MYCITO* Terms of Service

1) Interpretation

• 1.1) The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings -
  • 1.1.1) "AGREEMENT" - means these terms and conditions, and all annexures hereto (as set out in the completed and accepted MYCITO* SaaS Agreement), as may be amended from time to time in accordance with the provisions of this AGREEMENT;
  • 1.1.2) "BUSINESS DAY" - means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
  • 1.1.3) "LICENSEE" - means the entity that has subscribed to the SERVICE;
  • 1.1.4) "LICENSEE SITE" - means the website as specified in this AGREEMENT;
  • 1.1.5) "EFFECTIVE DATE" - means in respect of each SERVICE, the START date of this AGREEMENT, being the date on which the MYCITO* INSTANCE is actioned by MYCITO* and the SERVICE is made available to the USER;
  • 1.1.6) "MYCITO* SITE" - means the website www.mycitoapp.com;
  • 1.1.7) "MYCITO*" - means MYCITO* Business Management Solutions (PTY) LTD (Registration Number 2014/098386/07) and the MYCITO* Partners;
  • 1.1.8) "MYCITO* Partners" - means affiliates, and authorized resellers, distributors, partners and/or vendors of MYCITO* Business Management Solutions (PTY) LTD;
  • 1.1.9) "SERVICE" - means the MYCITO* product which can be accessed through the LICENSEE SITE or the MYCITO* SITE;
  • 1.1.10) "USER/S" - means the named users that are authorized to access and use the SERVICE in terms of this AGREEMENT;
  • 1.1.11) "HELP" - means the electronic help content available inside the SERVICE.
  • 1.1.12) where any number of days is to be calculated, such number shall be calculated as excluding the first day and including the last day . If the last day does not fall on a BUSINESS DAY, the last day shall be deemed to fall on the next BUSINESS DAY;
  • 1.1.13) any reference to days (other than a reference to BUSINESS DAYS), months or years shall be a reference to calendar days, months or years, as the case may be;

2) Use of this Service

• 2.1) MYCITO* hereby allows the LICENSEE to use the SERVICE, subject to the terms and conditions of this AGREEMENT, on a non-exclusive and non-transferable basis.

3) Obligations of MYCITO*

• 3.1) For the duration of this AGREEMENT, MYCITO* shall provide the LICENSEE with the following maintenance and support services in relation to the SERVICE:
  • 3.1.1) MYCITO* will provide adequately skilled technical staff to provide technical assistance and ongoing technical expertise, support and advice to the LICENSEE on BUSINESS DAYS for the purpose of enabling the LICENSEE to adequately use the SERVICE.
  • 3.1.2) MYCITO* will maintain the SERVICE by:
    • 3.1.2.1) diagnosing problems; and
    • 3.1.2.2) correcting legitimate errors.
  • 3.1.3) MYCITO* will create periodic backups of all LICENSEE data within the SERVICE for disaster recovery.
  • 3.1.4) MYCITO* will provide periodic patches, updates and upgrades to the SERVICE.
• 3.2) Within two BUSINESS DAYS of logging a complaint or problem regarding the SERVICE, MYCITO* will respond electronically.
• 3.3) Other than the SERVICES listed, MYCITO* shall not be obliged to provide any other maintenance and support services to the LICENSEE in relation to the SERVICE and should MYCITO* elect to do so, such additional services shall be charged to the LICENSEE in accordance with MYCITO* standard rates.
• 3.4) For the avoidance of doubt it is recorded that services rendered by MYCITO* in connection with the following shall not form part of the obligations of MYCITO* and shall be charged at MYCITO* standard rates:
  • 3.4.1) connection problems related to accessing the SERVICE where such problems are related to the LICENSEE‘s infrastructure or Internet Service Provider;
  • 3.4.2) support of other software (other than the application software of the SERVICE), accessories, attachments, machines, systems or other devices not supplied by MYCITO*;
  • 3.4.3) rectification of lost or corrupted data arising for any reason other than MYCITO* gross negligence. MYCITO* will endeavor to recover lost or corrupted data electronically using application functionality, utilities or operating system commands, but it will not do so by using manual capture methods or the like;
  • 3.4.4) attending on faults caused by the LICENSEE utilizing the SERVICE outside the parameters set by MYCITO*, including but not limited to:
    • 3.4.4.1) utilization outside the design or other specifications in regard to the SERVICE; and
    • 3.4.4.2) utilization outside the permission set forth in this AGREEMENT or in any documentation or manuals supplied by MYCITO* in respect of the SERVICE;
  • 3.4.5) loss or damage caused directly or indirectly by the negligent and/or incorrect use of the SERVICE by the LICENSEE;
  • 3.4.6) diagnosis and/or rectification of problems not associated with the SERVICE;
  • 3.4.7) any additional training which may be required by the LICENSEE in respect of the SERVICE.
• 3.5) MYCITO* shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising as a result of MYCITO* failure, delay or inability to perform any of the maintenance and support services.

