1. ACCEPTANCE OF TERMS
A. This Agreement, which incorporates by reference other provisions applicable to use of the Website, including, but not limited to terms and conditions set forth herein governing the use of certain specific material contained in the Website, set forth the terms and conditions that apply to use of the Website by the Subscriber and User(s).
B. By using the Chili Suite Online Business Software, the TOU will apply in full force and effect and furthermore, the Subscriber and User(s) expressly accept all the terms contained herein in full by clicking on the "I agree"/"Yes" button below which indicates the acceptance of the Agreement. This will be the legal equivalent of a signature on a written agreement and will be equally binding. Only by accepting the Agreement will the Subscriber and/or User(s) be able to access and use the Chilli Suite Online Business Software. The Subscriber or User(s) must refrain from using the Chili Suite Online Business Software, if the Subscriber or User(s) have any objection to any of the terms contained herein.
C. The Subscriber and the User(s) must be of a legal age to enter into a binding agreement in order to use the Chili Suite Online Business Software.
The following definitions shall apply in this Agreement, unless otherwise explicitly stated or unless the contrary explicitly appears from the context thereof:
2.1 "Agreement" means, these terms and conditions of use, including any Schedules, as published and amended from time to time.
2.2 "Chili Suite" means, Matrix proprietary online business management software applications and user interfaces made available to the Subscriber and User(s) by Matrix including accounting, inventory and personal protective equipment (PPE) management functions. Chili Suite may contain third party components which are licensed to Matrix.
2.3 "Chili Suite Online Business Software" means the Documentation, the Chilli Suite, the Services and the Website.
2.4 "Default" means, any breach of the Agreement by either the Subscriber or User(s) or Matrix or any act, omission or negligence in respect of which liability arises from the defaulting party to the other.
2.5 "Documentation" means, the written material relating to the operation and use of the Chili Suite, including, but not limited to, user manuals, user guides, technical manuals, release note , and online help files regarding the use of the Chili Suite provided as part of the Service, and any other materials prepared in connection with any Chili Suite modification, correction, or enhancement, and shall include any updated versions of Documentation as may be provided by Matrix from time to time (1) in the course of providing the Service; (2) as part of online tutorials or help files provided with the Service.
2.6 "Electronic Communications" means, any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service.
2.7 "Service" means, the Chili Suite offered to the Subscriber and User(s) on a Subscription basis.
2.8 "Subscriber" means the individual or representative of an entity that completes the Online Registration process on the Website, alternatively applies for Subscription to the Chili Suite Online Business Software, and alternatively individual or representative responsible for payment of the Subscription Fees.
2.9 "Subscriber Data" means, all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that the Subscriber or User(s) create, installs, uploads to or transfers in or through the Service or provides in the course of using the Service, excluding identification and other information provided by the Subscriber relative to the User(s).
2.10 "Subscription" means, the right to access the Chili Suite Online Business Software for the period as prescribed in accordance with the Licence Granted which is set out in Schedule A, the Online Subscription which is set of in Schedule B, the Subscription Fee, the Acceptable Use Policy which is set out in Schedule C, and Website Privacy and Security which is set out in Schedule D, as well as the purpose intended for the usage of the Chili Suite Online Business Software.
2.11 "Subscription Fee" means the fees payable by the Subscriber for the Service, including the fees in respect of the license granted to the Subscriber by Matrix, in accordance with the fee table which is set out on the Website and may be amended by Matrix from time to time.
2.12 "User(s)" means, employees, representatives, consultants, contractors or agents who are authorized to use the Chili Suite Online Business Software and have been supplied with an User Identification and Password in order to access the Service.
2.13 "User Identification Password" means, the unique Username and Password as elected, selected, chosen or nominated by either the Subscriber or the User(s) which shall allow the Subscriber or User(s) access to the Service.
2.14 "Website" means collectively and globally, the site operated by Matrix and accessible through the portion of the Internet known as the World Wide Web under the current Uniform Resource Locator of www.chilisuite.com including, but not limited to the Web pages and/or Documentation thereof.
2.15 In the Agreement:
2.15.1 Any reference to the singular includes the plural and vice versa;
2.15.2 Any reference to a natural persons includes a legal persons and vice versa;
2.15.3 Any reference to a gender includes male and female;
2.15.4 The clause headings in the Agreement have been inserted for convenience only and shall not be taken into account in the interpretation thereof;
2.15.5 Words and expressions defined in any clause, unless the application of any such words or expressions is specifically limited to that clause, bear the meaning assigned to such words or expressions throughout the Agreement;
2.15.6 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
2.15.7 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;
2.15.8 If the due date for performance of any obligation in terms of the Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day;
2.15.9 The rule of construction that the Agreement shall be interpreted against the Party responsible for the drafting of the Agreement, shall not apply; and
2.15.10 The expiration or termination of the Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
3. CHANGES TERMS
Matrix shall have the right, at any time, to change or modify the Agreement applicable to the usage of the Chili Suite Online Business Software, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means of including, but not limited to, posting on the Website, or by electronic or conventional mail, or by any other means indicated herein. Any use of the Chili Suite Online Business Software by the Subscriber and/or User(s) after such notice shall be deemed to constitute acceptance by the Subscriber and/or User(s) of such changes, modifications or additions.
