Tel. +27 0861 26 26 24  |   Fax. +27 0866 27 34 33  |  Email.  info@b-logic.co.za  |  Web. www.b-logic.co.za

Address. West Wing, Oak Leaf Terrace, Old Oak Office Park, cnr Durban & Old Oak Road, Bellville, Western Cape, South Africa

Standard Terms and Conditions

INDEX

1. Introduction

1.1 These terms regulate the (i) agreement between B-Logic and customer when B-Logic supplies goods or services to customer and (ii) use of the website by any user, whether a customer or not.

1.2 By using the goods or services or visiting the website, you agree to be bound by these terms.

 

 

2. Definitions and Interpretation

2.1 Unless the context otherwise indicated, the following expressions shall have the meanings given to them hereunder:

2.1.1 “act” means the Electronic Communications Act No. 36 of 2005;

2.1.2 “addressee” means the party to whom any notice is given and/or any payment is made;

2.1.3 “affiliate” means, with respect to either party, any other entity which is a subsidiary or a holding company or a “subsidiary” and “holding company” shall have the meaning assigned thereto in section 1 of the companies act no 71 of 2008, but shall include any foreign entity which, had it been registered in terms of that act, would fall within the ambit of such term;

2.1.2 “agreement” means the general terms and conditions, including all schedules and annexures hereto, together with    the orders and acceptable use policy which are incorporated herein by reference;

2.1.2.1 “business day” means Monday to Friday, excluding public holidays published as such in the government gazette;

2.1.3 “business hours” means from 08h00 to 17h00 South African time, on business days;

2.1.4 “charges” means MRC, NRC, usage fees and any other charges payable under this agreement;

2.1.4.1 “contract term” means the term of the applicable services as set out in the applicable service order;

2.1.7 “customer device” means the equipment which is either leased or purchased from  B-Logic by the customer and used in order to access the service/s;

2.1.8 “effective date” means the date of signature of this agreement;

2.1.9 “goods” means the any IT goods, including but not limited to hardware and software that  B-Logic provides to customer in terms of an order;

2.1.10 “intellectual property” means all intellectual property rights, including but not limited to any domain names, know-how (not in the public domain); invention (whether or not patented); design, trademark, copyright material (whether or not registered), material eligible for copyright in terms of applicable legislation trade or business names, trade secrets or any similar rights to any of the above rights that may subsist in South Africa or elsewhere, whether or not such rights are registered or capable of being registered;

2.1.11 “MRC” or “monthly recurring charge” means the monthly charges for the services as set out in the applicable service order;

2.1.12 “NRC” or “non-recurring charge” means the installation fee for the services as set out in the applicable service order;

2.1.13 “order” means a goods or services order, which ever applies, that sets out the commercial terms for the provision of goods or services by B-Logic to the customer;

2.1.14 “party” means either B-Logic or the customer and “parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns’;

2.1.15 “personnel” means any director, employee, agent, consultant, contractor or other         representative of a party;

2.1.16 “premises” means the premises where B-Logic provides the services;

2.1.17 “services” means any  services that B-Logic provides to the customer in terms of an order;

2.1.18 “services commencement date” means the date specified in the service order;

2.1.19 “service levels” means the levels according to which B-Logic will provide the service as agreed by the parties in the order;

2.1.20 “service credits” means the service credits due to the customer for unscheduled downtime, calculated in accordance with the relevant service order;

2.1.21 “SO” or “service order” means the order setting out the details of the services requested such as quantities, fees, service levels and charges payable.

2.1.22 “site” means the customer’s site, the B-Logic system or any other system being used by  B-Logic for purposes of fulfilling its obligations in terms of the agreement;

2.1.23 “system” means the data centre and equipment including without limitation servers, peripherals,  routers, switches, software, databases, cables, generators, and uninterruptible power supplies which are operated together as a system by B-Logic in providing a service;

2.1.24 “third party contractor” means the contractor, supplier, or licensor (which ever applies) of any goods or services, but which is not a party to this agreement;

2.1.25 “website” means www.b-logic.co.za;

2.1.26 “mCentral” means a remote monitoring and management (RMM) platform.

