contracts;
3.2.3 possess the legal right, full power, and authority to enter into the agreement;
3.2.4 be old enough under applicable law to enter into the agreement;
3.2.5 submit true, accurate and correct information to us.
3.2.6 If you are juristic person, the person making application on your behalf must also be be duly authorised to conclude contracts on your behalf.
3.3 Identity verification. It is important for us to know who we are doing business with online. You authorise us to make any enquiries we consider necessary to verify your identity. This may include:
3.3.1 us conducting a credit check; or
3.3.2 you providing us with documentation such as your registration documents if you are a juristic person, or the front page of your ID book or proof of your address; and
3.3.3 us verifying this against third party databases.
4.1 Issuing of credentials. After you have registered on our website, we will send you your credentials which will enable you to sign into your account on our website. If you are a juristic person, you wlil have to desginate specific authorised users and an adminstrator. Only you may use your credentials. We do not permit multiple people to share a login.
4.2 Access. Only authorised users may access the service by using their credentials.
4.3 Responsibility for credentials. Each authorised user is responsible for maintaining the confidentiality and safekeeping of their credentials. We will not be liable for any loss or damage attributable by the authorised user’s failure to maintain the confidentiality of their credentials.
4.4 Authorised user obligations. In addition to the afregoing responsibilites, each authorised user agrees:
4.4.1 not to interfere with the functionality or proper working of the service; and
4.4.2 not to introduce any malware into the service.
4.5 Adminstrator Obligations.
4.5.1 In addition to the afregoing responsibilites, the adminstrator agrees:
4.5.1.1 to only create one account per email address per authorised user;
4.5.1.2 to make a list of all authorised users available to us on request;
4.5.1.3 to immediately notify us in writing of any lost credentials by an authorised user;
4.5.1.4 to ensure that authorised users who are no longer authorised to use the service do not use the service;
4.5.1.5 to notify us of any known breach of this agreement;
4.5.1.6 to take reasonable measures to ensure that authorised users do not introduce any malware into the service.
4.6 Your 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.
5.1 Ordering services. You may order services from us by submitting orders online here.
5.2 Acceptance of Orders. An order is only binding on us when we send you an email confirming acceptance of the order or commence performing the service, whichever happens first.
6.1 Grant of rights. Subject to your payment of all fees and your performance of all your obligations under the agreement, we grant you during the term of each applicable order:
6.1.1 a right to access and use the service and documentation; and
6.1.2 a limited, non-exclusive, non-transferable license to use the software in connection with the service
6.2 Restrictions. Except as expressly permitted by the agreement, you will not and will ensure that your authorised users do not:
6.3 reproduce, download, frame, mirror, or create derivative works from the services;
6.4 decompile, disassemble, or otherwise reverse engineer any software;
6.5 access or use the service in order to build any competing product or service;
6.6 license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make the service available to any third party, or use the service on a service bureau basis;
6.7 access or use the service in breach of any applicable law;
6.8 remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within the third party software or the service;
6.9 use or access the service in any manner other than as expressly permitted by the agreement.
6.10 Third party software. The service may include third party software in which case the third party software terms will apply. If there is any conflict or inconsistency between the third party software terms and this Agreement with respect to third party software, then the third party software terms will prevail to the extent of the conflict or inconsistency.
6.11 No other rights. As between us, we are the owner of all right, title and interest (including intellectual property rights) in and to the service. Subject only to the rights of use and licenses granted in this agreement, you will not acquire or claim any right, title or interest (including intellectual property rights) in or to the services, whether by implication, operation of law or otherwise.
6.12 Your data. You may install and use your data on the services. You are solely responsible for: (i) ensuring that you have the necessary rights, permissions and licences to install and use the your data on the services and (ii) the acts and omissions of any users of your data.
6.13 Ownership of your data. As between the parties, you are the owner of all right, title and interest (including intellectual property rights) in and to your data. You grant us a limited, non-exclusive, non-transferable right and license during the term of each applicable order to use and host the your data solely in connection with providing the services and performing our obligations under the agreement.
6.14 Maintenance. We perform scheduled maintenance on the services, including maintenance related to the software and other equipment and materials used for providing the services. Occasionally we may need to perform emergency or unscheduled maintenance. Maintenance may cause interruptions to the services although us will use reasonable efforts to inform you in advance about maintenance related service interruptions including the likely duration.
6.15 Support. We will provide a help desk from 09:00 to 16:00 on business days. You are able to contact the helpdesk by email or telephoning The email address and phone number are provided on our website. Emergency phone support is offered on weekends from 09:00 until 12:00. When logging a support request, you must (i) provide the assistance and input as we may reasonably require to enable us to provide the support services and (ii) establish all necessary software and hardware maintenance contracts with all third parties and vendors for software and hardware that you provide.