4. DESCRIPTION OF SERVICES
Through its Web property, Matrix provides the Subscriber and/or the User(s) with access to a variety of resources, including but not limited to download areas and product information. The Service, including any updates, enhancements, new features, and/or the addition of any new Web properties, is subject to the Agreement.
In order to use the Service, the Subscriber and/or User(s) must have access to the World Wide Web, directly or through devices that access Web-based Content.
The Subscriber and/or User(s) shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of the Chili Suite Online Business Software and all charges related thereto.
6. PROVISION OF SERVICES
In consideration of the Subscription Fee payable by the Subscriber under the Agreement, Matrix agrees to provide the Subscriber with the Services, subject to the license granted, as prescribed in Schedule C hereunder.
7. SUBSCRIPTION FEE, TERM AND PAYMENT
7.1 The Agreement shall commence on the date that the Subscriber completes the Online Registration Process and shall automatically continue on a month-to-month basis, until such time as either party provides thirty (30) days' written notice to the other party of its intent to terminate the Agreement.
7.2 On the first (1st) day of each month, the Subscription Fee will be automatically charged to the Credit Card of the Subscriber.
7.3 The monthly Subscription Fee is subject to the amount of User(s) nominated, selected or chosen by the Subscriber to have access to the Service.
7.4 The Subscription Fee is subject to the applicable taxes.
7.5 The Subscriber agrees that the credit card details provided by him for use of the Service shall be correct and accurate and that the Subscriber shall not use a credit card, that is not lawfully owned by him or the use of which is not authorized by the lawful owner thereof. The Subscriber further agrees and undertakes to provide correct and valid credit card details.
7.6 The Subscriber authorizes debit of the nominated card account for the payment of the subscription fees. The Subscriber is responsible to ensure that sufficient credit is available on the nominated card account at the time of payment.
7.7 If the card supplier declines payment Matrix is under no obligation to bring this fact to the attention of the Subscriber. The Subscriber should enquire from his credit card supplier whether payment has been deducted from his account.
7.8 The Subscriber may not withhold payment of any amount due to Matrix for any reason.
7.9 In addition to any other remedies stated herein, the right to use the Service of the Subscriber will be suspended. Matrix will only uplift the mentioned suspension upon receipt of all payment due in terms of the Agreement.
7.10 A certificate, signed by an accountant appointed by Matrix, of the amount due by the Subscriber and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate's contents.
7.11 In the event that Matrix incurs any costs (including reasonable attorney's fees) from efforts to collect overdue Subscription Fees from the Subscriber, the Subscriber shall be responsible for payment of such costs.
8. CREDIT INFORMATION
8.1 The Subscriber agrees that the information provided by him to Matrix may be utilised to conduct a credit assessment or affordability assessment in respect of the Subscriber.
8.2 Matrix has the Subscriber's consent to request and to obtain from any third party including, without limitation, any registered credit bureau, or any credit provider, information relevant to the conduct of a credit assessment or affordability assessment in respect of the Subscriber or to the tracing of the Subscriber.
9. SERVICES AVAILABLE ON THIS WEBSITE
Any software and/or Documentation that is made available to download from the Service are the copyrighted work of Matrix and/or its suppliers and are made available for download solely for the use by the Subscriber and User(s) according to the License Granted. The use of the Service is governed by the terms of the License Granted as set out in Schedule A hereunder.
The Subscriber understands that the technical processing and transmission of Subscriber Electronic Communications is fundamentally necessary to the Subscriber and User(s) use of the Service. The Subscriber expressly consents to Matrix's interception and storage of Electronic Communications and/or the Subscriber Data, and the Subscriber acknowledges and understands that Subscriber Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Matrix. The Subscriber acknowledges and understands that changes to the Subscriber Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. The Subscriber further understands that the Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. The Subscriber agrees that Matrix is not responsible for any Electronic Communications and/or Subscriber Data which is lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Matrix.
Matrix will make commercially reasonable efforts to promote successful utilization of the Service, including but not limited to maintenance and support of the underlying hardware and infrastructure, providing the Subscriber with user guides and on-line help, and product support. Matrix will also provide Product Support for Chili Suite. Product Support pertains to support designed to remedy errors in the Chili Suite that causes it to deviate from the specifications as described in the Documentation. Matrix also offers "for a fee" extended support options and Professional Services consultation, which services may include, among other things, data manipulation and transformation services, training services, business process consulting, submission processing support, and general system configuration.
10. LICENSES PROVIDED TO Matrix BY THE SUBSCRIBER
10.1 Subject to the terms and conditions of the Agreement, the Subscriber grants Matrix and its third party service providers the non-exclusive, non-transferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use the following:
10.1.1 Subscriber Data solely to the extent necessary to provide the Service and Documentation to the Subscriber and User(s); and
10.1.2 Any trademarks or logos that the Subscriber provided to Matrix for the purpose of including same in Subscriber user interface of the Service (hereinafter referred to as "the Subscriber Trademarks").
