STANDARD TERMS AND CONDITIONS FOR LULA
1. In this document:
1.1. “Agreement” means the agreement contemplated in clause 2;
1.2. “Charges” means the charges for the Service, as set out in the Invoice;
1.3. “Converge means Converge Solutions (Pty) Ltd;
1.4. “Invoice” means Converge’s invoice that it submitted to you for the provision of the Services;
1.5. “Parties” means you and Converge collectively, and “Party” means either one of them, as the context requires;
1.6. “Platform” means Lula, a software as a service offering marketed by Converge;
1.7 “Retailer Data” means such data that is made available to you from a specific retailer, whether through the Retailer Portal or any other means, and which you authorise Converge to use, in order deliver the Services;
1.8 “Retailer Portal” means a web-based environment offered by certain retailers, where sales and other data is made available to suppliers, who are authorised by retailers to access such Retailer Data;
1.9. “Service” means the service that Converge as set out in clause 3;
1.10. “Terms” means the terms and conditions in this document;
1.11. “you” and “your” means the client as recorded in the Invoice;
2. When you first access the Platform, an Agreement will arise between you and Converge, consisting of the Invoice read together with these Terms. By accessing the Platform, you confirm that you accept the terms of the Invoice and these Terms. The Agreement will come into force on the date on which you first access the Platform and will continue in force for the period recorded in the Invoice. If you wish to extend the Agreement, Converge will send you a further Invoice and when you accept that Invoice by accessing the Platform after the date of that Invoice, the Agreement will be extended to the date recorded in that Invoice.
3. Against payment of the Charges set out in the Invoice, Converge will provide you with access to the Platform. Converge will give you the level of access for the time period as set out in the Invoice. Converge’s obligations are limited to:
3.1. giving you access to the reporting layer of the Platform;
3.2. ensuring the Retailer Data that is made available via the Retailer Portal, is processed and made available through the Platform; and
3.3. giving you access to the page where you may maintain Platform specific parameters to localise the Platform within the confines of those parameters.
4. You must:
4.1. maintain your own Platform parameters and arrive at your own conclusions pursuant thereto. Converge is not liable for any outcome from the use of the Platform and/or from your failure to arrive at appropriate conclusions in relation thereto.
4.2 provide Converge with the required credentials to obtain the Retailer Data which acts as input to the Platform;
4.3 provide Converge with the details of your licenced Microsoft Power BI users to which the reports will be published, which may include provisioning a specific Microsoft Power BI account to Converge for the purposes of publishing the reports to your authorised users;
4.4 inform Converge if you do not have licenced Microsoft Power BI users, in which case Converge will make such licences available to your users, at a monthly fee which must be specified on the Invoice;
4.5 ensure that only authorised personnel have access to the reports published by Converge and instruct Converge whenever the users who require access to the reports, change, in the event that Converge is required to manage the publication of the reports to the authorised users;
5. For receiving the Services, you must pay Converge the Charges set out in the Invoice, for the period specified in the invoice, into Converge’s bank account as specified in the Invoice.
6. You must make payment monthly for the month, prior to or on the 20th (twentieth) day of each month. If you do not pay the Charges on due date, Converge may terminate your access to the Platform without notice.
7. Converge provides the Services without any warranties. Any warranties implied by law are excluded to the extent permitted by law. Converge does not provide any warranty in respect of third-party software and Converge will not be liable for any malfunction of such software. You confirm that you do not enter into the Agreement in reliance upon any warranty made by Converge prior to conclusion of the Agreement.
8. Subject to clause 9, Converge will keep your confidential information confidential and will restrict it to its employees or professional advisors who need to know it to comply with this agreement the Agreement. Your Information will not be confidential if: (i) Converge lawfully obtained it from a third party who is not under obligation to keep it confidential; or (ii) it was already in the public domain upon conclusion of this Agreement; (iii) if it becomes part of the public domain without breach by Converge of this clause 8 or (iv) you approve its release.
9. Converge may disclose your confidential information to satisfy an order of a court or to comply with the provisions of any law or regulation in force from time to time.
10. Converge acknowledges that your confidential information and your data are and will remain your property.
11. If Converge is prevented from complying with its obligations under this Agreement due to an event over which it does not have control, it will not be in breach of this Agreement. If such event continues for 7 (seven) consecutive days or more, then either Party may terminate the Agreement by written notice to the other party, without liability.
12. Neither Party will be liable to the other Party for (a) indirect, incidental, consequential or special damages or losses and/or (b) loss of income or profits, lost opportunities, loss of anticipated savings, loss of or damage to data or software, loss of use, downtime or costs of substitute products, howsoever arising, whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action.
13. Subject to clause 12, the aggregate liability of either Party to the other Party in any circumstances, whether in contract, delict, statute or otherwise, and howsoever caused, for loss or damage arising from or in connection with this Agreement (“Loss”), whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action, and even if it was aware of the potential that the other Party may suffer the Loss, will be limited to the total value of the Invoice(s).
14. This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof. No amendment, alteration, variation, novation or consensual cancellation of this Agreement (including this clause 14) or addition thereto will be of force or effect unless reduced to writing and signed by the Parties.
15. The rights and obligations of the Parties relating to the subject matter of this Agreement are provided for exclusively in this Agreement. General terms and conditions of the Parties are excluded even if they are contained in or reference is made to them in an order, order confirmation or other documents or in an oral agreement.
16. No waiver of, or failure, delay, relaxation or indulgence on the part of either Party in exercising any right in terms of this Agreement will operate as a waiver of such right, unless it is expressed in writing and signed by the other Party, and it will be effective only in the specific instance and for the purpose given. No single or partial exercise of any such right will preclude any other or further exercises of that right.
17. Any provision of this Agreement that contemplates performance or observance subsequent to termination thereof or which must necessarily continue to have effect after such expiration or termination, will survive such termination or expiration, even if the provision itself does not expressly provide for this.
18. This Agreement supersedes all other agreements relating to the subject matter of this Agreement.
19. Neither Party may rely on any representation made prior to the conclusion of this Agreement that is not recorded in this Agreement, even if such representation induced the Party to conclude the Agreement.
20. Product is owned by Converge Investments (Pty) Ltd and Converge is an authorised reseller of Product. Converge Investments (Pty) Ltd may assign the intellectual capital of the Product to any of its subsidiaries at its own discretion, insofar as this does not have any negative impact on this Agreement or the Services contemplated herein.