Terms of Service - Asset Managed Solutions

(General Terms relating to the use of AMS and the provision of services by ASSET MANAGED SOLUTIONS)
Version Number: V2.0
Date: April 22, 2021

INTRODUCTION

Thank you for visiting AMS, a web based platform (or software as a service) that manages and administers a business. These Terms are the general terms of the relationship between ASSET MANAGED SOLUTIONS and each User or Business. These Terms cover the use of AMS. By visiting, signing up on or logging in to AMS, each User or Business accepts and agrees to these Terms. These Terms also cover any transactions (including any transaction carried out electronically using a computer or network, or in person) where ASSET MANAGED SOLUTIONS provides to a User or Business (who receives) Services. The commercial terms of any transaction between ASSET MANAGED SOLUTIONS and a User or Business will be contained in an Order that will incorporate these Terms. The Order will prevail if there is a conflict of meaning. Nothing in these Terms obligates a party to enter into any Orders.

DEFINITIONS AND INTERPRETATION

Definitions. For purposes of the Agreement:

“Affiliate” means any parent company, subsidiaries, joint ventures, or other companies under a common control;

“Agreement” means each agreement between ASSET MANAGED SOLUTIONS and each User or Business, consisting of these Terms and any Orders the parties enter into;

“Business” means a legal or natural person running a business and includes one or more Users or Groups who work together in some capacity and could include:

all employees of a particular business,
a smaller team within a business, or
a Group of Users from different businesses working in collaboration.
a Business can play different roles on AMS. It can be:
a supplier that supplies goods or services to a vendor;
a vendor that provides goods or services to a customer; or
a customer that receives goods or services from a vendor;

“Content” means any content added to a database by a User to be managed and manipulated by AMS. Content includes data, photos, images, audio files, text, files, listings, postings, messages, or other materials;

“ECT Act” means the Electronic Communications and Transactions Act 25 of 2002;

“Effective Date” means in respect of each Order, the effective date stipulated in each Order, in the absence of which it will be the date the Order is accepted by ASSET MANAGED SOLUTIONS;

“Fees” means the fees, charges, or purchase consideration indicated in the pricing matrix [insert link] that each Business will pay to ASSET MANAGED SOLUTIONS in respect of Services provided by ASSET MANAGED SOLUTIONS under Orders;

“Group” means a group of one or more Users that share permissions;

“Order” means a services order agreed to and signed by a Business and ASSET MANAGED SOLUTIONS describing the specific Services to be provided by ASSET MANAGED SOLUTIONS to a Business;

“Owner” means the User or Business that owns the relevant thing;

“Services” means any services ASSET MANAGED SOLUTIONS provides to a Business as specified in the features matrix [insert link];

“Service Levels” means the levels according to which ASSET MANAGED SOLUTIONS will provide each Service as agreed by the parties;

“Sign” means the handwritten signature or advanced electronic signature of the duly authorised representative of a party;

“Signature Date” means the date of signature by the party signing last;

“AMS” means the Smart Online Management Software at assetmanagedsolutions.co.za, a platform (or hosted application) that manages and administers a business, including:

all content, goods or services, applications or apps available through AMS; and any other marketing material of ASSET MANAGED SOLUTIONS;

“AMS Domain” means one or more domains or environments of a Business on AMS that has its own, unique URL (for example, 12345.assetmanagedsolutions.co.za);

“ASSET MANAGED SOLUTIONS” or “we” means SOMS Marketing PTY Ltd; T/A ASSET MANAGED SOLUTIONS

“Terms” means these terms, consisting of: these Terms of Service; and any other relevant specific terms, disclaimers, rules and notices agreed between the parties, (including any that may be applicable to a specific section or module of AMS or any specific Services);

“User” means a natural person who registers on AMS and has a unique login or an external system interacting with AMS via an API. A User can play different roles on AMS. For example, an administrator, an employee of a Business, or a sales representative of a Business;

“Writing” means any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents, fax transmissions, but excludes information or data in electronic form.

Definitions in the Order. Words defined (or assigned a meaning) in the Order will have that meaning in these Terms, unless the context clearly indicates otherwise.