 

 

3. Interpretation

3.1 Any reference to days shall be interpreted to be a reference to a calendar day unless qualified as a business day.

3.2 When any number of days is prescribed, the number of days shall be calculated on the basis that the first day is excluded and the last day is included, provided that if the last day is not a business day, the last day shall be the ensuing business day.

3.3 Inclusion of the words “including” or “excluding” followed by examples or items following the term be illustrative only and will not limit its ambit or application.

3.4 Terms other than those defined will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communication technology industry will be interpreted in accordance with their generally accepted meanings.

 

 

4. Introduction

4.1 The customer hereby appoints B-Logic to provide the services, subject to the terms and conditions contain in this agreement, which appointment  B-Logic accepts

4.2 B-Logic shall be entitled to appoint any of its affiliates to provide the service on written notice to the customer to such effect, provided that B-Logic shall be and remain liable with such appointee for the performance by it of all of its duties, functions and obligations under this agreement.

 

 

5. Commencement and duration

5.1 This agreement shall commence on the effective date and shall thereafter remain in force indefinitely, subject to the remaining provisions of this Agreement.

5.2 The commencement of the services to be provided shall be in terms of each individual service order that is completed by the customer and will be effective from the service commencement date for the contract term specified in the in the service order.

5.3 Upon the expiration of the initial period, the applicable services will continue indefinitely, subject to either party providing 90 (ninety) calendar day’s written notice of termination to the other party.

 

 

6. Goods and services

6.1 B-Logic will sell the goods and provide the services to customer in terms of the agreed order, alternatively if no order is agreed, as described and specified on the website.

6.2 If B-Logic supplies goods that are accompanied with software, the use of the software will be regulated by a license agreement between the customer and the owner or licensor of the software, which agreement will constitute a separate agreement between the customer and the owner or licensor of the software. B-Logic will not be a party to this license agreement.

6.3 In order to provide certain services, B-Logic makes use of third party contractors and service providers. The customer expressly agrees to this. The relationship between the third party contractor and B-Logic in these instances will be regulated contractually and the customer shall not be a party to these agreements. These third party contractors will have the same rights that B-Logic has in terms of this agreement in order to deliver the service.

6.4 The customer expressly gives its permission and authorises B-Logic to remotely access its data, network, system, software, hardware or do whatever is required to fulfil its obligations and render the services in terms of the agreement.

 

 

7. Provision of Services

7.1 B-Logic agrees that it will from the effective date, and thereafter continue throughout the duration of this agreement, supply the services as requested by the customer from time to time, in accordance with the terms and conditions of this agreement.

7.2 For the duration of this agreement, the customer shall obtain the services as it requires from B-Logic in terms of this agreement and the service order concluded from time to time.

7.3 B-Logic shall not be under any obligation to supply any services to the Customer until a service order in respect of the required services has been signed by the customer.

7.4 In order to provide the services, B-Logic reserves the right to utilize any technology available and which it considers at its discretion as the most suitable and responsible to provide services.

7.5 The services shall be used by the customer in accordance with the terms and conditions of this agreement.

7.6 Each service order shall constitute an agreement between the parties subject to and regulated by this Agreement.

 

 

8. Orders

8.1 No terms or conditions of a customer’s order that are in conflict with this agreement will be binding.

8.2 Depending on the service in question, a customer must either place an order online or request a quote from, B-Logic.

8.3 If the particular service requires from B-Logic to provide a quote to the customer first, the customer needs to confirm acceptance of the quote either in writing to sales@b-managed.co.za or by ticking the confirmation button online, whichever one applies, where after the customer needs to place an order in the prescribed manner stipulated on the quote.

8.4 Any order placed by a consumer, whether it is online or otherwise, is an offer to B-Logic to enter into the agreement with the customer.

 

 

9. Ownership and risk

9.1 Risk in the goods will pass on delivery.

9.2 Ownership in the goods will only pass once the full payment for the goods have been received.

9.3 The customer will bear the risk in all goods supplied by , B-Logic as well as any customer hardware or equipment that will come under the control of B-Logic , whether at B-Logic’s premises or otherwise. It is the customer’s responsibility to ensure that these goods, hardware and equipment are adequately insured at all times.

