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Terms and conditions of use

Last updated: January 26, 2024

Index

  1. Definitions
  2. Description of Services
  3. Supply of Services
  4. Use of Services
  5. Subscription and Term
  6. Payment
  7. Obligations of the Customer and/or End User
  8. Verification of Customer
  9. Limitations in Respect of the Service
  10. Confidentiality
  11. Intellectual Property
  12. Processing of Personal Information
  13. Changes to the Terms and Conditions
  14. Linking to Third Party Websites
  15. Stipulation for Third Parties
  16. Breach
  17. Termination
  18. Applicable Law
  19. Severability
  20. Domicilium and Notices
  21. General

1. DEFINITIONS

In these terms and conditions, unless the context indicates a contrary intention, the following words and expressions bear the following meanings:

  1. “Affiliates” – any associate and subsidiary of the service provider.
  2. “Agreement” – this document or any documentation referred to in this Agreement.
  3. “Business Hours” – between 07:00 – 16:00 on any Business Day. All reference to time shall be based upon South African Standard time.
  4. “Business Day” – Monday to Friday, excluding Saturday, Sunday and Public Holidays.
  5. “Customer” – a person to whom a License has been granted to make use of the Software, which includes a person who signs up for the 30-day free trial period.
  6. “Consent” – voluntary and informed expression of will in terms of which permission is given in respect of the processing of personal information.
  7. “Confidential information” – any records, data and information that is collected, received, processed, stored or transmitted as a result of this agreement or which under the circumstances surrounding disclosure should be treated as confidential, but excludes the following instances:
    1. Information that is already public knowledge;
    2. Information that is disclosed to satisfy an order of a competent court or comply with the provisions of law;
    3. Information which is or becomes available from a third party who is legally entitled to possess such information and provide the information to the receiving party without a confidentiality restriction.
  8. “Data Protection Law” – all applicable laws of the Republic of South Africa and regulations governing the use or processing of Personal information as amended or updated from time to time.
  9. “Effective Date” – date on which you accept and sign up with the Service Provider, or the date you access and use the Software for the first time, whichever is the earlier date.
  10. “End User” – any person of the Customer who makes use of the Software.
  11. "Intellectual Property" – any know-how (not in the public domain), invention (whether patented or not), design, trade mark (whether registered or not), or copyright material (whether registered or not), processes, process methodology (whether patented or not) and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property of Kibo;
  12. “Microsoft Azure Platform” – a platform as a service solution for hosting solutions using Microsoft’s products. It is a comprehensive suite of cloud products.
  13. “Microsoft” – the Microsoft Corporation or one of its group Companies.
  14. “Service” – refers to the DaraGrows platform and the Microsoft Azure Platform allowing you to access the software under the DaraGrows Platform.
  15. “Service Provider” – Kibo Computer Services (Pty) Ltd, a private company, duly incorporate in accordance with the company laws of South Africa, with registration number: 2006/012475/07 and shall include all of its employees, affiliates, directors and service providers.
  16. “Software” – the Software referred to as DaraGrows procured by the Service Provider.
  17. “Third Party Website” – any website that is not owned by the Service Provider.
  18. “Website” – the website on the domain www.mydatagrows.com and www.mydatagrowsblog.com and all the pages on the said domain as well as all downloads, uploads or other items accessible on the website but shall not include Third Party Websites.
  19. In this agreement –
    1. Headings are for convenience only and are not to be used in its Interpretation.
    2. Any gender includes the other gender;
    3. All natural persons include a juristic person and vice versa.

2. DESCRIPTION OF SERVICES

  1. The Service Provider has created the Service to allow Customers and/or End Users to create databases to capture information which the Customers and/or End User would normally have to track.
  2. The Service Provider stores the data using Microsoft Azure and runs regular backups.
  3. The Service is the provision of a database hosting platform.
  4. Customers and/or End Users make use of this Service entirely at their own risk. The Service Provider utilizes information submitted by the Customer and allows the storage of the information.

3. SUPPLY OF SERVICES

  1. The Service Provider will provide the services to the Customer subject to the terms and conditions of this Agreement.
  2. The Service Provider shall notify the Customer that it has completed the vetting process, invoicing shall commence thereafter.
  3. In the event of Customer support being required, the Customer and/or End User must make use of the support procedure of the Service Provider.
  4. The Customer and/or End User agrees and acknowledges that the Microsoft Azure Platform is provided by Microsoft and agrees to be bound by the additional terms and conditions for Microsoft Azure which terms can be accessed from the following link https://go.microsoft.com/fwlink/?LinkId=206977. Where there is a conflict between these terms and conditions and the additional terms and conditions of Microsoft Azure, the Microsoft Azure terms and conditions shall prevail in respect of matters pertaining to the Microsoft Azure Platform.