6.16 Backup. We are responsible for the routine back-up and archiving of your data.
6.17 Privacy and access to your data. You acknowledge that the services are designed and operate so that we do not have control over or access to your data. We are therefore not able to manipulate, modify or deal with your data and you are the responsible party for purposes of applicable protection of personal information laws.
6.18 Our security obligations. We will take appropriate, reasonable technical and organisational measures to prevent unlawful or unauthorised access to the services. In doing so we will (i) have regard generally accepted information security practices and procedures and the cost of implementing any such measures: (i) identify all reasonably foreseeable internal and external risks to the service;(ii) establish and maintain appropriate safeguards against the risks identified; (iii) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards; and (iv) regularly verify that the safeguards are effectively implemented.
6.19 Preservation of integrity of your data. Both parties will take reasonable precautions (having regard to the nature of their obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data. Loss of integrity includes i) loss of availability (e.g. resulting from corruption or deletion) and ii) loss of confidentiality (e.g. due to a security breach or an unauthorised disclosure).
7.1 Our additional warranties. In addition to the warranties we provide in the customer relationship terms, we warrant to you that we will perform the services materially in accordance with the service description. We will pass on to you the benefit of any warranties and indemnities we receive under any third party software terms to the extent that we have the right to do so. Otherwise we make no, and expressly disclaim all, representations and warranties with respect to third party software.
7.2 Other warranties excluded. The services are provided on an “as is” and “as available” basis. Except for the representations and warranties in the agreement, we expressly disclaim all other representations, warranties and conditions, whether express or implied, including as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, title, that the services will meet your requirements or be timely, uninterrupted, error free or secure. No advice, results or information obtained by you from us or through the services, any documentation will create any warranty, condition or obligation on us.
8.1 You will pay us the fees set out in the order.
8.2 We may charge you additional fees on a time and materials basis at our then current rates for any of the following re-establishment of services (whether following suspension or otherwise) or other assistance requested by you outside the scope of the applicable order.
8.3 Additional fees will be invoiced monthly in arrears.
9.1 We reserve the right to suspend or restrict your or any authorised user’s access to and use of the services if:
9.1.1 we reasonably believe that your activities pose a significant credit or fraud risk to us or our other users, or may cause financial loss or legal liability for us, our other users;
9.1.2 you or any authorised user breaches this agreement;
9.1.3 you or any authorised user fails to cooperate with any reasonable investigation by us of a suspected breach of this agreement;
9.1.4 we reasonably determine that suspension is necessary to prevent or mitigate damage or disruption to our systems or networks or those of the service provider who hosts the IT infrastructure from which the services are provided;
9.1.5 you fail to pay any fees when due;
9.1.6 as the result of any excusing event, (collectively “service suspensions”).
9.2 We will use commercially reasonable efforts to provide: (i) prior notice of a service suspension; and (ii) updates regarding resumption of services following a service suspension.
9.3 Your data stored on the services may be unavailable during a service suspension. We will have no liability for any damages, liabilities, or losses resulting from a service suspension.
10.1 Termination for good cause. We may immediately terminate this agreement at any time by giving you notice in writing if:
10.1.1 any third party software license agreement with a key vendor changes materially, is revoked or terminated;
10.1.2 our relationship with one of our key technology goods or service providers terminates or requires a change in the way we provide the software or other technology as part of the services.
10.2 Effect of Termination. On the deactivation or deletion of your account:
10.2.1 the agreement will terminate;
10.2.2 your rights of access to the service will immediately cease to exist; and
10.2.3 all your data will be erased.
10.3 Post termination assistance. Following the termination of the service, you will be entitled to take advantage of any post-termination assistance that we may generally make available with respect to the service (such as data retrieval arrangements). We may endeavour to provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the service, or made available uniquely to you, will depend on your acceptance of and compliance with any additional fees and and terms that we may impose for such assistance.
11.1 We may change these special terms from time to time including when required by law (a “regulatory change”). We will provide notice to you of changes including by posting the updated version of these terms here. Your continued use of the service following a change will be deemed acceptance by you of the change. Depsite this, any material change to these terms will not apply retrospectively to a claim or dispute between you and us in connection with the agreement that arose prior to the date of the change.
We supply cloud based appointment scheduling, point of sale, marketing and CRM business services.
2. Read instructions.Please carefully read and follow all instructions that come with our services. For example, any documents that help you use our services. Please also read our website for tips on using our services.