10.1.3 The Subscriber acknowledges and agrees that the Subscriber Data and information regarding the Subscriber and User(s) that is provided to Matrix and/or its third party service providers in connection with the Agreement may be:
10.1.3.1 processed by Matrix and/or its third party service providers to the extent necessary to provide the Service; and
10.1.3.2 transferred outside of the country or any other jurisdiction where the Subscriber and User(s) are located
10.2 In addition, the Subscriber acknowledges and agrees that it is the Subscriber's obligation to inform User(s) and/or customers of the Subscriber, of the processing of Subscriber Data and information regarding the Subscriber and User(s) pursuant to the Agreement and to ensure that such User(s) and customers have given any necessary consent to such processing as required by all applicable data protection legislation. The Subscriber is solely responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all of the Subscriber Data and information regarding the Subscriber and User(s).
10.3 The Subscriber agrees that the license to the Subscriber Data shall survive termination of the Agreement solely for the purpose of storing backup of Subscriber Data in accordance with the terms of the Agreement.
10.4 By providing the Subscriber with the Services, Matrix does not acquire any right, title and/or interest in the content material (including but not limited to text, software, scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that the Subscriber make available to the User(s) by means of the Services (hereinafter referred to as "the Content").
10.5 Except as expressly set forth in the Agreement as being the responsibility of Matrix, the Subscriber are solely responsible for all Content.
11. CONFIDENTIAL INFORMATION
Each party may have access to information that is confidential to the other party (hereinafter referred to as "the Confidential Information"). For purposes of the Agreement, the Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. The Confidential Information of the Subscriber shall include, but are not be limited to, the Subscriber Data.
The Confidential Information of both parties shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; and (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information, as established by written records.
The parties agree to use commercial reasonable efforts not to make each other's Confidential Information available in any form to any third party. Notwithstanding the aforesaid, the Subscriber acknowledges and agrees that Matrix may disclose the Confidential Information of the Subscriber to Third Parties solely to the extent necessary to provide products or services under the Agreement.
This section will not be construed to prohibit disclosure of the Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose the Confidential Information (hereinafter referred to as "the Responding Party") shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.
Notwithstanding anything to the contrary in the Agreement, the Content is not included in the Confidential Information as defined above. To the extent Matrix has any access to the Content in the course of providing the Service, Matrix's entire obligation to keep the Content confidential is stated in this section below. Matrix shall not, intentionally (i) access the Subscriber Content or (ii) disclose the Subscriber Content to any third party, except to the extent: (a) The Subscriber makes its Content publicly available, (b) as necessary for Matrix to provide, or obtain third-party supplier support for, the Services or to provide information requested by The Subscriber, or (c) as specifically authorized by the Subscriber in writing.
Matrix's obligation to protect the Content from unauthorized use, access or disclosure is: (i) to provide the Website Privacy and Security as set out in Schedule D hereunder and (ii) maintain and enforce the then-current standard Matrix security policies and standards applicable to the Services as practiced at the service locations from which Matrix is providing the Services to the Subscriber.
The obligations in this section shall not apply to the recipient of the Confidential Information and/or Matrix with respect to the Content to the extent disclosure of the Confidential Information or Content is required to comply with laws or respond to requests by a regulatory or judicial body and/or as otherwise required for legal process. In the event that any such disclosure is required, the recipient, and/or Matrix with respect to the Content, reserves the right to charge the other party on a time-and-materials basis for recipient's and/or Matrix's reasonable efforts related to its compliance and response, including, if applicable, reasonable attorney's fees.
12. MODIFICATION, DISCONTINUATION AND MAINTENANCE
12.1 Matrix reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Subscriber on which the Subscriber materially relies. Notwithstanding the aforesaid, except for routinely scheduled down time, or as otherwise provided in the Agreement, Matrix shall use commercial reasonable efforts to notify the Subscriber prior to any such modification; further, Matrix shall consider the Subscriber validation needs and requirements in connection with any modification of the Service. The Subscriber agrees that Matrix will not be liable, monetary or otherwise, to the Subscriber or any third party for any modification or discontinuance of the Service as described.
12.2 In order to perform maintenance, including infrastructure and application upgrades, there may be routinely scheduled down time. The Subscriber shall give Matrix at least forty-eight (48) hours' notice in the event that such routinely schedule maintenance conflicts with its operations at a critical time. The Subscriber acknowledges that these periodic releases can take several hours to complete (for example, eight (8) hours). The time necessary to provide such periodic releases shall not be counted in any System Availability calculations. In the event that Matrix, in its sole discretion, determines that any unscheduled maintenance is necessary, Matrix will use commercial reasonable efforts to notify the Subscriber as soon as it becomes aware of such need.
13. OWNERSHIP OF INFORMATION AND MATERIALS
The information and any materials (including the Chili Suite Online Business Software) available on or from the website are the copyrighted works of Matrix, and any unauthorized use of that information or materials may violate copyright, trademark and other laws.