Interpretation. A word defined or assigned a meaning in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time. A reference to a person includes a natural and juristic person and a reference to either party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

Conflict. If there is a conflict of meaning between these terms of service and any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, the specific terms will prevail in respect of the use of the relevant section or module of AMS, or Services.

TERM

These Terms commence on acceptance and continue until terminated.

USE OF AMS

AMS Domain. Each Business has a AMS Domain. Access to a Business’s AMS Domain is controlled by a User appointed by the Business as an administrator.

License to use AMS. ASSET MANAGED SOLUTIONS grants each User a limited, revocable license to use AMS subject to the Agreement. Any person wishing to use AMS contrary to the Agreement must obtain ASSET MANAGED SOLUTIONS prior written consent.

Policies. ASSET MANAGED SOLUTIONS may establish general polices and limits concerning the use of AMS. ASSET MANAGED SOLUTIONS may log off, deactivate, or delete any account.

Support and performance. ASSET MANAGED SOLUTIONS may provide documentation to assist a User use AMS. Each User or Business is responsible for maintaining its Content, including correcting any faults. To enable a great experience for everyone on AMS, each User or Business must ensure that its use of AMS does not unduly degrade the performance of AMS, including exceeding the quotas and limitations set by ASSET MANAGED SOLUTIONS (for example, bandwidth and system resources). If this happens, ASSET MANAGED SOLUTIONS may suspend the use of AMS.

Framing. No person, business, or web site may frame AMS or any of the pages on AMS.

Linking. A person, business, or web site may link to AMS only by linking to the home page https://www.assetmanagedsolutions.co.za of AMS. ASSET MANAGED SOLUTIONS prohibits “deep linking” to any other pages in a manner that would incorrectly suggest endorsement or support by ASSET MANAGED SOLUTIONS or suggests anyone is the owner of any intellectual property belonging to ASSET MANAGED SOLUTIONS.

Spiders and Crawlers. No person, business, or web site may use any technology (including spiders or crawlers) to search and gain any information from AMS.

MODIFY

ASSET MANAGED SOLUTIONS may modify, suspend, or discontinue providing AMS or any Services (with or without notice) and will not be liable.

INTERACTION

Relationship between a User and a Business is independent. The relationship between any User and any Business (or any Business and any other Business) is between them and is independent of ASSET MANAGED SOLUTIONS. The relationship may include the delivery of goods or services, and any other associated terms, conditions, warranties or representations.

Release. Each User and Business releases AMS (and its affiliates, officers, employees, agents and successors) from any claims, demands, and damages regarding any disputes between any User or Business.

Third party terms. If a third party supplies or delivers any goods or services directly to a User or Business, third party terms or conditions may apply. Each Business is solely responsible to ensure they understand and agree to those terms.

GENERAL

Entire Agreement. The Agreement constitutes the entire agreement between the parties in respect of the subject matter of the Agreement.

Changes. The Agreement may be changed at any time by ASSET MANAGED SOLUTIONS and where this affects the rights and obligations of a User or Business, ASSET MANAGED SOLUTIONS will notify the User or Business of any changes by placing a notice in a prominent place on AMS (or by email). If a User or Business does not agree with the change the User or Business should stop using AMS. If a User or Business continues to use AMS following notification of a change to the Agreement, the changed terms will apply to the User or Business.

Fact related to AMS. A certificate, signed by an administrator of AMS, of any fact related to AMS (including the version of the Terms that governs a particular Order or dispute and what content was published or functionality was available on AMS at a specific point in time) will be conclusive irrefutable proof of the correctness of the certificate’s contents.

Waiver. No granting of time or forbearance will be, or be deemed to be, a waiver of the Agreement and no waiver of any breach will operate as a waiver of any continuing or subsequent breach.

Sever ability. If any term is void, unenforceable, or illegal, the term will be severed and the remainder of the Agreement will have full force and effect, provided the severance does not alter the nature of the Agreement.

Governing Law and jurisdiction. As between ASSET MANAGED SOLUTIONS and each User or Business, the Agreement is governed by and must be interpreted under the laws of the Republic of South Africa and each User or Business agrees to submit to the exclusive jurisdiction of the South African courts.

