OCTIV FITNESS (PROPRIETARY) LIMITED
IMPORTANT – PLEASE READ THESE TERMS CAREFULLY WHEN PURCHASING, USING OR ACCESSING THE SOFTWARE AND SERVICES FROM OCTIV FITNESS PROPRIETARY LIMITED
THESE TERMS AND CONDITIONS GOVERN THE USE AND LICENSING BY OCTIV FITNESS OF THE SERVICES.
BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS, CLICKING THE “SUBMIT” OR “ACCEPT” BUTTONS, USING ANY OF THE SERVICES OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS, YOU AND ANY PARTY ON WHOSE BEHALF YOU ARE BUYING THE SERVICE (TOGETHER REFERRED TO AS “YOU” “YOUR” OR “THE CLIENT”), REPRESENT AND WARRANT THAT:
1. In this agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings:
1.1. “Administrators” means the Client’s authorised representatives who are responsible for the management of the Octiv Fitness Platform and who will assign or designate access rights, roles and permissions to Authorised Users;
1.2. “Agreement” means this software-as-a-service agreement;
1.3. “Authorised Users” means the users which are authorised to access and use the Octiv Fitness Platform including Client personnel, services providers and Client’s members as the case may be;
1.4. “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
1.5. “Client Personal Data” means any and all Personal Data Processed by the Octiv Fitness as a contractor on behalf of the Client pursuant to or in connection with the Agreement;
1.6. “Confidential Data” means any and all data and information, including Client Personal Data, materials, works, expressions, images, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of the Client or any Authorised Users, or (b) collected, downloaded, or otherwise received by the Supplier for Client or any Authorised Users pursuant to this Agreement;
1.7. “Confidential Information” means the terms and conditions of this Agreement, and any other information disclosed by one Party to the other, including, but not limited to, information regarding each Party’s products, services, product designs, prices and costs, trade secrets, know how, inventions, development plans, techniques, processes, programs, schematics, software, data, customer lists, financial information, sales and marketing plans, business opportunities, personnel data, research and development activities, pre-release products and any other information which the receiving party knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing party
1.8. “Data Protection Legislation” means the privacy laws which apply to the Processing of the Client Personal Data in terms of the Agreement, in particular, the POPIA and, if applicable, the GDPR;
1.9. “Effective Date” means the date upon which the Client completes any electronic acceptance form or process made available online by Octiv Fitness where the Client clicks the “SUBMIT” or “ACCEPT” buttons, alternatively, each Party signing this Agreement or a Client using any of the Services or otherwise indicating acceptance of these terms;
1.10. “GDPR” means the EU General Data Protection Regulation 206/679;
1.11. “Intellectual Property” means anonymised data generated through the Octiv Fitness Platform, copyrights, patents, trademarks, designs or models, trade patterns, trade names and any other type of intellectual property and any rights to them (including applications for and rights to obtain or use same) which are used and/or held, whether or not currently used, by Octiv Fitness in connection with its business and/or any other rights to such Intellectual Property;
1.12. “Octiv Fitness Platform” means the cloud-based software solution developed and owned by Octiv Fitness, which offers fitness facilities an integrated business management tool and CRM platform;
1.13. “Parties” means the parties to this Agreement being the Client and Octiv Fitness collectively, each being a Party;
1.14. “Personal Data” means personal data as defined in the GDPR;
1.15. “POPIA”means the South African Protection of Personal Information Act 4 of 2013, as amended or supplemented from time to time;
1.16. “Octiv Fitness” means Octiv Fitness (Proprietary) Limited with company registration number 2014/173315/ 07 t/a Octiv Fitness, a private company incorporated under the company laws of the Republic of South Africa, with its registered address at 6 Lowlands Avenue, Tokai, Western Cape, 7945, E-mail: [email protected];
1.17. “Services” means the services and functions offered by the Octiv Fitness Platform from time to time, as described in clause 3 delivered by Octiv Fitness to the Client in terms of the applicable Subscription Package and this Agreement;
1.18. “Subscription Package” means the subscription package described in clause 3; and
1.19. “Subscription Fees” means the subscription fees to be paid by the Client to Octiv Fitness pursuant to the selected Subscription Package described in Annexure A.
2. In this Agreement, words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing persons shall include partnerships, trusts and bodies corporate, and vice versa.
3. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
4. Each of the provisions contained in this Agreement shall be construed as independent of every other such provision to the effect that if any provisions of this agreement shall be determined to be illegal, invalid and/or unenforceable then such determination shall not affect any other provisions of this agreement all of which shall remain in full force and effect.
5. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause.
Purpose of this agreement
1. Octiv Fitness is in the business of providing cloud-based software application solutions to fitness facilities, such as the Client.
2. Octiv Fitness has developed the Octiv Fitness Platform and has the expertise in providing the Service(s) to the Client.
3. The Client wishes to engage Octiv Fitness to supply the Service in accordance with the terms of this Agreement and Annexure A.
Description and use of the services
1. The Octiv Fitness Platform is a software-as-a-service solution. The key features and functions of the Service are described on our website at https://octivfitness.com/features. The Service offers its Clients an integrated business management and CRM tool, with all features built in and offered as standard.
2. The Service is capable of hosting, managing, collecting and processing Confidential Data captured by the Client and its Authorised Users.
3. The Service is offered on a per user subscription basis. Upon the selection of the Subscription Package by the Client and the payment of the Subscription Fee, the Client will be entitled to utilise the Service for a fixed period.
4. Octiv Fitness hereby grants to the Client a limited, revocable, non – exclusive and non-transferable right to access and make use of the Service for the subscription period.
5. Any license granted by Octiv Fitness to the Client in respect of the Service and in terms of this Agreement shall be subject the following:
5.1. Permitted use. The Client shall only be entitled to use the Service for business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children, adult content or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the Confidential Data contained therein; or (v) attempt to gain unauthorized access to Services or its related systems or networks.
5.2. Notification of unauthorised use. The Client shall notify Octiv Fitness in writing immediately upon it becoming aware of any unauthorised use of the Service and provide Octiv Fitness with all information and support that may reasonably require in this regard.
5.3. No changes. The Client shall not directly or indirectly attempt to adapt, reproduce, make derivative works, reverse engineer or decompile (to the extent any software is compiled) the Service, nor attempt to overcome any measures employed by Octiv Fitness to protect the Service (such as obfuscation).
Subscription packages and subscription fees
1. Our Per User Subscription Package works on a tiered model and is offered to Clients on a month to month, quarterly or annual subscription plan.
1.1. Monthly Subscription Package:Payment of the monthly Subscription Fee must be by pre-authorised credit card charge, or direct debit only, and the subscription will automatically renew each calendar month unless the Client provides a 30 (thirty) day written notice of non-renewal during the prior calendar month. The Client will automatically be charged the applicable monthly Subscription Fee for each month or partial month that the month-to-month subscription is in effect.
1.2. Quarterly Subscription Package: Payment of the monthly Subscription Fee must be by pre-authorised credit card charge, or direct debit only, and the subscription will automatically renew every 3 (three) months from the Effective Date unless the Client provides a 30 (thirty) calendar day written notice of non-renewal. Accordingly, notice of non-renewal must be received by Octiv Fitness during the second month in the relevant quarter. The Client will automatically be charged the quarterly Subscription Fee in advance for each quarter that the quarterly subscription is in effect.
1.3. Annual Subscription Package: If payment is by credit card or direct debit, the subscription will automatically renew at the beginning of each subsequent anniversary of the Effective Date unless the Client gives prior written notice of non-renewal at least three (3) calendar months prior to the expiration of the current annual subscription.
1.3.1. If the subscription is for a year and the payment is by EFT or direct payment of an invoice from Octiv Fitness, payment shall be due within thirty (30) days of the date of invoice. Additionally, the subscription will automatically renew at the beginning of each subsequent anniversary of the Effective Date unless the Client gives prior written notice of non-renewal at least three (3) calendar months prior to the expiration of the current annual subscription.
2. Selection Subscription Packages: The Client will advise Octiv Fitness in writing by e-mail, to an authorised Octiv Fitness sales representative, which Subscription Package it will subscribe to on the Effective Date.
3. Change to Subscription Package: After the Client has made an initial selection, the Client may upgrade or downgrade its Subscription Package on written notice to Octiv Fitness (whether by email, or through the Octiv Fitness Platform and/or website) with effect from the end of the following calendar month. The upgrade or the down grade will be subject to agreement by the Client of the unique terms that apply to the new Subscription Package.
4. In consideration for the Subscription Package, the Client shall pay to Octiv Fitness the applicable Subscription Fees as set out in Annexure A hereto.
5. Invoicing of Subscription Fees: If applicable, Octiv Fitness shall issue regular invoices to the Client on a monthly, quarterly or annual basis, in advance, unless otherwise agreed to in writing.