3. Cooling-off period.Section 44 of the ECT Act may apply to your electronic transactions. If you qualify as a consumer under the Electronic Communications and Transactions Act, you may be entitled to cancel some electronic transactions within seven days, without reason or penalty. Section 44 is only applicable if you are a natural person – in other words, a human being. You must also be the end user of the service. The transaction must be an electronic transaction – a transaction concluded via (in whole or in part) the website, email, or SMS.
4. Our warranty.We warrant that we will provide all our services as soon as reasonably possible after you have informed us that you would like us to begin providing the services.
5. Refund of services in terms of cooling-off period.The right to cancel does not apply to any services where you have given us your permission to provide them to you within seven days of accepting your Order.
6. Pre-payment.If the right to cancel does apply and you have prepaid the price of the services, we will refund you the price of the services within 30 days of the date on which you cancelled the Order.
7. Services.An unsatisfactory service is one that was not provided in a way or was not of a level of quality that an average person would expect of that type of service. The customer must claim that a service was unsatisfactory.
8. Statutory compensation.We will refund the price of any unsatisfactory service that you submit a successful claim for. Refund claims must follow our refunds procedure below.
9. Choice of compensation.Any customer that is also a consumer under the CPA may decide whether we should either, provide them with additional services to remedy or refund them for unsatisfactory service. We will decide how to compensate any of our other customers.
10. Warranty on remedies.We warrant that we will provide all additional services to remedy unsatisfactory services as soon as reasonably possible after you chose for us to, or we decide to remedy any unsatisfactory service.
11. Procedure for refunds from other service providers.Customers of other service providers (such as downstream service providers who pass on our services to other customers) must submit claims for unsatisfactory services directly to that service provider. Customers must use the correct refund procedure. Please call the customer services department of the relevant service provider for details of their refund procedures.
12. Delays in providing services.We will diligently try to provide the services as agreed. But, there may be delays which are not our fault that prevent us from providing the services. We will notify you of any delays caused by reasons beyond our control.
13. Place date and time for providing services.Except for when the services are provided over the Internet, we will only provide you with the services at the place and at the date and time agreed to between us. If we are unable to provide the services to you at the place, date and time as agreed for any reason, we will contact you and agree a new place, date and time to provide the services to you.
14. Assignment of the services.We may assign our rights and duties under the agreement, including our duty to provide the services to you, to any successor or purchaser of our business or some of our assets. Any successor or purchaser will provide alternative services similar to ours that are reasonably accessible to you.
15. Our refunds procedure.You must use our refunds procedure for claiming for unsatisfactory services, or else we may refuse to process the claim. Our refunds procedure is as follows:
If we do not accept that we provided an unsatisfactory service, and our helpdesk has not been able to help, any customer may still take the matter up with a suitable ombud or other dispute resolution body, or take legal action. The dispute resolution procedures under the CPA do not necessarily apply to all transactions with us. This policy does not exclude any other rights customers may have.
17. Our customer services department contact details.Our customers can contact our service department as follows:
We aim for complete customer satisfaction. We respect our customers’ rights and always try to comply with best practice and all relevant laws. If you are not satisfied with any of our services, or have any questions, please contact our customer services department and have your invoice ready. We will try our best to solve your problem. We are proud of the reputation of our services.
These terms are the current general terms of the relationship between Spa Guru and customer. The terms cover any transactions where Spa Guru provides ICT goods or services to customer. The commercial terms of any transaction will be contained in an order that will incorporate these terms. Nothing in the terms obligates any party to enter into any orders.