4. USE OF SERVICES

  1. The Service Provider has the right to provide and support the services. This right is granted on a non-exclusive, non-transferable basis and is subject to the terms and conditions of this agreement which may be updated and amended from time to time.
  2. The Customer and/or End User takes responsibility for the usage of the Services and the Service Provider takes no responsibility for the failure to use or misuse of the services by any of the associates of the Customer and/or End User.
  3. The access to the Services is restricted to authorized Customer.

5. SUBSCRIPTION AND TERM

  1. This Agreement will commence on the Effective Date.
  2. As from the Effective Date, or until the Agreement is terminated, the Service Provider provides the Customer with a limited non-exclusive; non-transferable and recoverable license to use the Software on the following terms:
    1. User licenses are determined on a per license basis, users often start with one(1) or two (2) Accountants within the Firm and add the rest later on
  3. The Customer and/or End User acknowledges that it does not obtain any rights of ownership to the Software.

6. PAYMENT

  1. The pricing associated with the Software can be found on https://www.mydatagrows.com/pricing
  2. The Service Provider provides the Service and charges a monthly service fee.
  3. The Service Provider reserves the right to increase the pricing once a year.
  4. The Service Provider shall not be liable in the event of suspension, termination, interruption or any other interference with the Service regardless of the losses suffered or the cause of such interference.
  5. Should any disputes arise in respect of the account of the Customer, the Customer is to notify the Service Provider in writing within 14 (fourteen) days of becoming aware of the issue.
  6. Interest may be charged on late payments by the Customer.

7. OBLIGATIONS OF THE CUSTOMER AND/OR END USER

  1. To ensure that the information is not in a format that could be used to harm the Customer or any Third Party.
  2. To ensure that the Service is utilized responsibly and to ensure that any information that is used and or stored has been provided to the Customer and/or End User with any necessary consent and/or authorization.
  3. Compliance with all of the policies and agreements issued by the Service Provider in relation to the use of the Services.
  4. The responsibility to manage the data processing through the use of the Services.
  5. You may not utilize the Services in a manner that is illegal, disrupts the use of the Services including without limitation:
    1. Hacking any security mechanism of the Services;
    2. Sending harassing or offensive electronic mail;
    3. Forgery (attempted forgery) of any electronic mail;
    4. Transmitting or storing any defamatory material.
  6. Further obligations imposed on Customers through the application of this Agreement.

8. VERIFICATION OF CUSTOMER

  1. The Service Provider performs a verification on each Customer who registers to use the Service or 30-day free trial.
  2. All Customers who wish to make use of the Service are required to register and provide a certain level of information before they can register.
  3. Based on the information provided, the Service Provider will allow registration which will allow the Customer and/or End User to make use of the Service.
  4. The Service Provider will take all reasonable steps to ensure that the information provided by the Customer and/or End Users is protected and treated as strictly confidential as well as information stored whilst making use of the Service.

9. LIMITATIONS IN RESPECT OF THE SERVICE

  1. The Services are provided in good faith and to the best of the ability of the Service Provider in terms of availability, security and performance.
  2. The Service Provider will make use of reasonable endeavors to ensure that the Service is available 24 (twenty-four) hours a day, 7 (seven) days a week.
  3. The Service Provider reserves the right to carry out routine maintenance on the Service, this will be scheduled for outside of business hours and communicated to the Customer.
  4. The Service Provider will make use of reasonable endeavors to prevent security breaches.
  5. The Customer confirms that the Service Provider will not be held liable or responsible for any loss (including loss of information; data) or damage including consequential damage resulting directly or indirectly from any use of the Software.
  6. If the Customer suffers any loss or damage as a result of its failure to comply with this Agreement, any claim by the Customer against the Service Provider will be limited in respect of one incident to the fees paid by the Customer in the previous 2 months.
  7. If the Customer is not satisfied with the Service, its sole remedy is to terminate this Agreement, after contacting support@mydatagrows.com to discuss grievances.
  8. The Customer bears the responsibility to use the information available to them reasonably and safely and the Service Provider provides no guarantee as to the accuracy of the information.

10. CONFIDENTIALITY

  1. Unless prior written consent is obtained of the other or unless there is a legal obligation to do so:
    1. All Confidential Information obtained during the course of this Agreement shall be preserved, neither party to this Agreement will disclose, make it known to any individual or use the same for its own benefit other than as contemplated by this Agreement, excepting if:
      1. it becomes public knowledge;
      2. it is obtained from a third party under a lawful circumstance;
      3. it has been developed independently without access to the Confidential Information.
  2. The Customer and End User shall not disclose or allow any of the individuals under its employ to disclose any information about the Services/Software or features to anyone who is not entitled thereto.
  3. The Customer and End User undertakes to protect the Intellectual Property of the Service Provider at all times.
  4. The above obligation endures for an indefinite period regardless of the termination of this Agreement for any reason.