Any rights not expressly granted herein are reserved.
14.1 Matrix warrants to the Subscriber that the Service will comply with the material functionality described in the Documentation and that such functionality will be maintained in all material respects in subsequent upgrades to the Service. The Subscriber's sole and exclusive remedy for Matrix's breach of this warranty shall be that Matrix shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in the Documentation within a reasonable period. However, Matrix shall have no obligation with respect to this warranty claim unless notified of such claim within thirty (30) days of the first material functionality problem. Further, Matrix shall have no obligation with respect to this warranty claim, and the Subscriber may not terminate the Agreement, where any alleged non-conformity is due to User error as reasonably determined by the parties after investigation and analysis by Matrix. Matrix does not warrant that the Service will be of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.
14.2 Matrix warrants that it will, at a minimum, utilize and maintain the backup procedures listed in Schedule D hereunder. In the event of a breach of this provision, Matrix will use commercially reasonable efforts to correct the Subscriber Data or restore the Subscriber Data within three (3) business days (or as otherwise agreed in writing between the parties depending upon the back-up options selected by the Subscriber). Provided Matrix complies with the procedures set forth in Schedule D, it shall be deemed to have satisfied its obligation with respect to this warranty.
14.3 Matrix warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to the Subscriber with respect to the Service and that neither the performance by the Subscriber in its utilization of the Service, nor the license of and authorized use by the Subscriber of the Service as described herein, will in any way constitute an infringement or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.
15. DISCLAIMER OF WARRANTY
EXCEPT AS OTHERWISE STATED ABOVE, Matrix DOES NOT ENSURE THAT THE USE OF THE SERVICE BY THE SUBSCRIBER OR THE USER(S) WILL BE SECURED, TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE SERVICE WILL MEET THE SUBSCRIBER REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY Matrix OR THE OPERATION OF THE SERVICE WILL BE SECURE OR THAT Matrix AND ITS THIRD PARTIES WILL BE ABLE TO PREVENT OTHER THIRD PARTIES FROM ACCESSING THE SUBSCRIBER DATA OR THE CONFIDENTIAL INFORMATION OF THE SUBSCRIBER OR USER(S), OR ANY ERRORS WILL BE CORRECTED OR THAT ANY STORED SUBSCRIBER DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY Matrix. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED ABOVE, THE SERVICE IS PROVIDED TO THE SUBSCRIBER AND USER(S) ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. THE SUBSCRIBER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE PURPOSE OF THE SUBSCRIBER OR USER(S).
16. LIMITATIONS OF LIABILITY
16.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THE AGREEMENT (INCLUDING, BUT NOT LIMITED TO THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE THEE SERVICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Matrix OR ANY OF ITS THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF THE AGREEMENT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY THE SUBSCRIBER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP.
16.3 EXCEPT FOR A FAILURE OF Matrix TO COMPLY WITH ITS OBLIGATIONS WITH RESPECT TO BACKUP SERVICES, AND SUBJECT TO SCHEDULE E HEREUNDER, Matrix SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OR CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE.
16.4 Matrix WILL NOT BE HELD LIABLE FOR ANY LOSS WHERE THE SUBSCRIBER AS A REPRESENTATIVE OF AN ENTIITY AGREES TO THE AGEEMENT, HOWEVER THE SAID SUBSCRIBER DID NOT HOLD THE NECESSARY AUTHORITY.
16.5 Matrix WILL NOT BE HELD LIABLE WHERE THE SUBSCRIBER IS A MINOR.
16.6 THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS ABOVE, SHALL NOT APPLY WITH RESPECT TO THE FOLLOWING:
16.6.1 DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY;
16.6.2 BREACHES BY THE SUBSCRIBER OF THE LICENSE TERMS APPLICABLE TO Matrix PROVIDED SOFTWARE AND THIRD PARTY PRODUCTS AS SET FORTH HEREIN;
16.6.3 THE UNAUTHORIZED USE OF THE SUBSCRIBER OR USER(S) OF Matrix'S OR ITS THIRD PARTY'S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS;
16.6.4 DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR
16.6.5 CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION PURSUANT TO SECTION 19 HEREUNDER (WHICH ARE SUBJECT TO THE LIMITS, IF ANY CONTAINED THEREIN). DAMAGES AS LIMITED BY THIS SECTION, ARE THE SOLE AND EXCLUSIVE REMEDY OF THE SUBSCRIBER AND USER(S) IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
17. LINKS TO THIRD PARTY SITES
THE LINKS IN THIS AREA WILL LET YOU LEAVE THE WEBSITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF Matrix AND Matrix IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. Matrix IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. Matrix IS PROVIDING THESE LINKS TO THE SUBSCRIBER AND USER(S) ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY Matrix OF THE SITE.
Matrix shall have the right, but not the obligation, to monitor the content of the Website, to determine compliance with the Agreement and any operating rules established by Matrix and to satisfy any law, regulation or authorized government request. Matrix shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on the Website. Without limiting the aforesaid, Matrix shall have the right to remove any material that Matrix, in its sole discretion, finds to be in violation of the provisions of the Agreement or otherwise objectionable.
