1. Definitions
In these terms, the following terms have the meanings assigned to them and cognate expression shall have similar meaning:
1.1
“Participant” means the registered company or person representing the registered company
1.2
“Effective date” means the registered company or person representing the registered company
1.3
“M2N” means the company IRJ Software cc, trading as M2North Participants and M2N are hereinafter singly referred to as
“Party” and collectively referred to as “Parties”
1.4
“Escalation Index” means the year on year increase, inline with M2North’s CPI/PPI calculation.
1.5
“Operational hours” means twenty four hours per day, seven days per week less hours required for planned maintenance;
2. Participation agreement
With effect from the effective date, M2N hereby grants to the participant access to it’s online sourcing system subject to the following terms and conditions, herein contained. M2N will provide the participant with login credentials to access M2North’s online portal. The participant hereby acknowledges receipt of such access and agrees -
2.1
that access will be used only for the Participant’s business purposes;
2.2
not to give or make available in any way its login credentials to any other person for unauthorised use and undertakes to maintain the confidentiality of such login information;
2.3
not to attempt to circumvent M2North’s user authentication processes or engage in attempts to access M2North’s computer network where not expressly authorised to do so;
2.4
that in the event that the Participant’s Password is compromised or lost, the Participant shall immediately notify M2N and change its Password; and
2.5
that the Participant shall be liable for all acts undertaken on the System using its Log-in ID, irrespective of whether such acts arose out of unauthorised use or not, and the Participant hereby indemnifies M2N against any loss which the Participant may suffer due to any unauthorised use.
3. Duration
This Agreement shall commence on the Effective Date, provided proof of payment, or details for debit order are submitted and shall continue thereafter on a month to month basis. The agreement will continue until such time as either Party terminates the agreement according to termination terms found in section 4.
4. Termination
4.1
The Participant reserves the right to terminate the agreement when -
4.1.1
The participant no longer wishes to subscribe to the services for whatever reason. This is subject to no less than 30 days written notice to M2N. Termination requests will only be valid when the request is supplied on the Participants official company letterhead and sent to accounts@m2north.com
4.1.2
M2N Breach. Should M2N commit any material breach of this Agreement and fail to remedy such breach within 7 (seven) days of receipt of written notice from the Participant calling upon it to do so, the Participant may, without prejudice to any rights that it may have in law, suspend the operation of this agreement until such time as the breach has been rectified by M2N.
4.2
M2N reserves the right to terminate the agreement when -
4.2.1
Participant’s breach. Should the Participant commit any material breach of this Agreement and fail to remedy such breach within 7 (seven) days of receipt of written notice from M2N calling upon it to do so, then M2N may, without prejudice to any of its rights that it may have in law, including the right to claim damages:
4.2.1.1
immediately suspend the Participant’s access to the System until such time that the breach has been rectified to the satisfaction of M2N;
and/or
and/or
4.2.1.1
immediately terminate this Agreement and retain all monies already paid by the Participant
4.3
Termination of this Agreement by either party hereto for any reason whatsoever will not result in any refund of any payments or fees made by the Participant in terms of this agreement.
5. System Availability
M2N shall use its reasonable endeavours to deliver a sustained and reliable level of system availability that enables the Participant to achieve its objectives within the scope of the products and services provided. M2N anticipates an available time of 99% of operational hours in each calendar month. However, the Participant acknowledges and agrees that interruption to the service may be occasioned by planned or emergency maintenance from time to time, as well as any incidents arising as a result of:
5.1
downtime caused by third parties not appointed by or under the direct control of M2N;
5.2
downtime due to Force Majeure or other reasons not within the control or responsibility of M2N;
5.3
downtime due to the Participant not meeting the Participant’s Obligations.
The Participant shall have no claim against M2N for any interruption to the service/system arising from any of the aforesaid eventualities.
6. Security
In order to ensure the security and reliable operation of M2North’s System, M2N hereby reserves the right to take whatever action M2N deems necessary to preserve the security and reliability of its System and ensure the confidentiality, integrity and availability of customer data and documents sent as electronic messages across M2N.
The Participant acknowledges that it is prohibited from utilising M2North’s System to compromise the security or tamper with system resources or accounts on computers at M2N, or at any other site. Information will only be displayed to registered users and only information relevant to the Participant can be accessed. M2N shall utilise all reasonable measures to secure the integrity and security of the Participant’s data at all times.
7. Performance
7.1
Speed of response is calculated as the time from the point at which a user of an application clicks the button on a page to trigger certain functionality to the point at which the page refreshes or the next page is displayed. The Participant acknowledges and agrees that no specific Service Level is offered, since the number of permutations specific to each page and each user’s connection to the web-based applications make generic measures impossible. M2N will design and publish the applications to perform in a manner that is generally accepted as usable for a user connecting via a standard web browser. Performance will be influenced by user line speeds. M2N will ensure applications are compatible with internet browsers current version release, as well as 2 version preceding the current version.
7.2
The monthly subscription gives you access to the M2N network and services, but does not guarantee a specific number of requests or transactions per month i.e. you are purchasing the opportunity to do more business.
7.3
M2N is not responsible for service delivery and relationships between suppliers and buyers.