9.4 The customer will be responsible for the maintenance of all the data passing over the B-Logic infrastructure and must ensure that adequate and systematic backups are made regularly. B-Logic will accordingly not be liable for loss of the customer’s data, restoration of lost data or any other as a result of the customer not complying with this clause 9.4

 

 

10. Delivery and installation

10.1 Any delivery date provided to a customer is an estimate date only and B-Logic shall make all reasonable efforts to deliver on the estimate date.

10.2 If B-Logic is not able to deliver on the estimate date, B-Logic will take all reasonable measures to inform the customer timeously of the delay in delivery.

10.3 Should the customer assist with the installation of any goods or services, including software, B-Logic will not be liable for any damage caused or losses suffered as a result of the customer’s assistance with the installation.

10.4 Should B-Logic charge the customer any delivery charges, B-Logic will quote for this upfront and all deliveries will be payable in full as specified on the quote, before delivery of the goods.

 

 

11. Fees and payment

11.1 The customer shall be liable for and shall pay the fees and/or charges agreed between the parties in respect of the goods and/or services as set out in this clause or in the applicable service orders for the term of the agreement.

11.2  B-Logic may include on any invoice any amount not previously billed for calendar months prior to the current month.

11.3 Fees are payable in South African Rand without deduction or set-off for any reason and each order will constitute a separate agreement between the parties.

11.4 Unless otherwise agreed in the order, the customer shall have the option to pay via EFT or debit order authorisation. Should the customer choose to pay by EFT, B-Logic shall have the right to request the customer to sign a debit order authorisation in the event of a customer failing two or more times to pay within 3 days after the due date. Should the customer refuse to sign this debit order authorisation, B-Logic will be entitled to cancel the agreement without any prejudice to any other rights in law or contractually.

11.5 The customer agrees to B-Logic rendering electronic invoices.

11.6 Unless otherwise agreed in the order, all monthly fees payable for services shall be invoiced by B-Logic monthly in advance and are due on or around the 1st day of each month.

11.7 B-Logic may invoice pro-rata portions of monthly fees for services where an agreement commences on a day other than the first of the month.

11.8 Any services supplied on a times and materials basis, as indicated in the order, shall be billed monthly in arrears and shall be payable within 30 days from statement.

11.9 The customer may not withhold payment of any amount due to B-Logic for any reason, including an alleged breach of contract by B-Logic.

11.10 Should any amount invoiced be disputed, the customer shall not be entitled to withhold any such amount pending resolution of the dispute and any dispute will be referred to arbitration in accordance with clause 24.

11.11 Fees and charges not settled in terms of the agreement will bear interest at the prime rate of Investec Bank Limited, such interest to be calculated from the due date of payment to the date of actual payment, both days inclusive, calculated daily and compounded monthly in arrears.

11.12 The prime rate as certified by any manager of Investec Bank Limited will apply and the manager’s appointment and authority shall not need to be proved.

11.13 The customer shall reimburse all reasonable expenses authorized by customer and as are properly incurred by  B-Logic and  B-Logic’s personnel in fulfilling B-Logic’s obligations in terms of the agreement, including but not limited to goods and services purchased on the customer’s behalf, communications, stationery, report and presentation material, travelling and subsistence expenses  as invoiced. Customer will not withhold authorization unreasonably.

 

 

12. Fixed Charges

12.1 Subject to Clause 12.2 and 12.3, the monthly fees and charges set out in each of the applicable service orders shall be fixed for the duration of the Contract Term.

12.2 B-Logic shall be entitled to adjust the monthly fees and charges in the event of any regulatory, or government imposed factors impact on such fees and charges.

12.3 B-Logic shall be entitled to review the monthly fees and charges for Session Initial Protocol (SIP), and other Telco voice carrier-class services from time to time and will provide the Customer with thirty day (30) days written notice to effect any fee adjustments as may be applicable.

 

 

13. Security

13.1 B-Logic shall institute all reasonable security measures to safeguard the premises and system.

13.2 The customer must follow all  B-Logic’s security instructions, including but not limited to advise B-Logic in writing of any security violation or imminent violation and indemnifies B-Logic  against any loss, harm or damage suffered by B-Logic, including third party claims, arising out of any breach of security caused by the acts or omissions of the customer or its personnel.

