Terms Of Service

SMRYT Terms of Service

Last Updated: October, 2021

 

Thank you for choosing SMRYT for your business.

 

When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations. 

 

SMRYT provides online design, development & business management website software services utilising the WIX platform and creating a website with backend operation specific to your needs.(“Software Service”). You can access the Software Service via the client login page on your Websites and through the Apps.

 

These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates.

 

By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.

 

This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement otherwise indicate that you accept this Agreement (including through the Welcome Agreement), or (b) the date you (or an Affiliate) first access or use the Services.

 

The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.

1. General Terms

  • Agreement. This Agreement is a binding legal agreement between you and the applicable SMRYT Entity indicated below as  (“SMRYT”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and SMRYT are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”

  • This Agreement applies to any use of the Services

 

Changes to the Agreement.

 

We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our website (or such other URL as specified by SMRYT), as may be updated by SMRYT from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by submitting a request to support@smryt.com

It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed.

  • Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.

2. Services

  • SMRYT designs and develops website as well as software solutions utilising APPS within the WIX platform, herewith-in referred to as Software Services

  • It is noted that these app as well as self-subscription to such service is available directly to you the client through the wix platform however such knowledge of design, development and business operational infrastructure implementation is not and this is the service you are subscribing to at SMRYT.

  • Access and Service Levels. SMRYT will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”) and Welcome Agreement.

  • Changes to Services. Notwithstanding Section 2 , in addition to our rights set forth in Section 8, we reserve the right to suspend any Services (a) in connection with a Force Majeure event, (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the SLA. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

  • Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply SMRYT’s endorsement of or affiliation with the provider. SMRYT does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. SMRYT has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting SMRYT to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS). 

  • Support Services. As part of the Services you will have access to SMRYT’s standard support services described in your welcome agreement. For an additional fee, you may purchase Professional Services as described by SMRYT from time to time, as may be updated by SMRYT from time to time.

  • Payment Processing. SMRYT offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by a third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
    At SMRYT's sole discretion, you may be offered Payment Processing Services provided by a WIX enabled partner in your region. These payment processors charge fees and surcharges will be communicated to you during the enrolment process. All associated queries with regard to payment processing must be directed to the provider. SMRYT will merely advise of the e-commerce options available to you. You will sign up direct with the provider and mark SMRYT as your developer through this process. You will furthermore provide the associated KEY for payment integration. Should you require assistance with the payment processor SMRYT will charge the associated consultation time rate

3. Your Responsibilities

  • Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by SMRYT, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.

  • Data; Unauthorised Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify SMRYT promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.

  • Restrictions on Use. You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, SMRYT grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. SMRYT reserves the right to revoke these permissions at any time and without notice.

  • Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.

  • User Names and Passwords. SMRYT may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of SMRYT. You, and not SMRYT, are responsible for any use or misuse of user names or passwords associated with your account.

  • Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.

4. Fees and Payment

  • Software Services Fees. Unless otherwise stated, fees for the Software Services (“Subscription Fees”) are set forth on the applicable marketing materials and agreed with you on time of subscription

  • Change in Subscription Fees. Unless otherwise specified in the Welcome Agreement, the Subscription Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable Website when each Renewal Term begins. If You have a welcome agreement, SMRYT may increase any fees specified in a welcome agreement, provided the increase will not become effective until the subsequent Renewal Term. Prices are subject to change for those Services you have elected not to purchase or that are otherwise not identified in the welcome agreement. Service will be suspended if you do not pay the Subscription Fee.

  • Payment Terms. You agree to pay the Subscription Fees and any other applicable fees stated in the welcome agreement or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancellable and all fees paid are non-refundable. Unless otherwise stated in the welcome agreement, fees must be paid in advance of each billing period. You are responsible to pay SMRYT accordingly. If you provide credit card information, you represent that you are authorized to use the card and you authorize SMRYT to charge the card for all payments hereunder. By submitting payment information, you authorize SMRYT to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by SMRYT for purposes of acknowledging or completing any payment.

  • Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at the lesser of either (a) 1.5% of the outstanding balance per month, or (b) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by SMRYT within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and SMRYT will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.2.

  • Payment Errors. If you believe a payment has been processed in error, you must provide written notice to SMRYT within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute ("Payment Error Notice"). If the Payment Error Notice is not received by SMRYT within such thirty (30) day period, the payment will be deemed final.

  • Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If SMRYT is legally required to pay or collect any Taxes on your behalf, SMRYT will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities (e.g., vat) regarding transactions that we process and merchants to which we provide Payment Processing Services are provided. For clarity, SMRYT will be solely responsible for taxes assessed on SMRYT based on its income.