4) Obligations of Licensee

• 4.1) The LICENSEE shall at its cost -
  • 4.1.1) provide its own hardware, software and all communications equipment required to connect to and access the SERVICE, (including any costs of ISP, or telephone operator in regard hereto);
  • 4.1.2) provide its own security policies, systems and procedures, so to ensure the integrity and security of its data (including anti-virus software, password policies, employee termination and user expiry procedures);
  • 4.1.3) use the SERVICE in accordance with any MYCITO* instructions that are set out on the MYCITO* SITE from time to time;
  • 4.1.4) use the SERVICE solely for the purpose for which it is designated or intended;
  • 4.1.5) immediately notify MYCITO* of any defects or faults in the SERVICE;
  • 4.1.6) immediately notify MYCITO* of any suspected security breach or compromised account details.
• 4.2) The LICENSEE warrants that it understands the logical access mechanisms associated with the SERVICE to limit access to data to authorized users. It is the sole responsibility of the LICENSEE to configure the required logical access controls.
• 4.3) The LICENSEE undertakes, for the duration of this AGREEMENT, that it will not procure the provision of maintenance, support and training services or any other services in respect of the SERVICE from any third party expressly prohibited by MYCITO* in writing from time to time.
• 4.4) The LICENSEE shall ensure that its access to the MYCITO* SITE and the use of the SERVICE is not illegal or prohibited by laws that apply to it. The MYCITO* SITE may not satisfy the laws of every country. It is the LICENSEE‘s responsibility to ensure whether the MYCITO* SITE and the use of the SERVICE is not contrary to the laws of the jurisdiction where it operates or is based.

5) Term and Termination

• 5.1) In respect of the SERVICE, this AGREEMENT shall commence on the EFFECTIVE DATE and shall continue thereafter indefinitely, until terminated by either party giving the other at least THIRTY (30) DAYS prior written notice of termination, said notice may not be given within NINETY (90) DAYS from the EFFECTIVE DATE.
• 5.2) Notwithstanding any other provision of this AGREEMENT, on termination of this AGREEMENT for any reason whatsoever ("termination date") -
  • 5.2.1) any amounts due and owing to MYCITO* shall immediately be paid to MYCITO*; and
  • 5.2.2) MYCITO* shall be entitled to block all access to the service and;
  • 5.2.3) MYCITO* shall be entitled to permanently delete and destroy all copies of the LICENSEE‘s data, following the last and final backup of all LICENSEE data within the SERVICE.

6) Fees and Payment

• 6.1) In consideration for the access to and use of the SERVICE, the LICENSEE shall pay to MYCITO* fees monthly calculated per USER, and based on the maximum number of licensed USERS whether or not they accessed or used the SERVICE during that month.
• 6.2) MYCITO* shall charge the LICENSEE in accordance with MYCITO* standard consulting rates, from time to time, for any consulting work that may be commissioned by the LICENSEE.
• 6.3) All fees and charges are payable by the LICENSEE without deduction or set off of any nature, free of exchange, bank costs and other charges.
• 6.4) MYCITO* shall be entitled to increase all rates, fees and charges annually on the 28th of February every year by a maximum of 10% (ten percent).
• 6.5) Unless otherwise clearly stipulated, all fees and charges payable under this AGREEMENT are exclusive of VAT and any other statutory levies, taxes and imposts (collectively referred to as "taxes"), and such taxes shall be paid by the LICENSEE.
• 6.6) MYCITO* shall be entitled, on or before the first day of each month, to e-mail the LICENSEE, at the e-mail address provided hereto, an electronic invoice setting out -
  • 6.6.1) the amount due by the LICENSEE to MYCITO*;
  • 6.6.2) VAT on all amounts due by the LICENSEE to MYCITO*; and
  • 6.6.3) the net amount due and payable by the LICENSEE to MYCITO* in respect of each such invoice.
• 6.7) The LICENSEE shall pay the full amount set out in each invoice furnished by MYCITO* to it within 7 (SEVEN) DAYS of receipt of such invoice by electronic funds transfer into such bank account as may be nominated by MYCITO* in writing from time to time.
• 6.8) The LICENSEE shall not under any circumstances be entitled to withhold payment of any amount due under this AGREEMENT.
• 6.9) In the event that the LICENSEE fails to make due and timeous payment of any amount owing to MYCITO* under this AGREEMENT-
  • 6.9.1) MYCITO* shall be entitled to suspend the use of the SERVICE and/or the supply of all maintenance and support services, until such time as the LICENSEE has paid such fees, including any interest which may have accrued thereon;
  • 6.9.2) MYCITO* shall have no obligation to preserve any of the LICENSEE‘s data that may have been captured by using the SERVICE; and
  • 6.9.3) such amount shall bear interest at 2% (TWO) PERCENT per month from the due date; and
  • 6.9.4) such amount shall bear various administrative fees until payment thereof has been received by MYCITO* in full.
• 6.10) Should any dispute arise out of the provisions of this clause and failing agreement between the parties, a certificate under the hand of MYCITO* auditor shall be final and binding on the parties.