13.3 In the event of a security violation, or If B-Logic, in its sole discretion, determines that a security violation is imminent, B-Logic may take whatever steps it deems necessary to protect its system and/or the premises, including without limitation:

13.3.1 changing the customers’ access codes and passwords;

13.3.2 temporarily preventing access to the customer’s account or system;

13.3.3 preventing access to the system and/or premises;

13.3.4 relocating the customer’s site;

13.4 The customer shall give reasonable cooperation in any investigation may be carried out by B-Logic relating to a security violation

13.5 It is the customer’s responsibility to ensure that it keeps all information relating to its account secure. B-Logic will respond to all customer activity until such time as a customer has informed B-Logic of a security violation.

 

 

14. Access to premises

14.3 Depending on the service, B-Logic may grant the customer and its personnel access to the premises for purposes of the service.

14.4 The customer shall take all reasonable steps to ensure that no unlawful access is granted to the premises.

14.5 B-Logic shall be entitled to search any person entering or leaving the premises and to inspect any accompanying goods.

14.6 When accessing the premises or site, the customer shall keep and maintain the premises and site tidy and return it in the same state received.

 

 

15. Intellectual Property Rights

Unless otherwise agreed, nothing in the agreement will be construed as assignment of any copyright or other transfer of any intellectual property rights.

15.1 The customer agrees to defend and hold B-Logic harmless from all losses, or liability arising in any way from the customer infringing the intellectual property rights of third party contractors.

15.2 The customer agrees to comply with all license or other terms of third party contractors that supply goods or services for use in conjunction with the goods or services provided by B-Logic.

 

 

16. Privacy and monitoring

16.1 B-Logic recognises the right to privacy.

16.2 The customer agrees that B-Logic will have no duty to monitor the data transmitted through the system, but may monitor the system and site for operational purposes and to comply with applicable legislation, including but not limited to:

16.2.1 the Regulation of Interception of Communications and Provision of

Communication- related Information Act (Act 70 of 2003);

16.2.2 the Film and Publications Act (Act 65 of 1996);

16.2.3 The Electronic Communications and Transactions Act (Act 25 of 2002).

16.3 B-Logic will at times comply with the applicable legislation.

16.4 If B-Logic in its sole discretion determines any customer data or content available on the system to be in violation of the Acceptable use policy, or if B-Logic receives a take-down notice from ISPA, B-Logic may terminate or suspend the service in accordance with clause 17.

 

 

17. Suspension of services

17.1 B-Logic will be entitled to suspend the service with immediate effect and without notice if:

17.1.1 the customer has failed to make payment in terms of the agreement after receiving 14 (fourteen) days’ written notice from B-Logic ;

17.1.2 the customer has committed any other material breach and failed to rectify it (if it is possible to rectify) within 14 (fourteen) days of receiving written notice from B-Logic ;

17.1.3 there is a security violation or imminent security violation of the system or website;

17.1.4 emergency maintenance, as determined by B-Logic in its sole discretion is required;

17.1.5 it is necessary to comply with the law;

17.1.6 It receives a take-down notification from ISPA and the alleged conduct is in contravention of the B-Logic Acceptable Use policy.

17.2 B-Logic will be entitled to suspend the service and will endeavour to provide reasonable notice if routine maintenance, repair or the like is required, which maintenance B-Logic shall endeavour to perform at times of low traffic volume.

 

 

18. Warranties

18.1 Except as specifically provided for in the agreement, B-Logic excludes all warranties.

18.2 B-Logic warrants that it has the infrastructure, capacity and personnel to provide the service in a workmanlike manner and in accordance with acceptable industry standards.

18.3 Despite this warranty, the services are provided "as is" and "as available" and without any further express or implied warranty of any kind, including warranties of fitness for purpose, non-infringement, non-compliance with legislation in the applicable jurisdiction.