Definitions. In the agreement:
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means the agreement between Spa Guru and customer, consisting of the terms and any orders the parties enter into;
business day means any day other than a Saturday, a Sunday or a holiday (including a public or bank holiday) in the Republic of South Africa;
business hours means Spa Guru’s normal business hours on business days;
computer system means any software, hardware, network components, hardware devices and appliances owned by the customer or cloud computing infrastructure used by the customer to store data or run applications;
customer means the customer that enters into an order and, if specified in the order, those related to it;
customer material means any proprietary documents or media (in electronic or physical form) containing customer data that customer (or any third party on customer’s behalf) provides or makes available to Spa Guru for purposes of the agreement;
customer policies means any of customer’s policies, practices, codes of conduct and procedures, including any applicable broad based black economic empowerment, information security, information technology, quality management, health, safety and environmental policies (as amended from time to time) that may be of general application;
deliverable means any deliverable or work product that Spa Guru designs, develops or produces specifically and directly for and delivers to the customer, including (but not limited to) code, material, a web application, a website, or any custom software;
effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by Spa Guru;
EULA means an end user license agreement;
existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;
fees means the software or service fees, charges, or purchase consideration that customer will pay to Spa Guru in respect of goods or services Spa Guru provides under orders;
goods means any goods Spa Guru provides to customer under orders and includes software;
order means a goods or services order agreed to by both the parties describing the specific goods or services that Spa Guru will provide to customer;
personal information means personal information as defined by the Protection of Personal Information Bill;
plan means a plan for good or services selected by customer in the applicable order;
related means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;
services means any services Spa Guru provides to customer, under orders;
sign means the handwritten signature or ordinary or advanced electronic signature that the parties agree to use of the duly authorised representative of a party;
site means the physical site referred to in an order, to which Spa Guru will deliver goods or provide services under the order;
Spa Guru know-how means any concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; models (including, without limitation, asset management and other management, business, function, process, system and data models), templates, the generalised features of the structure, sequence and organisation of software and data files, user interfaces and screen designs, communications protocols, business processes and business rules, product architecture, data file definitions, structures, utilities and routines; and logic, coherence and methods of operation of systems that Spa Guru has created, acquired or otherwise has rights in;
software means the software described in the software license special terms;
specification means the specification (which may be in the form of a proposal, wire frame, project initiation document, functional specification, or technical specification) of the deliverable, which may be (i) in or attached to an order, or (ii) in writing, dated and signed by the parties;
tax means any:
terms means the terms, consisting of:
third party contracts means any contracts in force at the effective date between customer and third party contractors, referred to in the order;
writing means the reproduction information or data in physical form and includes handwritten documents, hard copy printouts and fax transmissions, but excludes information or data in the form of email.
2.1 Definitions in the order. Words defined (or assigned a meaning) in this agreement will have that meaning in an order and any special terms, unless the context clearly indicates otherwise.
2.2 Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
3.1 Umbrella agreement. These general terms constitute an umbrella agreement under which Spa Guru will supply goods and services to customer from time to time.
3.2 Types of orders. The commercial terms of any transaction will be contained in an order that will incorporate these terms.
3.3 Application. The current version of the terms in effect at the time you place an order will govern the order.
3.4 Separate agreement. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any order.
3.5 Replacement. These terms will remain valid until replaced by Spa Guru with amended or new terms. The new terms will not affect any existing orders but will apply to all new orders concluded with effect from the date on which the replacement terms are specified to take effect.
3.6 Conflict. If there is a conflict of meaning or inconsistency between these customer relationship terms and any special terms, the special terms will prevail to the extent necessary to resolve the conflict or inconsistency.
4.1 These terms. Unless specified in an order, the terms commence on the date Spa Guru accepts the first order and continue indefinitely until it terminated in accordance with the provisions of this agreement.
4.2 Each order. Each order will commence on the effective date specified in the order or on acceptance of the order by Spa Guru and continue until terminated, unless terminated earlier in terms of this agreement. Unless proven to the contrary Spa Guru only accepts an offer relating to services, when Spa Guru begins providing the services.
The supply of goods and services will be governed by orders.
5.1 Requests (other than software as a service). If customer requires Spa Guru to provide new or additional goods or services, other than services for software as a service, Customer may submit a request for services to Spa Guru detailing:
together with any other requirements or information relevant to the provision of the new goods or services.
5.2 Acceptance of proposal. If the proposal is acceptable to SpaGuru, the parties will execute an order.
5.3 Requests (software as a service). If customer requires Spa Guru to provide new or additional services Customer may provision new services through the online control panel.
6.1 Changes to goods or services. During the currency of an order, events may occur which require a change to the nature and scope of goods or services being provided. The parties will not implement a change unless they comply with this clause.
6.2 Change request. A party may propose a change to the nature and scope of goods or services by sending a scope change document to the other party detailing the desired changes.
6.3 Scope change document. If a scope change document is made by:
6.4 Sign-off. The parties will discuss and agree the proposed changes and make the necessary amendments to Spa Guru’s scope change proposal. customer will then consider the scope change proposal and may approve or reject it in writing within three business days. If customer:
6.5 No change effective until sign-off. No party may proceed with any change to an order until the change and all matters relating to the change have been agreed in writing between the parties. Pending sign-off, the parties will continue to perform their obligations without taking account of the proposed changes. No party must agree to any change, but a party will not unreasonably delay or withhold their agreement to a proposed change.
6.6 Exception. Amendments to the content of the agreement that do not directly impact the nature and scope of the goods or services will not be subject to this change control procedure, but the parties will execute it in writing.