8. Fees and Payment
8.1
Fees. The fees are set out in the original registration form, as varied from time to time in terms of clause 8.3. Payment may be effected by one of the payment methods elected by the Participant on initial registration, and may be changed from time to time by notifying M2N in writing with one (1) calendar months notice.
8.1.2
EFT. Payments made by Electronic Funds Transfer are to be paid into the bank account of M2N only.
8.1.2
Debit Orders. Debit orders will commence in the first week of the month following the effective date. Debit orders will run monthly.
8.2
Taxes. All fees due by the Participant in terms of this Agreement are stipulated exclusive of any and all taxes (including value added tax), duties, tariffs and/or levies where applicable.
8.3
Escalation of fees. The parties agree that fees may, each year escalate as contemplated in clause 1.5 by the Escalation Index.
8.4
Invoices. Invoices are issued monthly and are payable within 30 days of invoice date.
8.5
Electronic Invoicing. The Participant consents to electronic invoicing for which the accounts email address on the registration form will be used, unless M2N is otherwise instructed by the Participant in writing.
8.6
Statements. In the event of M2N providing statements with regard to outstanding invoices, the Participant shall be obliged to review them whether they are correct. In the event that - notwithstanding a respective reference in the account statement - the Participant fails to notify any discrepancies in writing within a period of ten (10) days, the receivables as calculated in the statement shall be deemed acknowledged.
8.7
Overdue invoices. M2N shall be entitled but not obliged to have the invoiced amounts, which have not been received by M2N within five (5) days after their due date, debited by means of direct debiting including any costs and interest. The same shall apply to all further receivables of M2N which have become due and payable on the basis of the Participants arrears of payments
8.8
Any Payments shall be set off, first, against costs, then against interest and - as soon as they are settled - against the principal claim
8.9
Arrears. If the Participant falls into arrears in whole or part with his payment commitments to a significant extent and for a period exceeding ten (10) days, then the payment deadlines originally granted to the Participant shall be reduced to seven (7) days as of the date of invoicing. This forfeiture of the originally agreed period for payment shall apply to all claims (receivables) of M2N against the Participant until the day of forfeiture and their complete payment. If payment is made after the due date, M2N reserves the right to charge the Participant interest at a rate of the prime lending interest rate of South Africa at the time of the invoice. Prior to the complete payment of invoiced amounts due including costs and interest or in case of unjustified refusal of acceptance by the Participant, M2N shall not be obliged to effect any further delivery of service under the agreement.
8.10
Fees are paid monthly in advance
9. Intellectual Property rights and Indemnity
9.1
Ownership. The Participant acknowledges that it obtains no ownership rights or claims to any intellectual property rights whatsoever, including without limitation, any rights to the System, by virtue of this Agreement.
9.2
Indemnity. The Participant agrees to indemnify M2N against all damages, liabilities, costs and expenses which M2N may incur or sustain, arising from the use of any material or data provided by or on behalf of the Participant, including such reasonable legal costs actually incurred by M2N in defending any such suit on the attorney and own client scale.
9.3
Licence. The Participant hereby grants a licence to M2N, without charge, to use its intellectual property rights to the extent necessary for the purpose of this Agreement.
10. Limitation of Liability
10.1
Aggregate Liability. Irrespective of the number of claims and the basis of such claims, each party’s maximum aggregate liability to the other in connection with this Agreement for any direct damages or losses, whether such claim arises in contract, delict or otherwise, shall not exceed a sum equal to the amount actually paid in fees by the Participant for the service in terms of this Agreement, during the immediately preceding 6 (six) months.
10.2
Consequential damages. Neither party shall be liable for any indirect or consequential loss or damages, including, without limitation, loss of business, data, profits, revenue or anticipated savings howsoever arising, suffered by the other party and arising in any way in connection with this Agreement or the termination of this Agreement or for any liability of the other to any third party.
10.3
Exclusion. The limits contemplated in this clause shall not apply in respect of any liability of the Participant under any indemnity given by the Participant to M2N in terms of this Agreement.
11. General Clauses
11.1
Notices And Domicilium. The parties choose as their domicilia citandi et executandi their respective addresses set out on the registration form for the purposes of giving any notice (where not specified otherwise in these terms), the serving of any process and all other purposes arising from these terms.
11.2
Governing Law and Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa. Each party hereby irrevocably consents to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by the other party arising out of these terms, provided that the claimant shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa.
11.3
Whole Agreement. These terms constitute the whole Agreement between the parties as to the subject matter hereof.
11.4
No indulgence. No indulgence, leniency or extension of time which either party may grant or show to the other party, shall in any way prejudice such party or preclude such party from exercising any of its rights in the future.
11.5
Assignment. The Participant shall not cede any of its rights nor delegate any of its obligations hereunder.
11.6
Variation. M2N reserves the right to amend and update these terms and conditions contained herein from time to time as perceived necessary by M2N and it is the responsibility of the Participant to ensure they are up to date with any amendments made.
11.7
Neutral construction. The rule of construction that the Agreement shall be interpreted against the party responsible for the drafting or preparation of the Agreement, shall not apply.
11.8
Issued in accordance with the standard terms and conditions of M2N available at www.m2north.com/terms
