In this Agreement:
Agreement means these General Terms and the Order Form (and in the event of any inconsistency between the General Terms and the Order Form, the terms of the Order Form will apply);
Associate means (in relation to each Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company (as the terms “subsidiary” and “holding company” are defined by the Companies Act No. 71 of 2008 ;
Business Day means a day other than a Saturday, Sunday or public holiday in South Africa;
Data Protection Legislation means the Protection of Personal Information Act 4 of 2013 of South Africa (and the terms “personal information”, “Responsible Party”, and “Operator” shall have the meanings given to them pursuant to such Data Protection Legislation) ;
Equipment means the equipment to be provided by Lumi to Customer as set out on the Order Form;
Event means an event or series of events designed, scripted, developed and/or deployed by Customer to Respondents or by Lumi to Customer using the Lumi Dashboard and/or any Lumi Apps, Equipment or Lumi Software;
Fees means the amounts set out in the Order Form;
Intellectual Property Rights means all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright (including foreign language translation rights), design rights, database rights, rights in any domain names, registered designs, patents, trademarks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof). The above shall include, in relation to registrable rights, any applications made or rights to make applications in respect of any such rights;
Lumi Apps means Lumi Join, Lumi Show, Lumi Say or any other mobile application made available by Lumi (whether as a standalone mobile application or as incorporated within an integrated mobile application) as amended and/or updated by Lumi from time to time in its discretion;
Lumi Dashboard means the interactive web-based portal made available by Lumi to Customer for the purposes of scripting, designing and deploying an Event to Respondents as well as generating real-time reports of data collected through the Events; Lumi Software means any software used or supplied by Lumi in connection with the performance of this Agreement (including, without limitation, any software embedded in the Lumi Dashboard, the Lumi Apps and/or the Equipment) and any material arising from the use or manipulation of such software;
Online Stores means the App Store, the Android Market and any other websites or portals where versions of the Lumi Apps App are made available for download at Lumi’s discretion from time to time;
Order Form means the order form to which these General Terms are attached;
Party means either Lumi or Customer as the context requires;
Raw Data means any information or data relating to Respondents supplied by Customer, but excluding Respondent Data;
Respondent means any individual to whom all or any part of the Lumi Dashboard, the Lumi Apps, the Equipment and the Lumi Software is made available and/or who provides a response at an Event in connection with this Agreement;
Respondent Data means information or personal information (as that term is defined in the Data Protection Legislation provided by a Respondent in the course of responding at an Event;
Services means the services to be provided by Lumi to Customer as set out on the Order Form;
Term means has the meaning given to it in the Order Form.
1.1 This Agreement has been drafted to cover the supply of both Services and Equipment to Customer. For the avoidance of doubt:
(a) where Customer requires Services only from Lumi, the provisions of this Agreement relating to Equipment shall not apply to the extent that such provisions relate to Equipment (but shall apply to the extent that such provisions relate to Services; and
(b) where Customer requires Equipment only from Lumi, the provisions of this Agreement relating to Services shall not apply to the extent that such provisions relate to Services (but shall apply to the extent that such provisions relate to Equipment.
This Clause 2 shall apply only if Services are to be provided by Lumi to Customer pursuant to this Agreement.
2.1 Subject to execution of this Agreement and payment of the Fees, Lumi shall grant to Customer a personal, non-exclusive, non-transferable right to access and utilise the Lumi Dashboard for the duration of the Term as is required within the express scope of the Services.
2.2 Lumi shall:
(a) if and to the extent required within the express scope of the Services, use commercially reasonable efforts to make the Lumi Apps available to Respondents free of charge via the Online Stores and subject to each Respondent’s acceptance of the App T&Cs and their ability to download, install and operate the Lumi Apps App on a compatible device;
(b) host (or procure hosting of) research and event content and Respondent Data in accordance with Clause 8; and
(c) provide such other equipment and/or services as set out in the order form and/or as may be agreed with Customer from time to time at agreed rates.
2.3 Customer shall:
2.4 Customer acknowledges that Lumi shall not be responsible for:
(a) sourcing, procuring or managing the relationship of Respondents unless specifically agreed within the Services; or
(b) verifying the integrity, accuracy, reliability, quality or legality of any Raw Data, Respondent Data or any event content.
2.5 If the Parties agree for Lumi to develop a branded version of a Lumi App, then:
(a) Lumi shall develop a version containing Customer’s name and branding, in accordance with specifications and timeframes agreed with Customer;
(b) All Intellectual Property Rights in the branded Lumi Apps shall remain vested in Lumi;
(c) Customer shall pay the additional Fees set out on the Order Form in respect of hosting and deployment of a branded Lumi App, for so long as it remains available on an Online Store; and
(d) Lumi shall remove the branded Lumi App from the Online Stores within 30 days’ of receiving written notice from Customer requesting it to do so.
This Clause 3 shall apply only if Equipment is to be provided by Lumi to Customer pursuant to this Agreement.
3.1 Subject to execution of this Agreement and payment of the Fees, Lumi agrees to provide the Equipment for hire and Customer agrees to hire the Equipment under the terms of this Agreement.