6. Increases in the Subscription Fees: The Client agrees that on each anniversary of the Effective Date, the Subscription Fees may, if the duration of this Agreement extends beyond the 1st (first) anniversary of the Effective Date, be reviewed and increased on such anniversary of the Effective Date.
7. Taxes: in addition to the Subscription Fees and subject to receipt of a valid Tax invoice, the Client shall pay any applicable Taxes and levies with regard to the Services.
8. Expenses: all expenses incurred by Octiv Fitness in the course of providing the Services shall be agreed in advance by the Client and will be included in Octiv Fitness’s invoices.
9. General: all payments to be made by the Client to Octiv Fitness in terms of this Agreement shall be made by the Client:
9.1. without set-off or deduction of any kind; and
9.2. into Octiv Fitness’s bank account, the details of which will be provided by Octiv Fitness, either displayed on the invoice or by written notice.
10. Overdue amounts: if any amount payable by the Client in terms of this Agreement is not paid when due, then Octiv Fitness will be entitled to revoke access to the Octiv Fitness Platform, cancel the Services and levy interest on such outstanding amounts at a rate of 2% (two percent) per month from the date of default. Interest shall be calculated and capitalised on the same day of each month, in arrears, on the amounts due until the default has been remedied in full by the Client.
Commencement, duration and termination
1. This Agreement shall commence on the Effective Date and will continue in force and effect for the duration of each relevant Subscription Package and until terminated in terms of the provisions of this Agreement.
2. Upon termination of this Agreement for any reason:
2.1. all amounts outstanding to either Party shall become immediately due and payable, without demand or further notice of any kind, all of which are expressly waived by the Parties; and
2.2. both Parties shall immediately delete all electronic copies and destroy all hard copies of all Confidential Data or Confidential Information in its possession which it is not obliged to retain in terms of applicable law or a contractual duty.
3. The termination or expiration of this Agreement shall not affect any liabilities or obligations, including, without limitation, payment and indemnification obligations, which arose pursuant to the terms of this Agreement prior to the date of termination of this Agreement.
Octiv fitness obligations
1. Octiv Fitness shall:
1.1. Assist the Client with setting up the Octiv Fitness Platform;
1.2. provide and make available such Services as described herein;
1.3. appoint a designated point of contact;
1.4. deliver the Services in a workmanlike manner and with professional diligence and skill, using fully trained, skilled, competent, and experienced personnel;
1.5. host the Octiv Fitness Platform through a secure, reputable and reliable hosting service provider;
1.6. use commercially reasonable efforts to respond to all helpdesk tickets within 24 hours;
1.7. provide technical support via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm South African time, with the exclusion of public holidays; and
1.8. use its best efforts to maintain the Service and to minimize any downtime or errors that affect its performance during the term of this Agreement.
1. The Client shall:
1.1. appoint a designated point of contact;
1.2. appoint responsible Administrators and Authorised Users; and
1.3. provide all assistance and cooperation to Octiv Fitness in order for Octiv Fitness to deliver the Services.
2. In order to render the Service, the Client shall:
2.1. comply with all applicable laws and regulations with respect to its activities under this Agreement;
2.2. carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the Parties, Octiv Fitness shall be granted such additional time as may be reasonably required to perform its obligations;
2.3. ensure that the Authorised Users use the Service in accordance with the terms and conditions of this Agreement and the Data Processing Addendum and shall be responsible for any Authorised User’s breach of this Agreement;
2.4. ensure that its network and systems comply with the relevant specifications provided by Octiv Fitness from time to time;
2.5. be restricted to the use of one license per user and the Client and its Authorised Users shall not be permitted to share their usernames or login details with any other person;
2.6. be solely responsible for procuring and maintaining its network connections and links from its systems to the Octiv Fitness data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or links or caused by the internet;
2.7. be responsible and liable for all uses of the Services, directly or indirectly. Specifically, and without limiting the generality of the foregoing, the Client is responsible and liable for obtaining all necessary approvals from its members, individuals and regulatory institutions relating to the collection and processing of data and Personal Data;
2.8. comply with its obligations as a Controller or Responsible Party in terms of applicable Data Protection Legislation and with the terms of the Octiv Data Processing Addendum.
1. Any pre-existing Intellectual Property owned by a Party prior to the entering into of this Agreement will continue to be the property of such Party.