  • You will be charged reconnection fees for late payment of subscriptions fees that has resulted in your software being disconnected. Such fees are at the discretion of smryt and directly linked to the time taken to reconnect your site. These fees are currently billed at R2000-00 maximum charge

5. Intellectual Property Rights

  • SMRYT Intellectual Property. SMRYT or its affiliates own all right, title and interest in and to the Services, the SMRYT Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, SMRYT and its affiliates reserve all rights, title and interest in and to the Services, the SMRYT Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and SMRYT, all SMRYT Marks are owned by SMRYT or its affiliates. You agree not to display or use any SMRYT Marks in any manner without SMRYT’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.

  • License Grant to You. Subject to the terms and conditions of this Agreement, SMRYT hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in the welcome agreement, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by SMRYT in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

  • License Grant to SMRYT. You hereby grant to SMRYT and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or SMRYT’s or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with SMRYT’s business, and (z) for Marketing Services. SMRYT agrees that any use by SMRYT of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to SMRYT or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.

6. Data Ownership and Use

  • Your Data. As between you and SMRYT, you own all right, title and interest in Your Data. You hereby grant to SMRYT a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing SMRYT’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to SMRYT that you have all rights necessary to grant the licenses in this Section 6., and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party. 

  • SMRYT Data. Notwithstanding Section 6., all right, title and interest in any data or information collected by SMRYT independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information SMRYT obtains about End Users through the SMRYT App (whether the same as Your Data or otherwise), will be solely owned by SMRYT (collectively, “SMRYT Data”).

  • Aggregated Data. You agree SMRYT owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit SMRYT or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.

  • Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that SMRYT has no obligation whatsoever to resolve or intervene in such disputes.

7. Confidential Information

  • A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict SMRYT with respect to SMRYT Data or Aggregated Data.

8. Term, Termination and Suspension

  • Term. Unless otherwise specified in the welcome agreement, the initial term of this Agreement is 3 years (“Initial Term”). The Initial Term begins on the Effective Date and, unless otherwise specified in an Order Form, automatically renews in successive and consecutive thirty (30) day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least thirty (30) days’ notice before the end of the relevant Subscription Term. If you elect to terminate this Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term or by agreement as documented on the welcome agreement. 

  • Termination for Cause. SMRYT may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe SMRYT, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to SMRYT for the period prior to the effective date of termination.

Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) the welcome agreement will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, SMRYT will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.

If at any time during the Subscription Term you require SMRYT’s assistance in retrieving Your Data, additional fees may apply.

 

9. Warranties & Disclaimer

  • Accuracy of Your Account Information. You agree to provide SMRYT with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by SMRYT (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify SMRYT in writing if any Account Information changes. You agree that SMRYT has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.

Warranty of Functionality. SMRYT warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that SMRYT will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If SMRYT is unable to restore such functionality, you may terminate the Agreement by providing written notice to SMRYT, and you will be entitled to receive a pro-rata refund of any pre-paid fees. SMRYT will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta services.

  • DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMRYT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. SMRYT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH SMRYT AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “SMRYT PARTIES”).

10. Indemnification

  • You agree to indemnify, defend, and hold harmless the SMRYT Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.

 

11. Limitations and Exclusions of Liability

  • SMRYT EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SMRYT. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
    TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SMRYT PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR R1 000-00 (ZAR), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH SMRYT AND THE SMRYT PARTIES.
    IN NO EVENT WILL ANY SMRYT PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF SMRYT, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
    THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Miscellaneous

  • Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of South Africa without regard to conflicts of laws principles.

  • Mandatory Informal Dispute Resolution. If you have any dispute with SMRYT arising out of or relating to this Agreement, you agree to notify SMRYT in writing with a brief, written description of the dispute and your contact information, and SMRYT will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

  • Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SMRYT, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 12 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND SMRYT AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.

  • Entire Agreement. This Agreement, together with the welcome agreement and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and SMRYT with respect to the subject matter hereof. In the event of a conflict between the welcome agreement and this Agreement, the welcome agreement will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between SMRYT, on the one hand, and you or any Affiliate, on the other hand.

  • Waiver and Severability. No waiver of any provision of this Agreement by SMRYT will be effective unless in writing and signed by SMRYT. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

  • Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without SMRYT’s prior written consent. SMRYT may assign, transfer or sublicense any or all of SMRYT’s rights or obligations under this Agreement without restriction.                  

  • Notices. Any notices provided by SMRYT under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from SMRYT through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to SMRYT under this Agreement must be delivered via registered mail to SMRYT 8 West Road South, Morningside Sandton South Africa 2196 address for Attention Gavin Cohn

  • Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving SMRYT’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. 

  • Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

  • Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and SMRYT.