 

 

19. Indemnity

19.1 Subject to clause 20  B-Logic will not be liable for any loss or damage whatsoever and the customer indemnifies B-Logic against such loss or damage that the customer may suffer as a result of the customer's use of the services,  fault,  down-time, or outages of the goods or services or viruses, or security violations, howsoever arising and whether arising out of any problems with the services attributable to B-Logic or any electronic communications network services or another third party contractor of electronic communications services, or for any other reason.

19.2 The customer further indemnifies B-Logic against any claim resulting from:

19.2.1 the use of the customer’s data by a third party;

19.2.2 the loss of the customer’s data;

19.2.3 any non-compliance or breach with the agreement.

 

 

20. Exclusion and limitation of liability

20.1 The parties agree that any liability to the other party for losses hereunder shall be limited to direct damages.

20.2 Without in any way limiting or derogating from the provision of clause 20.1, the parties agree that the total amount of either parties liability arising out of the performance of its obligations under and in terms of this agreement and wither in contract, delict, breach of statutory duty or otherwise, shall be limited to the aggregate fees paid by the other party under this agreement in respect of a six (6) month period.

20.3 Notwithstanding anything to the contrary in this agreement, the parties agree that they shall not under any circumstances be liable to on another for any losses which are regarded in law as indirect, special, incidental, consequential, punitive or exemplary damages and which damages arise out of or in connection with this agreement.

20.4 Without limiting the provisions of this clause 20 in any way, B-Logic shall not be liable to the customer for:

20.4.1 the failure of B-Logic for any reason whatsoever to supply and/or deliver and/or provide installation of any terminal equipment on a specified date; and/or

20.4.2 the interruption, suspension or termination of the services for whatever reason save for the service credits set out in the applicable service order;

20.4.3 any costs arising from unauthorized access to and/or use of any equipment or devices, including customer devices, used by the customer to access the services on the network; and/or

20.4.4 lost or damage arising as a result of lost, damaged or corrupted data;

20.5 Nothing contained in this clause 20 shall limit the customers’ liability in respect of charges incurred for services.

20.6 These limitations on liability apply to the benefit of B-Logic.

 

 

21. Confidentiality

The parties agree to treat all confidential information of the other party that is normally regarded as confidential information or not ordinarily available to the public as confidential for the period of the agreement as well as after termination of the agreement.

 

 

22. Termination and breach

22.1 Unless a fixed term is specified in the order, either party may cancel the agreement on 3 months’ notice.

22.2 If the customer commits a material breach of the agreement, B-Logic may without any prejudice to any other rights afforded in terms of the law:

22.2.1 terminate and/or suspend the customer’s access or use of the service with immediate effect;

22.2.2 claim immediate payment of all outstanding fees and charges and future fees and charges due in terms of the agreement which fees and charged will become due and payable on demand.

22.3 Customer may without any prejudice to any other rights afforded in terms of the law and with no penalties terminate the agreement with immediate effect if;

22.3.1 B-Logic does not supply the services despite 14-days written notice from the customer to supply the service.

22.3.2 B-Logic commits any material breach of the agreement and fails to rectify it on 14 days written notice.

22.4 Subject to clause 22.2 should either party  fail to comply with any of its obligations or commit a breach of the agreement and fail to remedy such default or breach within 14 (fourteen) days after having received a written notice to do so, or be placed in provisional or final liquidation, or judicial management, or enter into any compromise or scheme of arrangement with its creditors, or fail to satisfy a judgment taken against it within 10 (ten) days, the other party shall be entitled to terminate this agreement on written notice to the defaulting party.

 

 

23. Termination Assistance

23.1 Subject to no outstanding payments being due to B-Logic, B-Logic will upon termination of the agreement render such reasonable assistance to the customer so as to enable the customer to migrate any services affected by such termination to a service provider of the customer’s choice.

 

 

24. Force majeure

24.1 Neither party shall be liable for any delay in performing or any failure to perform any obligations under this agreement due to any cause beyond their reasonable control, including but without being limited to any of the following: strikes, lock outs or other industrial action, sabotage, terrorism, civil commotion, riot ,invasion, war, threat of or preparation for war, fire, explosion, storm, flood, subsidence, epidemic or other natural physical disaster, impossibility of the use of railways, shipping aircraft, motor transport or other means of public or private transport; any act or policy of any state or government or other authority having jurisdiction over either party, sanctions, boycott or embargo, failure of any supplier of electricity, including ESKOM, telecommunication infrastructure or services, including TELKOM or any similar circumstances beyond the reasonable control of B-Logic.

