Terms and conditions

DATATIM TERMS OF USE

These terms and conditions govern the basis upon which you, as the customer, may use and access our transport management application software, including all related software, applications, application programming interfaces, documentation, upgrades, maintenance releases and bug fixes, related websites or web applications (“Software”).

These terms apply to the person or entity to whom we license our software, as well as that person or entity’s authorised users who might interact with or use the Software.

These terms must be read with the written quotation provided by us to you in respect of which the Software specifications are set out, together with our fees and a description of any other services we may provide to you, such as hosting services (“Quotation”).

If there is any conflict between these terms and the Quotation, the Quotation will take precedence.

  1. SOFTWARE LICENSE
    1. Against payment of the required deposit, activation fee or first monthly fee (“Start Date”), as set out in the Quotation, we grant you a non-exclusive and non-transferable license to access and use the Software (“License”). The License and the provision of related services is for a minimum fixed term of 90 days. Thereafter, the License may be terminated by either party on the provision of 1 full calendar months’ written notice.
    2. The Software is only accessible via a device equipped with a Microsoft Windows operating system, and you warrant that your device/s are equipped with the necessary network infrastructure and power supply.
    3. As soon as reasonably possible after the Start Date, we will remotely install the Software application on your users’ devices.
    4. If requested by you, Forte Transport Solutions, or such other service provider nominated by us, shall provide training sessions to you on using the Software. Such training shall be provided remotely or at your premises (as arranged with the service provider), and shall be provided to the individual(s) nominated by you. Any and all training which may be provided to you shall be for your own account and shall be billed separately.
  2. INTELLECTUAL PROPERTY
    1. Apart from your License to use the Software in accordance with these terms, you have no other rights in or to the Software, our intellectual property (including copyright, trademarks, logos, designs, methodology, know-how, and trade secrets) or any other proprietary technology, material or information made available to you through the Software or otherwise in connection with these terms (collectively, the “Intellectual Property”).
    2. Our trademarks and trade names, as well as third party trademarks, logos and service marks used in conjunction with the Software, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
    3. We own the (i) Software, (ii) the Intellectual Property and (iii) all anonymised derivative data and metadata generated in connection with your use of the Software (“Derived Data”).
    4. However, we do not own any direct data or content that you submit, upload, post, display and transmit using the Software (“User Data”), which is dealt with in clause 7.
    5. Upon the expiry of the License and/or termination of these terms, you shall retain ownership of all User Data in the form in which it was originally provided to us. However, you shall no longer be able to access and/or use the Software.
  3. USE OF THE SOFTWARE
    1. You are responsible for all activity occurring under your account and you warrant that you shall comply with all applicable laws and regulations in connection with your use of the Software.
    2. You shall ensure the security of all login details issued to you by us from time to time.
    3. You shall promptly notify us of any unauthorised use of your account, any password to your account, or any other act or omission that would constitute a breach or violation of these terms.
    4. Any breach of these terms may result in the termination of your account and your inability to access or use the Software.
    5. We will not be liable for any loss, damages, liabilities, costs (including legal costs and experts’ fees), claims, charges, expenses, payments or penalties, suffered by you (“Loss”) arising out of or otherwise connected to the unauthorised use of your account.
  4. FEES
    1. All fees and disbursements payable by you to us are set out in the Quotation.
    2. Payment must be made within 30 (thirty) days of receipt of the relevant invoice, unless otherwise specified in a Quotation or as agreed in writing.
    3. Payment of all amounts due by you to us shall be made by way of electronic funds transfer, without set-off or deduction and free of bank charges, into our nominated bank account. Failure to pay any fees timeously shall entitle us to immediately revoke, suspend or terminate the License.
    4. Interest on all overdue payments shall accrue at the prevailing prime interest rate in South Africa, or the maximum interest rate allowed by law, whichever is the higher. Interest shall accrue daily and be compounded monthly.
    5. Our rental fees in terms of these terms and/or the Quotation shall increase annually on each anniversary of the Start Date by an amount equal to the average annual rate of increase (expressed as a percentage) in the Consumer Price Index, excluding interest rates on mortgage bonds, for all metropolitan areas as published in the Government Gazette by Statistics South Africa.
    6. Our levy and ad hoc hourly development/support fees in terms of these terms and/or the Quotation shall increase annually at the start of our financial year (1 March) by a market related percentage determined by us.
  5. END-USER ACKNOWLEDGEMENTS
    1. You agree that:
      1. installation of the Software may affect the usability of third party services or applications;
      2. you shall not:
        1. interfere with or disrupt the Software or any linked third-party services or networks, including by knowingly or unknowingly transmitting any virus onto such portals;
        2. part with possession of, lend or transfer any part of the Software or any part thereof to any third party, other than in the course of your business; or
        3. sub-license whether in whole or in part, to any third party;
      3. it is your responsibility to ensure that you have appropriate data safety measures in place, and where necessary, to arrange for your data to be appropriately backed-up. In this regard, we are not liable for any loss of your data as a result of you not implementing the appropriate security measures to protect your data from such loss. Should you require any information regarding back-up processes, please contact us at support@datatim.co.za;
      4. the Software may need to be taken offline for planned maintenance or for other unforeseen reasons from time to time during which time you will not be able to access the Software. Where possible, we will inform you in advance of such events occurring. You agree that we cannot be held liable for any loss caused by such interruption of the Software; and
      5. you may not modify, reverse engineer, create derivative works of, or interfere with or disrupt the Software.