To enable Spa Guru to provide the goods or services, customer agrees to provide ongoing assistance, liaison, input, support and full co-operation and will, to the extent Spa Guru requires and at customer’s cost:
7.1 Customer equipment; install, configure and maintain all necessary customer equipment at its own expense in accordance with any specification requirements. This includes any third party network services or software applications not provided by Spa Guru. Spa Guru will not be responsible for any fault, failure, loss or damage associated with any customer equipment or any third party software;
7.2 Suitable infrastructure; provide a suitable infrastructure for the software that Spa Guru must implement, including servers, network operating systems, third party software, databases, tools and related facilities, in accordance with any specification requirements;
7.3 Access; where required by SpaGuru, provide Spa Guru with reasonable access to customer material and customer's computer systems;
7.4 Notifications; notify Spa Guru as soon as reasonably possible of any issues, concerns or disputes;
7.5 Backup; be responsible for the back up of the customer data, except where Spa Guru specfically agrees in an order to provide provide the customer with data backup and restoration facilities for the customers data;
7.6 Disaster recovery; be responsible for disaster recovery, except where Spa Guru specfically agrees in an order to provide provide the customer with disaster recovery services;
7.7 Customer material; be responsible for the accuracy and completeness of all customer material;
7.8 Dependent functions make available sufficiently qualified and authorised customer personnel, with appropriate access rights and permissions;
7.9 No malicious software; take commercially reasonable measures to ensure that customer (or its personnel or any third party) does not introduce any malicious software into any computer system.
8.1 Privacy and protection of Personal Information.
8.1.1 Legal Obligations. Spa Guru and customer are each responsible for complying with their respective obligations under applicable laws governing personal information. Both parties both acknowledge that they are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
8.1.2 Use of Personal Information. The manner in which Spa Guru might use customer’s personal information is dealt with in Spa Guru’s privacy policy. If customer is not satisfied with the level of privacy Spa Guru provides or disagrees with anything in Spa Guru’s privacy policy, customer is deemed to not accept these terms and customer may not use Spa Guru’s services.
8.1.3 Responsible Party. Customer remains the responsible party for determining the purpose and means of our processing of customer personal information including that processing will not place Spa Guru in breach of any laws.
8.2 Trans-border Data flows. Where required for the proper performance of the services, customer consents to Spa Guru transferring customer personal information across a country border to enable Spa Guru to comply with its obligations under the agreement.
8.2.1 Indemnity. Customer agrees to indemnify, defend, and hold Spa Guru harmless (and those related to Spa Guru and its personnel) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to customer failing to comply with its obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own customer basis.
8.3 Access. On a party's reasonable written request, the other party will provide the requesting party with the information that it has regarding customer data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
8.4 Preservation of integrity of customer data. Both parties will take reasonable precautions (having regard to the nature of their obligations under the agreement), to preserve the integrity of customer data and prevent any unauthorised access, corruption or loss of customer data.
9.1 Applicable terms. Where Spa Guru is required under orders to manage or co-ordinate with a customer-appointed contractor or supplier of goods or services who is not a party to the agreement (“third party contractors”) in relation to third party contracts, the following terms will apply:
9.2 No liability. Spa Guru will not be liable for any act or omission of a third party contractor.
10.1 Goods warranties. In relation to the goods Spa Guru warrants:
10.2 Service warranties. Spa Guru warrants that in relation to the services:
10.3 General Warranties. Spa Guru warrants further that:
10.4 Additional warranties. The warranties in this clause are in addition to any warranties given in any order.
11.1 Return of new goods in terms of statutory cooling-off period. Customer may return any goods in new condition with all packaging and materials. Spa Guru will refund the purchase price of the goods (minus the direct costs of returning the goods) within 30 days of the date of cancellation.
11.2 Repair, replace, refund defective goods. Spa Guru will repair, replace or refund the price of any defective goods returned during the statutory six month period after delivery of the goods. Defective goods are those that had a defect or were unsafe when Spa Guru supplied them. A defect usually means that the goods were manufactured using materials, components or workmanship below an acceptable standard. Customer must prove that goods are defective.
11.3 Extended warranty. After the six months statutory warranty has expired, Spa Guru offers an extended warranty for the goods. This means Spa Guru will repair the defective goods or replace them with new goods, as long as the defective goods are returned to Spa Guru within the extended warranty period. The period of any extended warranty depends on the particular goods and may cost extra. Spa Guru’s longest extended warranty is valid for six months after it supplied the Goods. Spa Guru’s right to inspect the goods and charge a fee for this also applies to claims under vendors extended warranty.
11.4 Choice of compensation. Customer may decide whether Spa Guru should either repair or replace the defective goods, or make a refund.
11.5 Flow-down warranties. Customer will have the same rights against Spa Guru as Spa Guru has against its supplier regards defects in the goods, the intention being that vendors liability to customer will be co-extensive with the right of recourse Spa Guru has against its supplier. Spa Guru will provide customer with a copy of any warranty on request. To the extent legally possible, Spa Guru assigns to customer the benefit of any supplier warranties that a supplier may give to Spa Guru regards the goods. Customer may not waive any of Spa Guru’s common law rights as against the supplier.