19.1 The Subscriber will indemnify, defend and hold harmless Matrix, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorney fees that the Subscriber incurs from any unaffiliated third-party claim arising from the Content or the Subscriber or User(s)'s use of the Services, including intellectual property rights.
19.2 Subject to any applicable legislation and save where otherwise stated in the Agreement, Matrix (including its directors, employees, affiliates, third party service providers and agents) shall not be liable for any damage, loss or liability of any kind incurred by whomever and the Subscriber agrees to indemnify Matrix against any and all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, but are not limited to, pure economic loss, loss of income, loss of profits, loss of data, loss of anticipated savings, loss of business, loss or depletion of goodwill, interruption of business and loss similar to all the preceding types of loss), damages, claims, demands, proceedings and judgments which Subscriber incurs or suffers in any way arising from the following:
19.2.1 access to the Chili Suite or the Website;
19.2.2 inability to access the Website;
19.2.3 Services or software available from the Website (including the Chili Suite);
19.2.4 content available on the Website;
19.2.5 downloads and use of content available on the Website;
19.2.6 any failure to perform the obligations of Matrix in the Agreement due to causes beyond Matrix's reasonable control including any interruption to or failure of any website, Subscriber computer, associated supporting system not provided by Matrix and used by the Subscriber, telecommunications services, third-party and/or electricity supply service not provided by Matrix, including the Internet;
19.2.7 Subscriber breach of any of the terms of the Agreement;
19.2.8 use of the Chili Suite or the Website other than in accordance with the Agreement; or
19.2.9 any other reason not directly related to Matrix's gross negligence.
20. SUSPENSION AND TERMINATION OF THE AGREEMENT
20.1 Matrix reserves the right to suspend the Subscriber's access and/or use of the Service for any account for which any payment is due but remains unpaid after thirty (30) day's written notice of such delinquency. The Subscriber agree that Matrix shall not be liable to the Subscriber, or to any third party, for any suspension of the Service resulting from Subscriber non-payment of the fees as described in this Section.
20.2 The Subscriber agrees that Matrix may, with reasonably contemporaneous telephonic or electronic mail notice to the Subscriber, suspend the Subscriber's access to the Service if Matrix reasonably concludes that the use of the Service by the Subscriber or User(s) are causing immediate and ongoing harm to Matrix or others. Matrix will use commercially reasonable efforts to resolve the issues causing the suspension of Service. The Subscriber agrees that Matrix will not be liable to the Subscriber or to any third party for any suspension of the Service under such circumstances as described in this Section.
20.3 The following shall apply in the event of breach of the Agreement:
20.3.1 Either party may terminate the Agreement upon thirty (30) days' written notice to the other party in the event of a breach of any material obligation under the Agreement, provided that the alleged breach is not rectified during the thirty (30) day notice period. Upon termination or expiration of the Agreement, the Subscriber shall have no rights to continue use of the Service; and
20.3.2 The Subscriber may terminate the Agreement, to be effective at the end of the then current term, by providing Matrix with at least thirty (30) days' prior written notice.
20.4 The Subscriber acknowledges and agrees that following termination of the Agreement, the Subscriber and User(s) shall return all Documentation (as applicable) to Matrix and Matrix may immediately deactivate the account of the Subscriber and User(s). Furthermore, unless otherwise agreed-upon by the Parties in writing, Matrix shall remove or overwrite all applicable content from Matrix's systems following the effective date of termination or cancellation, in accordance with Matrix's standard procedures. Prior to any such deletion or destruction, however, upon request and payment of the agreed fee, Matrix shall transfer all the Subscriber Data to other media for delivery to the Subscriber. The Subscriber agrees that Matrix shall not be liable to the Subscriber or to any third party for any termination of access of the Subscriber or User(s) to the Service or deletion of Subscriber Data, provided that Matrix complies with the terms of this Section. Notwithstanding the aforesaid, nothing shall preclude Matrix from maintaining one copy of the Subscriber Data as required by law.
20.5 In the event that the agreement is terminated, Sections 6, 8, 15, 16, 20, 21 and 23 shall survive any such termination
21.1 All communication to Matrix must be transmitted by communicated to Matrix utilising the "Contact Us" section on the Website;
21.2 Matrix will communicate with the Subscriber using the email address registered during the Online Registration process;
21.3 Except where otherwise stated, any notice required or permitted under the Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, (c) sent by overnight courier, (d) sent by facsimile (with a hard copy mailed on the same date), or (e) by email whose receipt is acknowledged by an officer of the receiving party; and
21.4 Notices shall be considered to have been given at the time of actual delivery in person, five (5) business days after posting it by mail, one (1) business day if by overnight courier service, or upon receipt of machine confirmation of successful transmission by facsimile or email as described herein.
The Agreement and any operating rules for the Website established by Matrix constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The Agreement shall be construed in accordance with the laws of the Republic of South Africa, without regard to its conflict of law rules. No waiver by either party of any breach or default herein shall be deemed to be a waiver of any preceding or subsequent breach or default unless agreed to in writing. The section headings used herein are for convenience only and shall not be given any legal import.