2. Octiv Fitness owns and will continue to own all right, title and interest in and to the Intellectual Property, reports, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, or other technology provided or developed by Octiv Fitness (or a third party acting on Octiv Fitness’s behalf) pursuant to this Agreement in the course of rendering the Services to the Client including modifications, enhancements, improvements or derivative works of any of the aforegoing, regardless of who first conceives or reduces to practice, and all Intellectual Property in any of the aforegoing (“collectively, “the Octiv Fitness Intellectual Property”) shall belong to and be the absolute property of Octiv Fitness.
3. Octiv Fitness never takes ownership of any content provided or uploaded by the Client Administrators and/or Authorised Users. It merely acts as custodian of the content.
4. Octiv Fitness acknowledges that, subject to applicable Data Protection Legislation, all non-anonymised content uploaded by the Client, Administrators and Authorised Users, will continue to be owned by the Client and that Octiv Fitness shall have no claim, right, title and interest in and to the content uploaded to the Octiv Fitness Platform, by aforementioned parties.
5. Octiv Fitness will however own all anonymised data generated through the Octiv Fitness Platform and grants the Client the right to use such anonymised data strictly for its own business purposes.
Warranties and disclaimer
1. Each Party hereby warrants and represents to the other that:
1.1. it is a valid and subsisting company incorporated pursuant to the laws of its country of incorporation;
1.2. it has all requisite power and authority to execute and implement this Agreement and has all necessary power and authority to perform its obligations as set out in this Agreement;
1.3. the entering into of this Agreement will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which the relevant Party may be a party; and
1.4. the execution and implementation of this Agreement has been duly authorised by all necessary action on the part of the relevant Party and this Agreement, when duly executed and implemented by the Parties, will constitute a legal and binding obligation of the Parties enforceable in accordance with its terms.
2. No other registered users (i.e., other Clients using the Services) will have access to any non-anonymised data related to Client usage. No non-technical staff at Octiv Fitness will have access to any Confidential Data.
3. Octiv Fitness does not warrant that the Service, or any feature of Octiv Fitness Platform will be error-free or uninterrupted, that any defects will be corrected, or that your use of Octiv Fitness Platform will provide specific results. Octiv Fitness Platform, its content, and service are delivered and provided on an “as-is” and “as-available” basis.
4. The Client understands and agrees that it uses Octiv Fitness Platform and the Service at its own risk and that the Client will be solely responsible for any possible consequences that such use or misuse may have or result in. All responsibilities and liabilities towards users, customers, and third parties remain solely with the Client, all without recourse against Octiv Fitness Platform, its owners, and its employees.
5. Octiv Fitness makes no further warranties to the Client.
Limitation of liability
Octiv Fitness will not, under any circumstances, be liable to the Client for any costs, claims, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts which the Client may sustain or suffer (or with which the Client may be threatened) as the result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or in the course of the discharge or exercise by the Parties or their employees, agents, professional advisors or delegates of their obligations or rights in terms of this Agreement or the termination of this Agreement for any reason, in excess of the amount recoverable under Octiv Fitness’s professional indemnity insurance policy.
No consequential losses
Under no circumstances whatsoever shall either Party be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of profits, and whether as a result of negligent (including grossly negligent) acts or omissions of such Party or its servants, agents or contractors or other persons for whose actions such Party may otherwise be liable in law.
The Client hereby indemnifies and holds harmless Octiv Fitness (including its shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by any third party for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive or exemplary loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, fines or other amounts arising, from any information furnished by the Client which is published on the Octiv Fitness Platform, use of by its customers of the Octiv Fitness Platform or arising from any breach of any of its obligations or duties under this Agreement.
1. The Parties acknowledge that the Confidential Information shared between them in connection with this Agreement, including all information relating to the business activities and operations of each of the Parties, was exchanged in strict confidence.
2. Each of the Parties undertakes to maintain and protect the Confidential Information which it received from the other Party.
3. The obligation with regard to the maintenance of confidentiality as hereinafter provided for shall remain binding on the parties notwithstanding the termination of this Agreement for any reason.
1. Should either Party (“ the Defaulting Party”)
1.1. commit any act of insolvency as defined in the Insolvency Act, 1936; or
1.2. be wound up, whether provisionally or finally and whether compulsorily or voluntarily or be placed under judicial management; or
1.3. enter into any arrangement or compromise with the general body of its creditors; or
1.4. be the subject of any resolution passed for its winding up or dissolution; or
1.5. breach any of the terms and conditions of this Agreement, then the other Party (“the Aggrieved Party”) shall be entitled forthwith in the case of clauses 15.1.1 to 15.1.5 both inclusive, and in the case of clause 15.1.5 where the defaulting party has failed to remedy such breach within a period of 14 (fourteen) days after receipt of written notice by the aggrieved party requiring it to do so, to claim specific performance or to cancel this agreement by written notice to that effect given to the defaulting party, either of which shall be without prejudice to any other legal remedies which the aggrieved party may have.