11.6 Additional warranties. The warranties in this clause are in addition to any warranties given in any Order.
12.1 Disclaimer. Use of the goods or services is at the sole responsibility and risk of each customer. Spa Guru provides the goods or services on an “as is” and “as available” basis. Except for the warranties given in the agreement and to the extent allowed by law, Spa Guru expressly disclaims all representations, warranties, or conditions of any kind, whether express or implied, including:
12.2 Exclusion of liability. Despite any warranty given by Spa Guru, Spa Guru will not be liable regards any defect arising from:
Customer warrants that:
13.1 it has not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;
13.2 by entering into an order customer is not acting in breach of any agreement to which customer is a party;
13.3 if customer requires Spa Guru personnel to use software owned or operated by customer, all necessary user licences have been obtained in advance;
13.4 the use of customer material by Spa Guru does not and will not infringe the intellectual property rights of any other person;
and customer agrees to indemnify, defend, and hold harmless Spa Guru (and those related to it and its personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own customer basis.
These are the default provisions and apply unless otherwise agreed in terms of an order:
14.1 Due Dates. Customer will be liable for and pay the price for the goods and fees for the services promptly on the due date for payment, without any deduction, set off or demand and free of exchange in the currency specified in the order.
14.2 Manner of payment. Customer must make payment in the manner specified in the order.
14.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. Customer must pay the surcharges and penalties to Spa Guru on-demand. Spa Guru may withhold or remove any goods or suspend the provision of any services until customer has paid all amounts that are due.
14.4 Interest on overdue amounts. To the extent permitted by applicable law, any amount not paid by customer on the date of the statement of outstanding invoices will bear interest for the benefit of Spa Guru, from the due date until the date customer pays it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of Spa Guru’s bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.
14.5 Appropriation. Spa Guru may appropriate any payment received from customer towards the satisfaction of any indebtedness of customer to Spa Guru under the agreement.
14.6 Withhold payment. Customer may not withhold payment of any amount due to Spa Guru for any reason.
14.7 Certificate. A certificate, signed by an accountant appointed by Spa Guru, of the amount due by customer and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.
14.8 VAT. All fees exclude VAT as Spa Guru is currently not registered for VAT. All fees also exclude other taxes, which will be payable where applicable by customer in addition to the fees.
14.9 Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the agreement.
14.10 Payment profile. Customer and any signatory consent and agree that Spa Guru may provide any registered credit bureau with information about the payment of amounts.
14.11 Expenses. Customer will reimburse Spa Guru for all reasonable expenses that Spa Guru or Spa Guru’s personnel incur in fulfilling Spa Guru’s obligations under the agreement. Expenses include travelling, subsistence, goods, and services purchased on customer’s behalf, communications, stationery, and report or presentation material. Spa Guru will bill for all travelling and subsistence expenses in accordance with Spa Guru’s standard policies from time to time.
14.12 Reimburse costs. If Spa Guru suspends the services or removes any goods supplied by Spa Guru, customer will pay to Spa Guru the costs incurred by Spa Guru (including redeployment, travel and associated expenses) in remobilising Spa Guru’s employees affected by the agreement and recommencing the services or re-installing the removed goods.
15.1 Definition. Where:
it will constitute a delay.
15.2 Notification. A party will notify the others of an event that has occurred or is anticipated and that:
15.3 Extension of time for performance. Spa Guru’s performance will be extended on a reasonable basis in proportion to the prejudice caused by the delay, provided that the extension is at least the number of days of the delay.
15.4 Proposals for delay.
If a delay arises, customer may instruct Spa Guru to submit proposals for different ways of dealing with the delay. Spa Guru will submit proposals to customer, which may set out a variety of methods for dealing with the delay that Spa Guru considers practical.
Proposals for addressing Delays will include proposed changes to the scope of work, prices and any delay to the date of performance assessed by Spa Guru.
Spa Guru will submit proposals within 14 calendar days of being requested to do so by customer and customer will reply to Spa Guru within three business days of the submission:
15.5 Assessing Delays.
The changes to the prices must be assessed with regard to the effect of the delay on:
A delay in performance is assessed as the length of time that, due to a delay, planned performance is later than originally indicated.
Spa Guru will include in Spa Guru’s proposal for a change to the scope proposed rates for its personnel.
15.6 Implementation. Spa Guru will implement each accepted proposal in accordance with the proposal’s terms.
15.7 Milestones. If an amount would have been payable to Spa Guru had it not been for a delay , customer will pay Spa Guru the amount, despite the fact that any milestone has been adjusted.