  6. TECHNICAL SUPPORT
    1. The License does not include ongoing support and/or maintenance services.
    2. Support services may be requested but shall be billed for separately. However, we will provide ad hoc email support free of charge.
    3. Forte Transport Solutions, if requested, provides on-site support services which will be for your account and shall be billed for separately.
  7. DATA PRIVACY
    1. User Data includes all direct data or content that you submit, upload, post, display and transmit using the Software as well as all business details, user details, email addresses and other contact details, billing information and business process details provided to us by you.
    2. We process your User Data in accordance with all applicable privacy laws, including the Protection of Personal Information Act, 4 of 2013, and in this regard we will only process User Data:
      1. lawfully;
      2. in a reasonable manner, without infringing on your or your users’ privacy.
    3. We process User Data where it is adequate, relevant and not excessive, for the following purposes:
      1. to deliver the features available via the Software, including securely transmitting, storing and organising inputted data, generating reports and audit trails;
      2. in order to create, administer and transact with your account in accordance with these terms;
      3. to fulfil our contractual obligations to you;
      4. communicate with you regarding your account;
      5. monitoring and improving our Software service delivery; and
      6. delivering targeted advertising to you within our current and future web portals as well as current and future releases of the Software.
    4. In accessing, using and uploading the Software, you consent to us processing your User Data as set out above. We will also process User Data where it is necessary to perform our obligations to you in terms of this Software license, or where we are legally required to do so.
    5. Please notify us immediately if you object to the processing of any of your User Data at any time.
    6. If you do not consent to us processing the User Data as contemplated above, we will not be able to provide the License and/or access to the Software.
    7. You warrant that your authorised users and guests have consented to the processing of their User Data.
    8. Any person who uploads or submits third-party data or information to the Software for processing by us warrants that they have the permission and consent of the third party to do so.
    9. We will retain User Data no longer than is necessary for the purposes set out above, unless otherwise required by law, or as required by you. Once no longer required, all User Data will be destroyed, deleted, or de-identified.
    10. Please contact us if any User Data is inaccurate, incomplete, or misleading, or if you require its transfer.
    11. We may store the User Data on cloud based servers situated outside South Africa, but only in jurisdictions where the law imposes conditions for the processing of information which are equivalent to, or more extensive, than those conditions stipulated by the Protection of Personal Information Act, 4 of 2013.
    12. We have implemented technological and organisational measures aimed at protecting the confidentiality and integrity of your User Data. We have identified all reasonably foreseeable internal and external risks to your User Data and have established, and maintain, appropriate safeguards against these risks. We regularly verify that these safeguards are being effectively implemented and we will continually update these safeguards in response to new risks or deficiencies identified.
    13. We will notify you, and the appropriate regulator, immediately where we have grounds to believe that any User Data has been accessed or acquired by any unauthorised person.
  8. DISCLAIMER
    1. To the extent permitted by law:
      1. use of the Software is at your sole risk; and
      2. the Software is provided “as is” and we disclaim liability for any damages that the Software may cause to you or any other person (whether through malware, defects in the Software or otherwise).
    2. We do not warrant that:
      1. the Software will meet your requirements;
      2. the operation of the Software will be uninterrupted or error free;
      3. there will be no interference with your enjoyment of the Software; or
      4. the Software will be compatible or work with any third-party services or applications.
  9. LIMITATION OF LIABILITY
    1. Unless otherwise permitted by law, in no event shall we or our officers, directors, shareholders, subsidiaries, affiliates, employees and agents be liable for any consequential loss arising out of your use of the Software.
    2. You assume total responsibility for your use of the Software.
    3. The otherwise maximum liability of Datatim, its officers, directors, shareholders, subsidiaries, affiliates, employees and agents in respect of any claims which may arise in respect of this agreement shall be limited to the activation and license fees accrued during the term of this agreement, or a period of one year, whichever is the lesser.
  10. NOTICES
    Any notice required or permitted to be given or made in relation to these terms shall be valid and effective only if it is in writing. Legal notices will be served on you at the e-mail address you provide for the Quotation. Notices will be presumed to have been delivered to you on the date of despatch.
  11. BREACH
    1. At any time, if either party is in breach of these terms, or if a party commits an act of insolvency, an application is made, or a resolution is passed, for such party to be placed into liquidation, or a party becomes subject to business rescue proceedings, the other party may, by written notice, require the party in breach to remedy such breach. If the breach is not remedied within 7 (seven) business days of receipt of such notice, or if the breach is incapable of being remedied, the other party may in writing terminate this agreement, without prejudice to its right to claim damages arising from such breach.
    2. Upon termination of this agreement for any reason, you shall no longer be permitted to use or access the Software. Clauses 7 to 14 shall survive termination of this Software license.
  12. FORCE MAJEURE
    1. Neither party shall be liable for any failure to fulfil its obligations under these terms if and to the extent such failure is caused by any circumstances beyond its reasonable control, including but not limited to flood, fire, earthquake, war, hurricane, industrial action, government restrictions or acts of God.
    2. Should either party be unable to fulfil a material part of its obligations under these terms for a period in excess of 60 days due to circumstances beyond its reasonable control, as recorded in this clause, the other party may at its sole discretion terminate this agreement.
  13. ASSIGNMENT
    We may transfer, sub-contract or otherwise deal with our rights and/or obligations under these terms without notifying you or obtaining your consent.
  14. SEVERABILITY
    If a provision of these terms is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.