Electronic Supply Chain and Procurement Enterprise (Proprietary) Limited ("ESCAPE" or "we") conducts business as an online supplier database ("supplier database") which facilitates the registration and accreditation of vendors and suppliers on supplier databases of various ESCAPE clients via the internet ("the services").
ESCAPE makes the services and provides the information contained on this website or any of the pages comprising the website ("website") to you subject to the terms and conditions of use ("terms" or "conditions") set out herein. By entering the site, you unconditionally confirm that you have read, understood and agreed to be bound by the terms and you unconditionally undertake to comply with all applicable laws and regulations whilst using the website.
ESCAPE may at any time modify the terms and your continued use of the website will be subject to the terms in force at the time of your use. Accordingly you agree to review the terms periodically, and your continued access or use of the website and the services shall be deemed to be your acceptance of the amended terms of the website.
ESCAPE shall provide the infrastructure for the software. For this purpose, ESCAPE will make available a a server and mailbox for the utilising and sending of emails from the system. No guarantees will be provided for the server. Accordingly, ESCAPE shall not be liable for any such failure. No guarantees will be provided that any communication will be received by the intended parties, as a result of the infrastructure failing to deliver any communications due to data errors or any other reason. Accordingly, ESCAPE shall not be liable for any such failure.
ESCAPE will take reasonable steps for the backup strategy of the system and the implementation of this strategy. ESCAPE will ensure that regular backups will be provided. However, no guarantees are provided.
NON-AVAILABILITY OF THE SERVICE
It is acknowledged and agreed that service and the quality to the CLIENT shall be subject to the availability of the system and the infrastructure that it is installed on and as a result thereof, the services and service levels may from time to time be adversely affected.
Accordingly, a CLIENT shall not hold ESCAPE, any of its employees, directors or agents liable for any non-availability of the services as a result of infrastructure failure; and ESCAPE shall not be in breach of this agreement if it fails to comply with the service levels specified in this agreement as a result of the non-availability or interruption of the service.
If there are bugs or malfunctions within the functionality of the software, ESCAPE will endeavour to resolve the software fault within eight (8) working hours from the time of written notification. If the software fault cannot be resolved within that specified time frame, ESCAPE will notify the CLIENT in writing.
Where there is data loss as a result of ESCAPE’S actions, ESCAPE will endeavour to recover this data within twenty four (24) working hours upon receipt of the backup data and availability of the infrastructure.
For all other data loss, the associated costs and conditions with respect to recovering the data will be quoted on at that time.
SOFTWARE AND LICENCE FEES
All once off software cost and associated licence fees; or annual subscription fees is purchased as an organisational licence for use by the CLIENT only and is subject to the type of database implemented. A type of database is dependent on the procurement environment and/or industry that the system is configured for and additional software costs will apply for any additional types of databases.
The initial once off cost/subscription fee will be billed on commencement of the project and commencement will be dependent on full payment thereof.
The CLIENT can upon written notification extend modules and/or user licences together with any additional associated services at any point in time. For these, the difference between the software and service costs will be quoted as and when required basis.
For the Software-as-a-Service (SaaS) Licence Model, all ESCAPES’s software rental is subject to an Annual SaaS (Software-as-a-Service) Subscription Fee. The Annual SaaS Subscription Fee is subject to an annual escalation based on 5% per year after the first year of purchase.
The Annual Software Licence Fee/Annual SaaS Subscription Fee is due annually in advance from the invoice date of the initial subscription/licence. Failure to renew the Annual Software Licence Fee/Annual SaaS Subscription Fee will result in read-only access to the software for a period of 3 months and termination of all associated services. The software will no longer be available thereafter. The Annual Software Licence Fee/Annual SaaS Subscription Fee includes standard software maintenance and system upgrades within the version.
TERMINATION OF THE SERVICE
If this agreement is terminated for any reason, at any time, and the parties fail to enter into an agreement for the purchase or licence of the software, the CLIENT shall forthwith cease to use the software and shall at its cost immediately return to ESCAPE the software and any materials provided by ESCAPE to the CLIENT pursuant to this agreement.
Should any invoice age over 120 days, ESCAPE has the right to terminate any service and render the software offline. If such invoices are still not paid after 30 days, the CLIENT shall forthwith cease to use the software and shall at its cost immediately return to ESCAPE the software and any materials provided by ESCAPE to the CLIENT pursuant to this agreement. ESCAPE will also have the right to recover any costs incurred as a result or to re-instate to software and/or services.
OWNERSHIP OF DATA
The data will be the proprietary of the CLIENT. Upon termination of this contract, ESCAPE will provide the data electronically in an appropriate format.
With respect to vendor support, certain vendor information will be downloaded and imported into ESCAPE’s call centre for ease of administration. The vendor will also be given the option of being notified of other supplier databases for the purposes of registration. ESCAPE may use the vendor contact data for sourcing vendors for other clients. The vendor will also be given the option of providing ESCAPE access and use of their data.
Should ESCAPE operate a centralised repository of vendors, ESCAPE reserves the right to migrate vendor’s data and document to and from the CLIENT’s system to the centralised repository provided that the vendor provides permission to do so.