11. INTELLECTUAL PROPERTY

  1. The Customer acknowledges that ownership of all Intellectual Property including any modifications or adaptations produced in the course of providing the Services shall remain vested in the Service Provider.
  2. The Service Provider retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services.
  3. No unauthorised use of any of the Service Provider’s Intellectual Property is permitted.
  4. Any party seeking a license to make use of any of the Service Provider’s Intellectual Property must formally request such a license.
  5. The Service Provider reserves the right to grant, suspend, terminate or otherwise deal with any license in respect of its Intellectual Property.

12. PROCESSING OF PERSONAL INFORMATION

  1. Both parties acknowledge that the other Party requires their personal information, as defined in the Protection of Personal Information Act of 2013 (‘POPIA’) and voluntarily consents to the other Party processing such information in order to:
    1. fulfil their obligations in terms of this Agreement and/or obligations incidental hereto;
  2. Both Parties may transmit personal information relating to the other Party to third-party service providers for the purposes of storing and maintaining that information.
  3. The Parties shall comply with all data protection legislation applicable to them respectively, including POPIA.
  4. Both Parties will establish and maintain reasonable security measures to secure the integrity and confidentiality of any personal information that they process in accordance with the laws of the Republic of South Africa.

13. CHANGES TO THE TERMS AND CONDITIONS

  1. These Terms and Conditions are subject to change at the discretion of the Service Provider, the Agreement will be updated from time to time as and when the Service Provider deems it necessary.
  2. The Customer is deemed to have read the most recent Terms and Conditions as soon as same is made available on the Service Provider and the Software’s Websites.
  3. The obligation is placed on the Customer to ensure that the Terms and Conditions are checked in order to ensure that they are aware of any and all changes to the Terms and Conditions.
  4. The Customer and/or End User agree to be bound by the Terms and Conditions by utilizing the Services.

14. LINKING TO THIRD PARTY WEBSITES

  1. The Service and any of its associated tools, such as the Website, may link to websites or Services offered by other individuals or entities.
  2. Insofar as any such links exist, the Customer and End User by using the Services, agree that the Service Provider makes no guarantee regarding those Third-Party Websites and/or services.
  3. Any following of Third-Party links or using of Third-Party services is done at the sole risk of the Customer and End User and the Service Provider shall bear no liability, however so arising, of whatsoever nature and whether directly or indirectly related to the use of the Service.

15. STIPULATION FOR THIRD PARTIES

  1. The parties agree that this Agreement is stipulated for the benefit of the Third-Party as well as the Service Provider and agree that the Third-party is deemed to have accepted this benefit.
  2. The Service Provider shall have the right to proceed in law against the Customer without reference to the Third Party, should the Customer be in breach of any provision of this Agreement or statutory provision which affects the Service Provider’s rights directly without affecting those of the Third Party.

16. BREACH

  1. The Customer must be notified in writing by the Service Provider of any breach that has been committed.
  2. The Service Provider must notify the Customer within 7 (seven) business days from the day upon which same first became aware of the breach.
  3. The Customer shall be in breach of this Agreement if:
    1. In the event of a breach of any of the clauses of this Agreement and if the breach is capable of being remedied, is not remedied within 14 (fourteen) business days of receiving the notice of such breach.
    2. Any non-payment of the account in respect of this Agreement which shall constitute a breach without any notice being provided to this effect.
    3. The Customer commits an act of insolvency or is placed under provisional or final winding up or makes an assignment for the benefit of its Creditors or fails to satisfy steps to set aside any judgment taken against it within a reasonable time after becoming aware of such judgment.
  4. Remedies in the case of a breach:
    1. Obtain an order for specific performance with or without a claim for damages;
    2. Cancel this Agreement and the Customer/End User’s access to the Services;
    3. Suspend the Customer/End User’s use of the Services;
    4. Terminate the Customer/End User’s access to all the data on the Services.

17. TERMINATION

  1. The Service Provider may terminate this Agreement immediately in the event of a material breach that is not remedied within 30 (thirty) Business Days of receiving the written notification requiring the Customer to do so.
  2. On the termination of this Agreement, all Confidential Information must be returned and/or destroyed and the Customer must provide confirmation of this in writing to the Service Provider.

18. APPLICABLE LAW

These Terms and Conditions are to be interpreted and construed in accordance with the laws of the Republic of South Africa.

19. SEVERABILITY

If any term contained in these Terms and Conditions is found not to be enforceable, the remainder of these Terms and Conditions shall continue to operate with any necessary changes and the unenforceability of one term shall not affect the other terms.

20. DOMICILLIUM AND NOTICES

  1. The chosen Domicillum for purposes of this Agreement will be the addresses that are listed on the documentation submitted by the Customer at the time of signing up to the Services.
  2. All notices; requests; consents and other communications shall be in writing and deemed to be given on the same day if delivered personally or sent by email.

21. GENERAL

  1. This Agreement constitutes the sole record of this Agreement between the parties in relation to the subject matter hereof. No undertaking, representation or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any parties.
  2. No variation or cancellation of this agreement will be in force or effect unless it is reduced to writing and signed by both parties.