Upon the occurrence of any delay or failure referred to in this clause the provisions of this agreement affected shall be suspended for as long as the cause in question continues to operate, provided that if that cause has not ceased to operate within 2 (two) months from when it first arose, this agreement may be terminated by either party on written notice to the other.

 

 

25. Dispute Resolution

25.2 The parties will make every effort to cooperate and agree on matters covered by or arising from this agreement, and to fairly and quickly resolve any disputes between them arising from this agreement.

25.3 Any dispute regarding the calculation of quantum of any payment shall be referred to an independent accountant to be agreed upon, failing which the South African Institute of Chartered Accountants will appoint someone. The accountant shall act as an expert and not as an arbitrator and will be requested to give his decision as soon as reasonably possible, alternatively within 10 business days after the dispute has been referred. The accountant’s finding shall be final and binding and the relevant party will pay the amounts due within 7 days of the decision being made.

25.4 If any other dispute cannot be resolved by the parties themselves within 14 (fourteen) days of being declared by one of the parties in writing that dispute be submitted to and decided by arbitration.

25.5 Such arbitration shall be held:

25.5.1 At Cape Town or at such other place as the parties may agree;

25.5.2 subject to any direction by the arbitrator, in an informal manner without any pleadings or discovery of documents and without it being necessary to observe the strict rules of evidence;

25.5.3 as soon as possible with a view to it being completed within 1 (one) month of the date  on which the dispute is referred to arbitration; and

25.5.4 subject to anything contrary in this clause 24, in accordance with the provisions of the Arbitration Act 42 of 1965.

25.6 The arbitrator shall be agreed upon between the parties in writing. In the event of the parties failing to reach agreement as to the arbitrator within 5 (five) days after the arbitration has been demanded, the arbitrator shall be appointed by the

Arbitration Foundation of Southern Africa.

25.7 The arbitrator:

25.7.1 shall decide the dispute submitted to him expeditiously and, if possible, within 1 (one) month after the submission thereof to him;

25.7.2 may call for whatever representations, evidence or arguments from the parties

which he may consider appropriate in the circumstances;

25.7.3 may consult with other professionals or experts in any relevant field as he in his sole discretion may deem necessary to enable him to arrive at a just decision, although nothing in this clause shall preclude him from relying on his own expertise and/or experience;

25.7.4 shall decide in his sole discretion on what proportions in which the parties are responsible for all charges, costs and expenses incurred in resolving the dispute and as to whether, at what rate, and to what period a party may be entitled to interest. In this regard, the arbitrator may take into account any travel and other expenses incurred by any party who is required to travel to the arbitration hearing; and

25.7.5 shall give his decision in writing;

25.8 The parties hereby irrevocably agree that the decision of the arbitrator in any such arbitration shall be final and binding upon them. In the event of a party failing to

comply with such decision the other party shall be entitled to institute legal proceedings for the enforcement of that decision.

25.9 This clause is separate from the rest of the agreement and will remain effective between the parties if this agreement is terminated.

25.10 The afore going shall not restrict the right of either party to apply to a competent court for relief of an urgent nature or should its intellectual property rights be violated or threatened, and the parties consent to the jurisdiction of the Western Cape High Court of South Africa for such purposes.

 

 

26 General

26.1 Nothing in this agreement will constitute any relationship of employment, subcontract or partnership and neither party will be able to bind the other party contractually.

26.2 The parties choose as domicilium citandi et executandi the address stipulated in the order.

26.3 This agreement will be regulated and interpreted in accordance with the laws of South Africa.

26.4 A party may only assign its rights and obligations under this agreement to a third party with the written consent of the other party.

26.5 This agreement constitutes the entire agreement between the parties and no variation will be of any effect unless agreed to in writing and signed by both parties. Signature for purposes of this clause does not include an electronic signature as provided for in the ECT Act.

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