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Terms of Service

WHEREAS, the Profy Technologies (Profy) is interested in providing fee-based support services to the Customer and the Customer is interested in receiving the services provided for in this Agreement. NOW, THEREFORE, in consideration of their mutual undertakings, and other good and valuable consideration, the parties hereby agree as follows:

I. STANDARD TERMS AND CONDITIONS: The Customer agrees to all provisions of Supplier’s Standard Terms and Conditions, which is herein incorporated by reference to this Agreement.

II. PRICING: The pricing for providing services under this agreement will include all of the Profy's supported products that the Customer has purchased. 

III. PAYMENT: Payment will be due in advance of the effective contract date. Payment for non-contract support services as specified will be due after those services are rendered.

IV. SERVICES PROVIDED: Support services provided by Profy under the terms and conditions of this agreement will be limited to issues relating to the current supported versions only. These services are provided on a best effort basis. If it is determined to be a non-contract support issue such as hardware, application, or operating system issue, the Customer agrees to pay the then prevailing non-contract per-incident fee. Some services provided under this Agreement will be preformed at a Profy Technologies support service location. If on-site services are requested and performed by the Profy, the Customer agrees that the services provided will be at the then prevailing non-contract rates or proposal rate.

I. Cooperation of the Customer. The Customer agrees to comply with all requests of Profy and to provide access to all documents and files necessary to the performance of the Profy's duties under this Agreement.

II. Specific Services. Profy Technologies agrees to provide telephone consultation, instruction, or support (including installation, setup, troubleshooting, and operational information) as it pertains to the qualifying software product.

III. Method of Performing Services. Profy will determine the method, details, and means of performing the above-described services.

V. CONTRACT TERM: This agreement will remain in force for a period of one (1) year from the effective date. The agreement will automatically renew for an additional one(1) year period at the then prevailing support contract rates, unless terminated by either party in writing 30 days prior to the renewal date. Payments are due prior to the actual renewal date. All incidents exceeding the amount purchased for the year will be billed at the current non-contract rate.

VI. ASSIGNMENT: The Customer may not assign any rights hereunder without the prior written approval by Profy, and any attempt to assign any rights, duties, or obligations hereunder without the Profy's written consent will be void. Profy Technologies may assign all or any part of its rights or obligations without the Customer’s consent.

VII. DISCLAIMER OF WARRANTY: PROFY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES PROVIDED HEREUNDER.

IX. LIMITATION OF LIABILITY: IN NO EVENT WILL PROFY TECHNOLOGIES BE LIABLE TO CUSTOMER OR ANY OTHER INDIVIDUAL OR ENTITY CONNECTED WITH CUSTOMER FOR ANY CLAIM, LOSS, OR DAMAGE OR ANY KIND OR NATURE; WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT. ANY INTERRUPTION OR LOSS OF SERVICE OR USE OF THE SOFTWARE, OR ANY FILES, DATA, OR OTHER COMPUTER SYSTEMS SHALL IN NO WAY CAUSE LIABILITY TO CUSTOMER. ANY SOFTWARE FAILURE OR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR LOSS OR DAMAGE OF ANY KIND OR NATURE RESULTING FROM THE FOREGOING, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SHOULD NOT BE ASSUMED BY PROFY TECHNOLOGIES.

X. PARTIAL INVALIDITY: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

XI. ARBITRATION: Any controversy between the parties hereto involving the construction or application of any of the terms, covenants, or conditions of this Agreement will, on the written request of one party served on the other be submitted to arbitration. The arbitration will comply with and be governed by the provisions of the CCMA. The parties will each appoint one person to hear and determine the dispute and if they are unable to agree, then the two persons so chosen will select a third impartial arbitrator whose decision will be final and conclusive on both parties. The cost of arbitration will be borne in such proportions as the arbitrators decide.

XII. ATTORNEYS' FEES: If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.

XIII. GOVERNING LAW: The parties hereby agree that any dispute regarding the interpretation or validity of, or otherwise arising out of, these standard terms and conditions for sale, or relating to the support hereunder shall be subject to the exclusive jurisdiction of the courts, and governed by the laws of South Africa without regard to that body of law controlling conflicts of law.

XIV. NOTICES: All notices and demands of any kind which Customer or Profy may be required or desire to serve upon the other under the terms of this Agreement shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth above (or at such different addresses as may be designated by either party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, and shall be deemed complete seven days after mailing. Notices sent to Supplier shall be addressed to the attention of "Legal Services."

XV. UNENFORCEABLE PROVISIONS: In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect, provided that in such event the parties agree to negotiate in good faith substitute enforceable provisions which most nearly effect the parties' intent in entering into this Agreement.

XVI. WAIVER: The failure of either party to enforce at any time, or for any period of time, the provisions hereof shall not be construed to be a waiver of such provisions or of the right of such party to enforce each and every such provision.