23. PROPRIETARY RIGHTS
23.1 The Service and any necessary software used in connection with the Service may contain proprietary and confidential information that is protected by applicable intellectual property and other laws;
23.2 The content or information presented to the Subscriber and User(s) through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws;
23.3 Except where expressly provided otherwise by Matrix, nothing in the Service, the Documentation, or the Agreement shall be construed to confer any license to any of Matrix's (or its third party manufacturer's, author's, developer's, Matrix's, and third party service provider's, intellectual property rights, whether by estoppel, implication, or otherwise;
23.4 Without limiting the generality of the aforesaid, any names or trademarks of the Chili Suite and other Matrix service marks, logos and product service names are marks of Matrix (hereinafter referred to as "the Matrix Marks"); and
23.5 The Subscriber must refrain from to display or use the Matrix Marks, in any manner without the owner's express prior written permission. Matrix reserves the right to sub-contract any or all services provided herein to third parties.
The Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa, exclusive of its choice of law principles. The Courts of the Republic of South Africa with the necessary jurisdiction shall have exclusive jurisdiction and venue over any dispute arising out of or relating to the Agreement, and each party hereby consents to the jurisdiction and venue of such courts.
25. FORCE MAJEURE
Neither party will be liable to the other for any failure or delay in the performance of such party's non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact.
26. GENERAL PROVISIONS
26.1 If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
26.2 No joint venture, partnership, employment, or agency relationship exists between Matrix and the Subscriber or User(s) as a result of the Agreement or use of the Service.
26.3 Matrix reserves the right to assign its right to receive and collect payments herein to any other third party.
26.4 Any rights not expressly granted herein are reserved.
26.5 In respect of queries regarding this Agreement, please contact us
1.1 Subject to the Agreement, Matrix grants the Subscriber the non-transferable, non-exclusive worldwide right to permit User(s) to:
1.1.1 use the Service;
1.1.2 display and print the Subscriber Data, and
1.1.3 use the documentation solely in connection with the Service prescribed herein, solely for the Subscriber's own internal business operations, provided such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use.
2.1 The Subscriber acknowledges and agree that the license granted, is not a concurrent user license and that the rights granted to the Subscriber in the Agreement are subject to all of the following:
2.1.1 each User account created, during the registration process on the Website will attract the applicable Subscription Fee;
2.1.2 a User license cannot be shared or used by more than one individual User, but User(s) who are no longer permitted to access the Service can be removed, in which case the Subscription Fee shall be reduced accordingly;
2.1.3 The Subscriber shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service or the Documentation available to any party other than an authorized User;
2.1.4 The Subscriber shall not modify, make derivative work of, disassemble, reverse compile, or reverse engineer any part of the Service, which includes but are not limited to, the Chili Suite, the Website and the Documentation that are provided as a part thereof, or access the Chili Suite, the Website, the Service or the documentation in order to build a similar or competitive product or service;
2.1.5 The Subscriber shall not create Internet "links" to the Service or "frame" or "mirror" any part of the Service, including any content contained in the Service, on any other server or device;
2.1.6 Except as expressly stated herein, no part of the Service, the Chili Suite, the Website or the Documentation may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means except for the intended purpose the Service, the Chili Suite, the Website or the Documentation are to be used, as defined herein;
2.1.7 The Subscriber agrees to take any and/or every reasonable steps to prevent unauthorized Users or Third Parties from accessing the Service;
2.1.8 The Subscriber acknowledges and agrees that Matrix shall own all right, title and interest in and to all intellectual property rights in the Chili Suite, the Website, the Service and the Documentation as well as any suggestions, enhancement requests, feedback, or recommendations provided by the Subscriber or its Users relating to the Chili Suite, the Website, the Service or the Documentation, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof;
2.1.9 Unauthorized usage, resale or commercial exploitation of any part of the Chili Suite, the Website, the Service or the Documentation in any way is expressly prohibited;
2.1.10 The Subscriber do not acquire any rights in the Chili Suite, the Website, the Service or the documentation, expressed or implied, other than those expressly granted in the Terms and all rights not expressly granted to the Subscriber are reserved by Matrix; and
2.1.11 The Agreement does not construe a sale or a trade and does not convey any rights of ownership in or related to the Website, the Service, the Chili Suite, third-party components licensed to Matrix, or the Documentation to the Subscriber.
3. RESPONSIBILITIES OF SUBSCRIBER
3.1 The Subscriber agree to comply with all applicable South African and applicable international laws, treaties, regulations and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. The Subscriber will ensure that any use of the Service by Subscriber Users is in accordance with the terms of this Agreement. The Subscriber agree to notify Matrix immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of the Subscriber Data.
3.2 In addition to its responsibilities in the Agreement, the Subscriber is responsible for all the responsibilities entered into pursuant hereto and all other responsibilities not designated as responsibilities of the Subscriber.
3.3 The Subscriber is solely responsible for obtaining all licenses and permissions necessary related to the Content, including without limitation licenses for any third-party software included in the Content.