7) Intellectual Property

• 7.1) All right and title in and to the SERVICE, including without limitation any and all of the trade names, trademarks, copyrights, source codes, and other intellectual property rights used or embodied in or in connection with the SERVICE, including any documentation or manuals in relation thereto, shall be and remain the sole property of CITO* and no intellectual property rights therein are granted or assigned under this AGREEMENT. The LICENSEE shall not at any time in any way question or dispute the ownership of CITO* of any such item and undertakes not to infringe or prejudice any rights of CITO* in and to the SERVICE.
• 7.2) In the event that new copyright, inventions, designs or processes evolve in the performance of or as a result of this AGREEMENT, the LICENSEE acknowledges that such new inventions, designs or processes shall be the property of CITO* unless otherwise agreed to in writing by CITO*.
• 7.3) Neither party shall acquire any right, title or interest (without the prior written consent of the other party) entitling it to use the name, service marks, trademarks or logos of the other. The parties undertake in favor of one another not to perform any act, which would injure the reputation or goodwill attaching to their respective names and trademarks or which would prejudice their rights in and to such names and trademarks.

8) Content and Digital Assets

• 8.1) All digital assets, including: images, audio, video, music, movies and/or photos provided by MYCITO* will be considered free of any rights unless such rights are specified by control licenses or conditions of use. Any digital assets, inclusive of those mentioned above provided to MYCITO* by the LICENSEE will be assumed to be the property of or licensed to the LICENSEE. The LICENSEE assuming full legal responsibility for use of such digital assets.
• 8.2) All content, text, photos, documents or images which are supplied, uploaded or captured by either the LICENSEE or MYCITO* will be assumed to be the property of the LICENSEE and the LICENSEE being holder of all copyrights thereof. MYCITO* will not accept any responsibility for any contravention of any law caused by the uploading or capturing of any content done on behalf of the LICENSEE by MYCITO*.

9) Confidentiality

• 9.1) The SERVICE and all information, data, drawings, documentation, manuals, source and object codes relating thereto (collectively referred to as the "trade secrets") are proprietary to CITO* and constitute trade secrets and confidential information of CITO*.
• 9.2) Each party shall, for the duration of this AGREEMENT, keep all written instructions, drawings, notes, memoranda, manuals or records and any trade secrets of the other party which comes into its possession, in strict confidence and will not divulge any such information to any third party or use any such information other than as contemplated in this AGREEMENT.
• 9.3) The LICENSEE further agrees that it shall not attempt to and shall not, directly or indirectly, modify, vary, enhance, decompile, disassemble, reverse engineer, copy, sell, lease, license, sub-license or otherwise deal with the SERVICE or any part, variation, modification, copies, releases, versions or enhancements thereof or any supporting software or have any software or other program written or developed for it based on any confidential information or trade secrets supplied to it by CITO* or which it becomes possessed of pursuant to this AGREEMENT, save and except with the prior written consent of CITO*.

10) Data Protection

• 10.1) MYCITO* acknowledges that in providing the SERVICE to the LICENSEE, MYCITO* may be exposed to certain data of the LICENSEE (DATA).
• 10.2) The parties specifically record that all DATA provided or to which MYCITO* may be exposed, shall constitute Confidential Information and where applicable, intellectual property belonging to the LICENSEE.
• 10.3) MYCITO* hereby warrants and undertakes that it shall not, at any time, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use DATA for any purpose other than to the extent necessary to provide the SERVICE to the LICENSEE, without the express prior written consent of the LICENSEE.
• 10.4) MYCITO* further warrants that it shall ensure that all its systems and operations which it uses to provide the SERVICE, including all systems on which DATA is copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the SERVICE, shall at all times be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of data within the industry in which MYCITO* operates.