16.1 Customer material. Ownership in all customer material will continue to vest in customer whether under its control or not, and Spa Guru will not obtain any proprietary rights in customer material. The customer material is and will remain the property of the customer or its licensors. Spa Guru must not:
Customer grants to Spa Guru (and Spa Guru’s contractors as necessary) a perpetual, non exclusive, royalty free licence to use, reproduce and modify any customer material for the purposes of providing the goods or services or as directed by customer.
16.2 Existing material. Each party will own their existing material.
16.3 Retention of Rights. Spa Guru will own all right, title, and interest to Spa Guru know-how.
16.4 Use of Spa Guru know-how. If Spa Guru utilises any Spa Guru know-how in connection with Spa Guru’s performance under an order, Spa Guru know-how will remain the property of Spa Guru and customer will not acquire any right or interest in the know-how, and will not make the know-how available to any third party without Spa Guru’s prior written consent.
16.5 Deliverables. Except as provided to the contrary in the agreement, all right, title, and ownership to or of any deliverables are the sole property of or will vest in Spa Guru. All moral rights are reserved. Upon payment in full, Spa Guru grants customer a non-exclusive, perpetual, fully paid up license to use, reproduce and modify (if applicable) any deliverables in the form delivered to customer. The perpetual license applies only to deliverables that Spa Guru leaves with customer at the conclusion of the agreement and is only for customer’s internal business operations. Customer will not resell or distribute the deliverables to any third party. The parties may expressly agree to the contrary in any order.
16.6 Categorisation of intellectual property. When describing any intellectual property resulting from any services provided by Spa Guru pursuant to this agreement and any order the parties will use their reasonable efforts to specify their agreement as to whether the relevant intellectual property is customer intellectual property, Spa Guru know-how or third party intellectual property as provided for in this clause.
17.1 Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.
17.2 The receiving party's responsibilities. The party that receives confidential information agrees to protect the interests of the party that is disclosing it , and will:
17.3 End of this agreement. At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have, except for any copies of such confidential information that a party reasonably requires be kept for record-keeping purposes (including that a party is required to retain by law or in connection with actual or potential legal proceedings). If the other agrees, they may destroy the confidential information they have in paper based format. All confidential information in electronic format must be erased so that no data remanence is possible.
17.4 Exceptions. These responsibilities will not apply to any information that:
17.5 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.
No party will, during the currency of any order or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order.
19.1 Defence. Spa Guru will defend customer against any claims made by a third party that any goods or services infringes its patent, design, copyright, trade mark or other intellectual property right and will pay the amount of any resulting adverse final judgment (or settlement to which Spa Guru consents). Spa Guru will reimburse customer with all costs reasonably incurred by customer in connection with assisting Spa Guru with the defence of the action (including attorneys fees on an attorney and own customer basis). Customer will promptly:
19.2 Consequences of successful claim by third parties. If any third party succeeds in its claim for the infringement of any intellectual property rights, Spa Guru may within 30 calendar days of the infringing item having been found to so infringe:
19.3 Exclusion. Spa Guru will not be liable for any claim that arises out of goods or services
19.4 Survival. This clause will survive termination of the agreement.
20.1 Appointment. On the effective date, each party will appoint a suitably qualified and responsible person to act as their project manager. Function. The project managers’ responsibilities include to manage and coordinate the goods or services and to discuss and manage any changes.
20.2 Replacement. A party may, on seven calendar days’ written notice to the other, appoint an alternative project manager who is suitably qualified and responsible.
21.1 Correct faults. Spa Guru will correct any fault in the services where possible and as soon as reasonably practical and this is Spa Guru’s entire liability regarding any fault in the services. If this clause is held inapplicable or unenforceable, then the following clauses will apply.
21.2 Aggregate liabilty limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, each party’s maximum liability for direct damages for anything giving rise to any legal action will be an amount equal to in the aggregate for all claims thereunder –
it being agreed that each and every claim arising in connection with this agreement must reasonably be classified as being in respect of goods or services and no claim may be made unless and until so classified.
21.3 Indirect damages excluded. To the extent permitted by applicable law, in no event will a party be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind whatsoever and howsover caused (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from this agreement.
21.4 Exclusions. The limitation contained in clause 21.2 will not apply to (i) any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.
21.5 Spa Guru not liable for customer default. Spa Guru will not be liable for any loss or damage suffered by customer arising out of or in connection with any breach of the agreement by customer or any act, misrepresentation, error or omission made by or on behalf of customer or customer’s personnel.