3.4 The Subscriber shall not resell the Services directly or indirectly to third parties.
The Subscriber may not assign this Agreement without the prior written approval of Matrix. Any purported assignment in violation of this section shall be void.
1. ACCESS AND SERVICES
The Subscriber shall be required to register on the Website before Matrix supplies any Services.
Access to the various services available by the Chilli Suite Online Business Software depends on the level of access selected by the Subscriber. The account of the Subscriber and User(s) may change or be discontinued at any time, alternatively as contemplated in the Agreement. Matrix also reserves the right to delete all program and data files associated with the account of the Subscriber and/or User(s) as well as information the Subscriber and/or User(s) have on the Chilli Suite Online Business Software.
The Subscriber may add any number of Users. The Subscriber will provide and assign unique User Identification and Passwords to each authorized User for each license purchased. The Subscriber will be responsible for the confidentiality and use of Subscriber (including its employees') passwords and user names. The Subscriber will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, the Subscriber Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Subscriber account. Matrix will act as though any Electronic Communications it receives including User Identification and Password and/or account numbers will have been sent by the Subscriber. The Subscriber agrees to notify Matrix immediately of any loss, theft, or unauthorized use of any of the User(s) Identification and Passwords, and/or account number.
2. FEES AND PAYMENT
The Subscriber will be charged a monthly Subscription Fee for the usage of the Chilli Suite Online Business Software. Matrix will provide a detailed invoice only upon the written request of the Subscriber. The Subscriber should review the complete and current Subscription Fees before accepting the Agreement. In the event that the Agreement is terminated, the Subscriber will remain liable for all charges accrued up to the termination thereof, including full monthly changes for the month for which the Subscriber discontinued the usage of the Chilli Suite Online Business Software. Matrix reserves the right to amend the Subscription Fees from time to time, with notice to the Subscriber.
3. SYSTEM RULES
3.1 The Subscriber and User(s) agree to be bound by certain terms that are important for the proper use of the Chilli Suite Online Business Software. Failure to comply may result in the termination of the Subscriber's account.
3.2 The Subscriber and User(s) must refrain from the following:
3.2.1 Disclosing the User Identification and Password to an unauthorised Third Party.
3.2.2 Attempt to use the same User Identification and Password of an account at the same time on any provided account(s).
3.2.3 Using the Chilli Suite Online Business Software to commit a crime, or to plan, encourage or help any Third Party to commit a crime, including crimes relating to computers.
3.3 The Subscriber undertakes to:
3.3.1 Explain the Agreement to the User(s), alternatively urge the User(s) to peruse the Agreement;
3.3.2 Ensure compliance with the Agreement by the User(s) of the Service;
3.3.3 Accepts responsibility for any default of the Agreement conducted by the User(s) or Third Party; and
3.3.4 Accepts responsibility for any and all activities that occur under the User(s) account.
3.4 The Subscriber agrees to:
3.4.1 Provide true, accurate, current and complete information as required by the sign up process which is available on the Website; and
3.4.2 Maintain and update, if necessary, the information which the Subscriber provided during the sign up process in order to keep the said information true, accurate, current, and complete, as contemplated in paragraph 3.4.1.
The Agreement shall commence on the date of Subscription and shall remain in effect until termination with thirty (30) days' written notice to the other party, unless explicitly states otherwise herein.
5. IP ADDRESSES
Matrix maintains control as well as any ownership of any and all IP numbers and addresses that may be assigned to the Subscriber or User(s) and reserves in its sole discretion the right to change or remove any or all IP numbers and addresses.
1.1 This ACCEPTABLE USE POLICY ("AUP") describes acceptable use of and access to the Website and its facilities by the Subscriber and User(s). Specific services and features offered on the Website may be subject to additional terms where indicated.
1.2 The Website is made available by Matrix. By accessing or using the Website, the Subscriber and User(s) agree to the following terms:
1.2.1 If you violate this AUP or authorize or help others to do so, Matrix may immediately suspend or terminate access of the Subscriber and User(s) to the Website or any of its facilities; and