Right to reference. Each User or Business consents to ASSET MANAGED SOLUTIONS using its name in any marketing or sales material.

USER ACCOUNTS

Passwords and Security. Only a registered User can use AMS. Each User is responsible for keeping their password secure. Each User is solely responsible and liable for activities that occur under their account. User authorises ASSET MANAGED SOLUTIONS to act on any instruction given under User’s account, even if it transpires that someone else has defrauded both ASSET MANAGED SOLUTIONS and User, unless User has notified ASSET MANAGED SOLUTIONS prior to ASSET MANAGED SOLUTIONS acting on a fraudulent instruction.

Users. User accounts registered by bots or other automated methods are not permitted. Each User must provide their full legal name, a valid email address, and any other information requested in order to complete the registration process. One person may only use each User’s login – ASSET MANAGED SOLUTIONS does not permit multiple people to share a login.

ORDERS

Invitation to do business. The marketing of the Services by ASSET MANAGED SOLUTIONS is merely an invitation to do business or for a Business to make an offer to procure Services. The parties only conclude a valid and binding Order when ASSET MANAGED SOLUTIONS accepts the offer made by a Business. Unless proven to the contrary, ASSET MANAGED SOLUTIONS only accepts an offer relating to Services, when ASSET MANAGED SOLUTIONS begins providing the Services. ASSET MANAGED SOLUTIONS may accept or reject any offer. If ASSET MANAGED SOLUTIONS does not accept any offer, then SASSET MANAGED SOLUTIONS will refund any monies already paid by a Business.

Cancel. ASSET MANAGED SOLUTIONS may cancel any Order at any time in its absolute discretion. ASSET MANAGED SOLUTIONS will refund any monies already paid by a Business.

Fees. Despite ASSET MANAGED SOLUTIONS best efforts, the stated Fees may be incorrect. ASSET MANAGED SOLUTIONSwill confirm the Fees for any Services when ASSET MANAGED SOLUTIONS accepts a Business’s offer.

Time and place. ASSET MANAGED SOLUTIONS and each Business conclude any agreement at the time when a duly authorised representative of ASSET MANAGED SOLUTIONS accepts the relevant offer and at the place where ASSET MANAGED SOLUTIONS has its head office. ASSET MANAGED SOLUTIONS does not need to communicate the acceptance of the offer to a Business.

Orders. The Terms in effect at the time a Business makes an offer will govern the Order. Each Order will create a separate agreement. Despite that, ASSET MANAGED SOLUTIONS may consider the breach of any one Order to constitute a breach of any or all Orders.

USERS

Any User or Business can invite another User or Business to join AMS. Only a Group Owner can invite a User to become a member of a Group. Only a Business Owner can invite a User to become a member of a Business. Users may be granted permission to become a member of a Group or Business.

Each User represents and warrants that User:
is old enough under applicable law to enter into the Agreement;
is legally capable of concluding any transaction;
possesses the legal right, full power, and authority to enter into the Agreement;
is authorised to use the password required for any account; and
will submit true, accurate and correct information to ASSET MANAGED SOLUTIONS and AMS.
If a User is younger than 18 years of age, the User warrants that User has the consent of its legal guardian to enter into the Agreement or that User has obtained legal status in another manner.

FEES AND PAYMENT

Fees and payment. Each Business will pay ASSET MANAGED SOLUTIONS the Fees. ASSET MANAGED SOLUTIONS will invoice the applicable Fees in advance, starting from the Effective Date. ASSET MANAGED SOLUTIONS may change the Fees and payment terms upon 30 calendar days prior written notice to a Business. If ASSET MANAGED SOLUTIONS changes the Fees a Business may cancel basic or premium Services at anytime on 30 days written notice to ASSET MANAGED SOLUTIONS.

Due dates. Fees must be paid promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.

Manner of payment. A Business must make payment in the manner specified in the Order.

Late payments. The additional surcharges and penalties specified in the Order will apply to any payment received after the due date to cover collection fees and additional administration costs. A Business must pay the surcharges and penalties to ASSET MANAGED SOLUTIONS on-demand. ASSET MANAGED SOLUTIONS may halt the provision of any Services until a Business has paid all amounts that are due.