This contract shall commence from the initialisation of the software on a year-by-year basis and can be cancelled by a 30 day written notice.
Delay or failure to comply with or breach of any of the terms and conditions of this contract, if occasioned by or resulting from an act of God, or public enemy, fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot strikes, blockade, embargo, sanctions, epidemic, act of any government or other authority, compliance with government orders, demands or regulations or any circumstances of like or different nature beyond the reasonable control of the party so failing ("force majeure"), will not be deemed to be a breach of this contract nor will it subject either party to any liability to the other.
Should either party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (thirty) days, the parties will consult with each other regarding the future implementation of this contract. If no mutually acceptable arrangement is arrived at within a period of 30 (thirty) days thereafter, either party will be entitled to terminate this contract forthwith on written notice.
LIMITATION OF LIABILITY
ESCAPE shall not be liable for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, based on the claims of the CLIENT (including, but not limited to, claims for loss of data, goodwill, profits, use of money, software or hardware, interruption in use of availability of data or software or hardware, stoppage or other work or impairment of other assets), arising out of breach or failure of expressed or implied warranty, breach of contract, misrepresentation, negligence, strict liability in delict or otherwise, whether based on this contract, any commitment performed or undertaken under or in connection with this agreement, or otherwise. ESCAPE, its sub-contractors, directors, employees, agents and independent contractors shall not be liable to the CLIENT or any third party for any loss, liability, damage (whether direct or indirect, consequential or otherwise and whether for loss of profits, revenue, data or goodwill) or expense of any nature whatever which may be suffered by the CLIENT or such third party as a result of or which may be attributable, directly or indirectly, to: the use by the CLIENT of any information furnished to it by ESCAPE; any mistake, error or omission of ESCAPE; any failure to deliver or in any manner communicate any information to the CLIENT; any breach by ESCAPE of any of its obligations under this agreement or out of any other cause whatever, and the CLIENT hereby indemnifies ESCAPE against any claim of whatever nature which may be made against ESCAPE arising out of the aforegoing. The provisions of this clause shall apply notwithstanding any negligence or wilful default on the part of ESCAPE.
The parties shall not disclose to third parties any confidential information relating to the business or affairs of the other party (including the vendors on the system), which come into their possession as a result of this contact. It will be a breach of this contract if either party fails to take reasonable steps to protect the confidentiality of such information or holds it in a way in which a third party may access it.
INTELLECTUAL PROPERTY RIGHTS
The copyright and all other intellectual property rights of whatever nature in the Sigma Link or any software owned by ESCAPE, any other modifications or changes thereto (and all patents, trademarks and copyrights relating thereto) are and shall remain the property of the ESCAPE. No title to, or ownership of the Sigma Link is transferred to the CLIENT. The CLIENT shall not at any time or in any way question or dispute the ownership of the Sigma Link or any software used by ESCAPE in terms of this agreement of ESCAPE and undertakes not to infringe or prejudice any rights of ESCAPE in and to the Sigma Link, the software and the service. The CLIENT shall not be entitled to use the service and the software for any other purpose save for what is stated in this contract. No third party shall under any circumstances whatsoever be entitled or authorised to use the service and the software associated with the service without ESCAPE's prior written consent. The CLIENT shall not permit unauthorised third party access, use or interference with or to the service and the software associated with the service without ESCAPE's prior written consent. The CLIENT shall not (and shall not allow any third party to) make any unauthorised copies or attempt to modify or adapt, disassemble, decompile, recreate the Sigma Link and any software used by ESCAPE to provide the service or its parts or create derivative works of or in any way reverse engineer the software.
Should any party ("the defaulting party") breach any of its obligations in terms hereof and persist in such breach for a period of 14 (fourteen) days after written notice will have been given to it by another party ("the aggrieved party"), the aggrieved party shall be entitled without prejudice to any rights which it may have in terms hereof or at law, to an order for specific performance and damages as against the defaulting party; or cancel this contract and claim damages from the defaulting party.
Any amount falling due for payment by any party in terms of or pursuant to this contract including any amount which may be payable as damages shall bear interest thereon at the prime rate of interest of (insert bank) and reckoned from the due date for payment (or, in the case of any amount payable by way of damages, with effect from the date upon which those damages are sustained) to the actual date of payment thereof, both dates inclusive.
The parties acknowledge and agree that:
This SLA constitutes the entire SLA between them and that no provisions, terms, conditions, stipulations, warranties or representations of whatsoever nature, whether express or implied have been made by any of the parties or on their behalf except as are recorded herein;
No relaxation, extension of time, latitude or indulgence which any party ("the grantor") may show, grant or allow to another ("the grantee") shall in any way constitute a waiver by the grantor of any of the grantor's rights in terms of this agreement and the grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the grantee which may have then already arisen or which may arise thereafter;
No alteration, variation, amendment or purported consensual cancellation of this SLA or any deletion there from shall be of any force or effect unless reduced to writing and signed by or on behalf of the parties hereto;
They have undertaken to each other to do all such things, take all such steps and to procure the doing of all such things and the taking of all such steps as may be necessary, incidental or conducive to the implementation of the provisions, terms, conditions and import of this agreement.