11) Fair Use and Usage Restrictions

• 11.1) The SERVICE provides for customer data to be accessed programmatically via a number of mechanisms including programmatic web access, web services, and e-mail based integration. MYCITO* reserves the right to terminate such access or otherwise suspend the SERVICE without notice if such programmatic access, at its sole discretion, is deemed to be excessive, malicious or if it adversely affects its ability to provide the SERVICE.
• 11.2) The SERVICE provides the capability for the LICENSEE to store documents. Although there are no restrictions on the number or aggregate size of the documents stored, MYCITO* reserves the right to limit or otherwise prevent the storage of documents if, at its sole discretion such document storage does not constitute fair use.
• 11.3) The SERVICE may not be accessed by a direct competitor of MYCITO* (or an employee, contractor or agent thereof) without the prior written consent of MYCITO*.

12) Warranties

• 12.1) MYCITO* warrants to the LICENSEE that:
  • 12.1.1) it has the right to grant to the LICENSEE the rights granted in this AGREEMENT;
  • 12.1.2) it has the necessary resources and skills to comply with its obligations in terms of this AGREEMENT;
  • 12.1.3) the SERVICE will perform in accordance with the description set out on the MYCITO* SITE from the EFFECTIVE DATE.
• 12.2) No other warranties, whether express, implied in law or residual, including, without limitation, the warranties of merchantability and fitness for a particular purpose of the SERVICE, are made by MYCITO*.

13) Limitation of Liability

• 13.1) Neither party shall have any claim against the other in respect of any loss, claim, action, damage, or expense suffered or sustained by the other party pursuant to a breach by that party of its obligations under this AGREEMENT, unless such loss, claim, action, damage or expense arises out or is attributable to a negligent act or omission on the part of the other party.
• 13.2) Notwithstanding anything to the contrary contained in this AGREEMENT, neither party shall be liable to the other in any circumstances whatsoever for any indirect, contingent or consequential loss (including but not limited to loss of revenue, loss of business, loss of profit and/or loss of data) sustained or incurred by the other party howsoever arising.
• 13.3) Notwithstanding anything to the contrary contained in this AGREEMENT, MYCITO* maximum aggregate liability for any loss, liability, damage or expense of whatsoever nature that may arise in respect of this AGREEMENT shall be limited to the fees payable by the LICENSEE in the previous 3 (THREE) MONTHS.

14) Domiculium and Notices

• 14.1) MYCITO* may give notice by means of a general notice on the Service or electronic mail to the LICENSEE‘s e-mail address on record in MYCITO* account information. Such notice shall be deemed to have been given upon the expiration of 24 (TWENTY FOUR) HOURS after sending.
• 14.2) LICENSEE may give notice to MYCITO* (such notice shall be deemed given when received by MYCITO*) at any time by electronic mail to support@mycitoapp.com

15) Publicity

• 15.1) For the duration of this AGREEMENT MYCITO* shall be entitled to publish notification of the existence of this AGREEMENT in any list indicating the identity of the LICENSEE as being a LICENSEE of MYCITO* utilizing the SERVICE.

16) Force Majeure

• 16.1) If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this AGREEMENT by reason of any event constituting force majeure, then the other party shall be relieved of its obligations hereunder during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations under this AGREEMENT during such period.
• 16.2) An "event of force majeure" shall mean any event or circumstance whatsoever which is not within the reasonable control of that party including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities, the downtime of any external line.
• 16.3) Should the force majeure continue for a period of longer than 30 (THIRTY) DAYS, either party may cancel this AGREEMENT.

17) Assignment

• 17.1) MYCITO* shall be entitled to transfer all or any of its rights or obligations in terms of this AGREEMENT without the prior written consent of the LICENSEE, provided that, in the event of the transfer of obligations, the assignee is capable of fulfilling MYCITO* obligations under this AGREEMENT .
• 17.2) The LICENSEE may not cede, assign or otherwise transfer (collectively "transfer") any of its rights and/or obligations under this AGREEMENT to another party.

18) Applicable Law and Jurisdiction

• 18.1) Save as otherwise provided herein, the parties hereby consent and submit to the non-exclusive jurisdiction of the North Gauteng Division of the High Court of the Republic of South Africa for the purpose of all or any legal proceedings arising from or concerning this AGREEMENT.
• 18.2) This AGREEMENT (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the parties in terms of and arising out of the conclusion, breach and termination of the provisions of this AGREEMENT) shall be interpreted and governed in all respects by the laws of the Republic of South Africa.
• 18.3) This AGREEMENT constitutes the sole record of the agreement between the parties in regard to the subject matter thereof, and supersedes all previous agreements, understandings and arrangements between the parties, whether written or oral.
• 18.4) Neither party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein.
• 18.5) No indulgence which either party may grant to the other shall constitute a waiver of any of the rights of the grantor.

19) Amendments

• 19.1) MYCITO* reserves the right to amend the terms and conditions of this AGREEMENT at any time with notice. The LICENSEE shall be informed of such amendments by e-mail or by notice on the MYCITO* SITE.