Interest on overdue amounts. Any amount not paid by a Business on the due date will bear interest for the benefit of ASSET MANAGED SOLUTIONS, from the due date until the date a Business pays it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of ASSET MANAGED SOLUTIONS bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.

Appropriation. ASSET MANAGED SOLUTIONS may appropriate any payment received from a Business towards the satisfaction of any indebtedness of a Business to ASSET MANAGED SOLUTIONS under the Agreement.

Withhold payment. A Business may not withhold payment of any amount due to ASSET MANAGED SOLUTIONS for any reason.

Certificate. A certificate, signed by an accountant appointed by ASSET MANAGED SOLUTIONS, of the amount due by a Business and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.

Tax. All Fees exclude any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by a Business in addition to the Fees.

Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.

Payment profile. Each Business (and any signatory) consent and agree that ASSET MANAGED SOLUTIONS may provide any registered credit bureau with information about the payment of amounts.

ACCEPTABLE USE AND CONDUCT

Responsibility. Each User and Business is responsible for its conduct or Content on AMS. Each Business must ensure that its Users have the correct permissions to act on AMS.

Prohibited conduct. Nothing may be unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or harm minors in any way. Do not harass, stalk, degrade, intimidate, or be hateful toward an individual or group of individuals. No one may impersonate any person, falsely state, or otherwise misrepresent its affiliation with any person. Nothing may be false, deceptive, misleading, deceitful, or constitute “bait and switch”. Do not infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party. Any chain letter, pyramid scheme, or advertisement that is prohibited by law, is prohibited on AMS.

The advertising and provision of any illegal service or the sale of any goods that are prohibited or restricted by applicable law are prohibited. Malware or hardware is prohibited. Do not negatively affect the ability of any one else to use AMS. Do not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through AMS. No one may impose an unreasonable or disproportionately large load on ASSET MANAGED SOLUTIONS infrastructure. Do not attempt to gain unauthorised access to AMS or engage in any activity that disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of AMS.

INTELLECTUAL PROPERTY

Ownership. Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of AMS are the sole property of or will vest in ASSET MANAGED SOLUTIONS or a third party licensor. All moral rights are reserved.

Trademarks. ASSET MANAGED SOLUTIONS logo and sub-logos, marks, and trade names are the trademarks of ASSET MANAGED SOLUTIONS and no person may use them without permission. Any other trademark or trade name that may appear on AMS or other marketing material of ASSET MANAGED SOLUTIONS is the property of its respective owner.

Ownership of Content. All right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of Content added by a User is the sole property of or will vest in the Owner or a third party licensor.

Restrictions. Except as expressly permitted under the Agreement, AMS may not be:

modified, distributed, or used to make derivative works;
rented, leased, loaned, sold or assigned;
decompiled, reverse engineered, or copied; or
reproduced, transferred, or distributed.
Sufficient rights. No one may provide Content for which it does not have sufficient rights.

Copyright infringement by a User or Business. Each User or Business must promptly address any written notice to it that its Content infringes the copyrights or other rights of another person. If a User or Business does not promptly remove or change the infringing element of the Content specified in the notice, ASSET MANAGED SOLUTIONS may remove the Content without any liability to any User or Business.

Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.

DISCLAIMER OF WARRANTIES

Disclaimer. Use of AMS is at the sole responsibility and risk of each User or Business. AMS is provided on an “as is” and “as available” basis. Except for the warranties given in the Agreement, ASSET MANAGED SOLUTIONS expressly disclaims all representations, warranties, or conditions of any kind, whether express or implied, including:

any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or
any warranties regards third party software.

ASSET MANAGED SOLUTIONS does not warrant that AMS will meet the requirements of any User or Business or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. Each User or Business should keep up-to-date security software on the systems used to access AMS.

Sales representatives. No sales representatives of ASSET MANAGED SOLUTIONS has the authority to bind ASSET MANAGED SOLUTIONS and no representation, warranty or any other statements made or given by any sales representative of ASSET MANAGED SOLUTIONS will be binding on ASSET MANAGED SOLUTIONS, unless given in Writing and Signed by a duly authorised representative of ASSET MANAGED SOLUTIONS.