1.2.2 Capitalized terms have the meanings given in the Agreement, unless otherwise indicated.
2. PROHIBITED USE AND USER CONTENT
2.1 The Subscriber and User(s) may not upload User Content, use or access the Website in a manner that Matrix believes:
2.1.1 Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a "Law");
2.1.2 Is abusive, deceptive, pornographic, obscene, defamatory, offensive, or otherwise inappropriate;
2.1.3 Violates the rights of others, including, as examples, infringing or misappropriating any intellectual property or proprietary right of another;
2.1.4 Advocates or induces illegal activity;
2.1.5 Stalks, harasses, or harms anyone, including minors;
2.1.6 Impersonates any person or entity or otherwise misrepresents User's affiliation with a person or entity;
2.1.7 Modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software or service provided through the Website (except to the extent that User is allowed to do so by specific terms on the Website);
2.1.8 Except as allowed by local Law, reverse engineers, disassembles, or decompiles any Matrix software or service made available through the Website;
2.1.9 Accesses or uses the Website in a way intended to avoid incurring fees or exceeding usage limits or quotas as agreed in applicable service or license terms;
2.1.10 Interferes with or disrupts the operation of the Website or any of its facilities;
2.1.11 Uses for illegitimate purposes any automated means of accessing the Website, using or registering for its services or facilities;
2.1.12 Attempts to gain unauthorized access to any area of the Website, whether through hacking, password mining, or any other means;
2.1.13 Violates the security or integrity of the Website, including as examples:
a. Accessing or using the Website without permission, including attempts to probe, scan, or test its vulnerability or to breach any security or authentication measures used by it;
b. Monitoring data or traffic on the Website without permission;
c. Forging packet or email headers, or any part of a message describing its origin or route;
d. Uploading User Content that contains malware (for example, viruses, worms, etc.) or any other content that may compromise the Website; or
e. Hacking, destabilizing, or altering Website services or facilities, or altering another website to falsely affiliate with the Website;
2.1.14 Distributes, publishes, sends, or facilitates unsolicited e-mailings, promotions, advertising, or marketing content of any type, including commercial advertising and informational announcements;
2.1.15 Alters or obscures mail headers or assume a sender's identity without the sender's explicit permission; or
2.1.16 Collects replies to messages if those messages violate this AUP.
2.2 The Subscriber and User(s) must also take reasonable steps to ensure that the Subscriber and User(s) do not procure or facilitate the uploading of any Third Party Content that Matrix believes is likely to infringe any of the prohibitions listed above.
2.3 Matrix has the sole discretion to determine whether User Content or User's use of the Website is prohibited.
2.4 All User Content is the sole responsibility of the Subscriber and User(s).
3. MONITORING AND ENFORCEMENT
3.1 While not obligated to perform investigations, Matrix may:
3.1.1 Investigate violations of this AUP or misuse of the Website;
3.1.2 Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; and
3.1.3 Remove, disable access to, or modify any User Content, Third Party Content or resource that Matrix believes violates this AUP, infringes the prohibitions listed above or violates any other agreement Matrix has with User for use of the Website.
3.2 Matrix may report any activity that it suspects violates any Law to appropriate enforcement officials, regulators, or other appropriate third parties. Matrix reporting may include disclosing User information where reasonably necessary. Matrix also may cooperate with relevant enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.
4. REPORT VIOLATIONS
Please report abuse of this AUP.
5. MODIFICATIONS TO THE AUP
Matrix may modify this AUP from time to time. Matrix will post notice of such changes on the Website, by email, or otherwise by reasonable and effective means or as provided in the User Agreement. If the Subscriber and User(s) object to any such changes, the Subscriber and User(s) may cease using the Website. Continued use of the Website following notice of any such changes indicates your acceptance of such changes and agreement to be bound by the revised terms and conditions.
6. CONTACT US
If the Subscriber has any questions or suggestions regarding this AUP, please contact us.
The security of the data of the Subscriber and User(s) are of utmost importance to Matrix. Matrix's commitment to security will ensure the data is safe and secure.
1. ACCESS TO THE DATA OF THE SUBSCRIBER OR USER(S)
1.1 The Subscriber and User(s)'s subscription is protected by the User Identification and Password. No one else has access to subscription information of the Subscriber and User(s) unless the Subscriber and User(s) have added them. In which case, they too will have access to the subscription of the Subscriber and User(s), but using their own User Identification and Password.
1.2 If the Subscriber and User(s) are logged in and don't use the Chili Suite for an extended period of time, the Subscriber and User(s) will automatically be logged out.
2. MANAGED HOSTING
2.1 The Accounting data of the Subscriber and User(s) is stored in a managed hosted environment at a secure physical location with 24/7 armed security personnel and offsite monitoring via CCTV. All physical equipment is also housed in a security controlled and monitored centre. Access to the data centre is restricted to authorised personnel only.
2.2 The Chili Suite operates behind an industry-standard firewall. This firewall ensures that only intended traffic reaches the Service. The firewall generates logs and alerts which are reviewed on an ongoing basis to determine intrusion, service attacks and injection attempts.
2.3 All systems are reviewed on an ongoing basis to identify possible weaknesses or new vulnerabilities. System event and system logs are reviewed on an ongoing basis to identify possible intrusion attempts.
2.4 Industry-standard monitoring technologies are in place to continuously check that the Chili Suite server is available. This ensures that the physical environment is monitored and any system hardware or software errors are resolved within the shortest possible time thereby minimizing downtime.
3. DATA BACKUPS
The data of the Subscriber and User(s) is backed up daily. Backups are stored for up to two weeks. Data is stored in two alternative locations, accommodating multiple points of failure.
4. SSL SECURITY
The information the Subscriber and User(s) send to and retrieve from the Chili Suite is encrypted. The Chili Suite utilises a security certificate obtained from a reputable certificate provider. This certificate is fully authenticated and verified, encrypting your data with up to 256-bit encryption (browser dependent) and therefore ensuring that the data of the Subscriber and User(s) is safe.