1. Other than in respect of those provisions of this Agreement which provide for their own remedies, or should such process be unsuccessful, or the outcome is non-binding, either party may refer the matter to arbitration to be held in terms of this clause 16.
2. The arbitration shall be held in Cape Town in accordance with the provisions of the Arbitration Foundation of South Africa (“AFSA”) and:
2.1. the arbitration shall be informal; and
2.2. the Arbitrator shall have the discretion to determine the procedure to be adopted at the arbitrational hearing.
3. The appointment of the Arbitrator will be agreed upon between the Parties but failing agreement between them within a period of 14 (fourteen) days after the arbitration has been requested, any of the Parties shall be entitled to request the President for the time being of the Legal Practice Counsel in Cape Town, to make the appointment and who, in making his appointment, will have regard to the nature of the dispute.
4. The decision of the Arbitrator shall be final and binding and shall not be subject to appeal.
5. The Parties acknowledge and agree that the provisions of this clause shall not preclude any of them from proceeding against any of the other of them in any court of competent jurisdiction where relief is being sought on an urgent and interim basis.
1. Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control, including, without limitation, acts of God, earthquakes, labour disputes, actions of governmental entities (including but not limited to delay caused by customs regulations or a change in customs regulations), riots, war, terrorism, fire, epidemics or other circumstances beyond its reasonable control.
2. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance, provided that if such period exceeds 60 (sixty) days, then either Party shall be entitled to terminate this Agreement immediately on written notice while the Party’s performance continues to be prevented.
1. No relaxation, indulgence or concession granted by any Party to the other(s) in respect of any of its obligations hereunder shall constitute a novation of any part of this Agreement nor otherwise prejudice, derogate from, or affect, any rights which the party granting the relaxation, indulgence or concession may have against the Party(ies) in whose favour such grant shall have been made.
2. No variation of, or addition or agreed cancellation to this agreement shall be of any force or effect unless it is reduced to writing and signed by or on behalf of the parties.
3. Governing law: The Agreement shall be interpreted and governed in all aspects in accordance with the laws of the Republic of South Africa.
4. Jurisdiction: The Parties consent to the jurisdiction of the courts of South Africa in respect of any matter flowing from this Agreement.
5. Good faith: The Parties shall in their dealings with each other display good faith.
6. No assignment: Neither Party will be entitled to cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of the other Party.
7. No representation: To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
8. Counterparts: This Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
9. Address for service: Any notice, approval, request, authorisation, direction, or other communication under this Agreement shall be given in writing, directed to the addresses of the Parties set forth in clause 1 or otherwise provided in writing, and shall be deemed to have been delivered and given for all purposes:
9.1. on the delivery date if delivered by email;
9.2. on the delivery date if delivered personally to the Party to whom the same is directed;
9.3. 1 (one) business day after deposit with a commercial overnight carrier with written verification of receipt; or
9.4. 5 (five) business days after the mailing date whether or not actually received, if sent by registered or recorded delivery post or any other means of rapid mail delivery for which a receipt is available to the contact at the address of the Party to whom the same is directed.
10. Whole agreement: this Agreement sets forth the entire agreement and supersedes all prior or contemporaneous agreements and representations, written or oral, of the Parties with respect to the transactions set forth herein, all of which are excluded, except for fraudulent misrepresentations. The Parties acknowledge that as of the date hereof, no binding commitments exist between the Parties with respect to the subject matter of this Agreement except as may be provided herein.
ANNEXURE A: PER USER SUBSCRIPTION PACKAGES
Format = number of users: fee
Users = client personnel accounts + active and suspended client member accounts
South Africa (Ex VAT):
1 – 65: R1000 p/m
66 – 100: R1500 p/m
101 – 135: R2000 p/m
136 or more: R2400 p/m
1 – 50: GBP 65 p/m
51 – 75: GBP 100 p/m
76 – 100: GBP 130 p/m
101 – 130: GBP 170 p/m
131 – 160: GBP 200 p/m
161 or more: GBP 260 p/m
Rest of the World:
1 – 50: USD 75 p/m
51 – 75: USD 100 p/m
76 – 100: USD 150 p/m
101 – 150: USD 255 p/m
151 or more: USD 300 p/m