21.6 Other goods or services. Spa Guru is not liable for any other goods, or service provided by any third party.
22.1 Breach. If a party does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so then the other party may, without prejudice to any of its rights:
22.2 Termination. In addition to each party’s right to terminate under the Customer Relationship Terms:
23.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to Spa Guru for services rendered before termination will become due and payable even if Spa Guru has not yet invoiced them. Customer may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
23.2 Duties on termination. On termination, cancellation, or expiry of this agreement:
23.3 No expectation. Spa Guru acknowledges and confirms that no expectation has been created by anyone, by the agreement or any other agreement, entitling Spa Guru or the personnel to expect:
24.1 Billing disputes. All unresolved payment disputes that concern only the amount invoiced (as opposed to whether any amount is payable or not) will, if required in writing by either party, be referred to a practising chartered accountant of at least ten years' standing (“accountant"). The accountant will be appointed by agreement between the parties and failing such agreement within give business days of the written notice for referral, either party may call upon the President of the South African Institute of Chartered Accountants or its successor body to nominate the accountant. The accountant will act as an expert and not as an arbitrator. The accountant will be requested to give his decision as soon as practicable and, in any event, by no later than five business days after the dispute is referred to the accountant. The accountant's determination shall be final and binding. The costs of the accountant will be borne by the parties in equal shares, unless otherwise agreed, irrespective of which party referred the dispute to the accountant.
24.2 Technical disputes. If agreed by the parties, any dispute of a technical nature (which includes a dispute relating to acceptance testing, commissioning and any deliverable), concerning the interpretation of any specifications or requirements or relating to the functions or capabilities of the services may be referred by the parties, together with reasons for referring the matter, to an independent technical expert for final settlement. The expert must be a person having appropriate expertise with respect to, but no interest in the outcome of, any matter referred to such expert and will be jointly appointed by the parties. The expert will be deemed to act as an expert and not as an arbitrator. The expert will be requested to give his decision as soon as practicable and, in any event, by no later than the business days after the date of receipt of its terms of reference. The decision of the experts will (in the absence of clerical or manifest error) be final and binding on the parties.
24.3 Failure to resolve. If the parties are unable to agree on whether a dispute is technical or not within five business days, or if they are unable to resolve a dispute in accordance with the foregoing, the dispute will be finally resolved by:
24.4 Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The dispute to be resolved by:
24.5 Negotiation. Any dispute which arises between the parties must first be referred to their chosen representatives who must meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days. All disclosures, concessions or admissions made by the parties during this dispute resolution process will be deemed to be made without prejudice, unless specifically stipulated otherwise in writing by a party in which case they may not be used in any subsequent proceedings which may arise between the parties.
24.6 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
24.7 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision). The parties will agree and appoint one arbitrator. The arbitration will be held in English. If the entity of Spa Guru involved in the dispute is South African, the arbitration will be in Cape Town under AFSA’s latest rules for expedited arbitrations.
24.8 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
24.9 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
24.10 Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
25.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the relevant order.
25.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.
25.3 Change of addresses or numbers. Each party may change the addresses or numbers in the relevant order to any other addresses or numbers by writing to the other party 14 days before the change.
25.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.
25.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
26.1 Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God. The delays of any third party contractors will not be considered a force majeure event.
26.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
26.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.
27.1 No Assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. Spa Guru may assign this agreement to any successor or purchaser of its business or some of its assets.
27.2 Exception. Despite this clause, Spa Guru may cede and assign all rights and obligations under this agreement to a related person without customers’ prior written consent, provided that Spa Guru notifies customer within a reasonable time of the event occurring.
27.3 Third party contractors. Spa Guru may sub-contract or delegate its obligations under this agreement to third party contractors. Spa Guru will remain liable for performance of the third party contractors . No one may require Spa Guru to disclose the terms (including payment terms) of any sub-contract entered into with respect to vendors obligations under this agreement.
28.1 No temporary employment service. Nothing in this agreement will be construed as constituting a temporary employment service.
28.2 No partnership. Nothing in this agreement will be construed as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
Spa Guru may provide any goods or services to any other person or entity. Spa Guru may exploit its intellectual property (including providing services or creating programming or materials for other customers or itself, providing services that are competitive with any deliverables, irrespective of their similarity to the deliverables), subject to its confidentiality obligations.
30.1 Entire agreement. The agreement is the entire agreement between the parties on the subject.
30.2 Changes. No change to this agreement is effective unless in writing and signed with a handwritten signature by authorised signatories of both parties.
30.3 Waiver (giving up rights). Any favour Spa Guru may allow customer will not affect or substitute any of Spa Guru’s rights against customer.
30.4 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.
30.5 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
30.6 Governing law and jurisdiction. This Agreement will be governed and construed according to the laws of the Republic of South Africa and the Customer agrees to submit to the exclusive jurisdiction of the South African courts.
30.7 Right to reference. Customer consents to Spa Guru using its name and a general description of the goods or services in any marketing or sales material.