INDEMNITY

Each User or Business agrees to indemnify, defend, and hold harmless ASSET MANAGED SOLUTIONS (and its subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees) from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) arising out of or relating to its use of AMS.

LIMITATION OF LIABILITY

Correct faults. ASSET MANAGED SOLUTIONS will correct any fault in AMS where possible and as soon as reasonably practical and this is its entire liability regarding any fault in AMS. If this clause is held inapplicable or unenforceable, then the following clause will apply.

Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, ASSET MANAGED SOLUTIONS maximum liability to a User or Business for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by the Business to ASSET MANAGED SOLUTIONS for the Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.

Indirect damages excluded. To the extent permitted by applicable law, in no event will ASSET MANAGED SOLUTIONS (or its personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.

Errors and modifications. ASSET MANAGED SOLUTIONS is not liable or responsible for errors caused by any modifications to any Content or output once exported or downloaded.

Other web site, goods, or services. ASSET MANAGED SOLUTIONS is not liable for any other web site, goods, or service provided by any third party.

TERMINATION

Discontinue AMS. The Agreement will automatically terminate if ASSET MANAGED SOLUTIONS discontinues AMS.

Breach. If a User or Business:

commits a breach of the Agreement;
repeatedly infringes the copyrights or other rights of others;
fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
effects or attempts to effect a compromise or composition with its creditors; or
is provisionally or finally liquidated or placed under judicial management;
User or Business agrees that ASSET MANAGED SOLUTIONS may, to the extent permitted by applicable law and without prejudice to its rights in the Agreement or in law, deactivate or delete the User’s account (or the Business’s AMS Domain), terminate access to or use of AMS, claim specific performance of the Agreement, or cancel the Agreement immediately on written notice and claim damages from User or Business (including, any claim for any Fees already due).
Effects of termination. On the deactivation or deletion, the Agreement will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry of any Order all amounts due to ASSET MANAGED SOLUTIONS for Services rendered prior to termination will become due and payable even if ASSET MANAGED SOLUTIONS has not invoiced them. A Business may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry of an Order will not affect the enforceability of the terms that are intended to operate after expiry or termination.

DISPUTES

Notifying each other. If there will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:

Negotiation (direct talks to try and agree how to end the dispute); failing which
Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
Mediation. If negotiation fails, the parties must refer the dispute to mediation under the Arbitration Foundation of South Africa’s (AFSA) rules.

Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitration HYPERLINK “http://www.arbitration.co.za/downloads/expedited_rules.pdf”. The arbitration will be held in English where ASSET MANAGED SOLUTIONS head office is situated. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

Periods. The parties may agree in writing to change the periods for negotiation or mediation.

Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

Sever ability. This clause is separate and divisible from the rest of this Agreement and remains effective even if the Agreement ends or is invalid.

Statute of limitations. Any claim or cause of action by a User or Business arising out of or related to the Agreement must (regardless of any statute or law to the contrary) be filed within 12 calendar months after the claim or cause of action arose or be forever barred.

Collection proceedings. ASSET MANAGED SOLUTIONS retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.

NOTICES AND DOMICILE

Notices. All notices, authorisations, disclosures, acknowledgements, and requests must be sent by hand, prepaid registered post, courier, facsimile, or electronic mail to the addresses and numbers provided on AMS. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.

Domicile. Each party chooses its addresses and numbers provided on AMS as its domicilium citandi et executandi (its domicile for being served summons and execution levied) for all purposes.

Change of addresses and numbers. Each party may change the addresses and numbers provided on AMS.

Deemed Delivery. Notice will be deemed delivered on the date shown on the by hand, prepaid registered post, courier, facsimile or electronic mail confirmation of delivery.

Notice actually received. If a notice is actually received by a party, adequate notice will have been given.

CIRCUMSTANCES BEYOND CONTROL

No party will be responsible for any breach of the Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, the Internet, any telecommunications systems, or any computer hardware or software.

CESSION AND ASSIGNMENT

No User or Business may delegate its duties under the Agreement or assign its rights under the Agreement, in whole or in part. ASSET MANAGED SOLUTIONS may assign the Agreement to any successor or purchaser of its business or some of its assets.