3.2 Loss of or Damage to Equipment
(a) Customer shall at all times during the term of this Agreement have a duty of care to treat the Equipment with at least the same standard of care as it does its own assets. Such care shall include, without limitation, the provision of a safe and secure environment for, where appropriate, the transportation, storage and use of the Equipment.
(b) In the event that the Equipment is lost or damaged as a result of Customer not complying with Clause 3.2(b), or otherwise due to Customer’s negligence or any negligent act or omission by Customer’s employees, contractors, suppliers or any third parties under its control, Customer shall pay to Lumi, on demand, the standard list price for purchase of the Equipment so lost or damaged.
(c) Customer shall at all times and in all respects indemnify Lumi on demand against and from any and every expense, liability, loss, claim or proceeding whatsoever in respect of any personal injury whatsoever and in respect of damage to any property whatsoever (including the Equipment) arising out of or in connection with or consequent upon the hire, delivery, use, misuse, non-use, collection or return of the Equipment by Customer or any part thereof.
3.3 Determination of Hire
Lumi shall be entitled at any time and for any reason whatsoever without explanation, to terminate this Agreement (such termination to be effective immediately) and to repossess or withdraw the Equipment or any part thereof. In the event that Lumi so terminates the Agreement no cancellation fee will be payable by Customer.
3.4 Return of equipment
Where Customer is responsible for arranging transportation of the Equipment, the Equipment must be returned to Lumi prior to 17.00 on the final Date of Hire unless otherwise arranged. Late returns will be charged at Lumi’s then current daily hire rate.
3.5 Electrical Equipment
If Lumi is only hiring the Equipment and is not providing any related Services, Customer acknowledges that the Equipment comprises electrical equipment and should normally be used with plugs and/or sockets as fitted but if temporarily replaced with other suitable plugs or sockets, this must be carried out by a competent person who must also reinstate to the original condition and under no circumstances should electrical Equipment be used without it being correctly earthed unless it is of double insulated construction. Lumi shall not be liable for any liability arising from any failure of Customer to comply with this Clause.
(a) Risk in the Equipment transfers to Customer where it takes receipt of it and, in such circumstances, continues until Lumi confirms receipt of the return of all Equipment. Customer agrees that it will not sell or otherwise part with control of the Equipment unless it is using a third party carrier for transportation Where Customer uses a third party carrier for transportation, Customer has a duty of care to select a reliable and reputable third party carrier and Customer will co-operate fully with Lumi to enable Lumi to make a claim from the third party carrier if required.
(b) Customer undertakes to ensure that (i) no one uses the Equipment who is not properly instructed, (ii) it shall not allow the Equipment to be misused; and (iii) it shall ensure that no one but its or Lumi’s authorised representatives have access to the Equipment.
(c) Customer hereby acknowledges that it is responsible for satisfying itself as to the suitability and fitness for its own purpose(s) of the Equipment and that Lumi shall not be liable for any failure of the Equipment to meet the requirements of Customer save as explicitly set out herein.
4 FEES AND PAYMENTS
4.1 Customer shall pay the Fees to Lumi in accordance with the Order Form and this Clause 4.
4.2 Payments due under this Agreement shall be made in cleared funds within 30 days of the date of the relevant invoice.
4.3 Interest is payable on the balance of any overdue invoice at an annual rate equal to 3% above the Prime Rate charged by the Standard Bank of South Africa Limited. Interest shall be calculated daily on the outstanding balance, from 31 days following the date of the invoice until receipt by Lumi of Customer’s payment in full (including any interest, if applicable) in cleared funds.
4.4 All sums payable under this Agreement shall be free and clear of all deductions or withholdings whatsoever unless the deduction or withholding is required by law or is made in accordance with the provisions of this Agreement. If any deductions or withholdings are required by law to be made from the payment of any sum, Customer shall pay to Lumi such sums as will, after that deduction or withholding has been made, leave Lumi with the same amount as it would have been entitled to receive in the absence of any such requirement to make such withholding or deduction.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights in the Lumi Dashboard, the Lumi Apps, the Equipment and the Lumi Software and any other materials used or supplied by Lumi in connection with the performance of this Agreement (such Intellectual Property Rights and materials together being the “Lumi Materials”) shall remain vested in Lumi (or its licensors) and Customer may not copy or keep any Lumi Materials.
5.2 Customer undertakes not to translate, decompile or reverse-engineer any part of the Lumi Software or allow any third party to carry out such activities unless prior agreement is received in writing from Lumi.
5.3 The Customer may only use the Lumi Software on the Equipment or authorised as compatible with the Equipment by Lumi.
5.4 All Intellectual Property Rights in research and event content, Raw Data and Respondent Data (the “Customer Materials“) shall remain vested in Customer (or its licensors).
5.5 Customer grants to Lumi a non-exclusive, royalty-free licence to use Customer Materials (and including a right to sub-licence) for the purpose of performing its obligations under this Agreement.
5.6 Neither Party may use the other Party’s name, trade marks, logo or service marks except as expressly permitted in this Agreement or with their prior written consent.
5.7 Each Party shall notify the other immediately if it becomes aware of any unauthorised use of the other’s Intellectual Property Rights and will assist the other (at the other’s costs) in taking all reasonable steps to defend their rights therein.
5.8 The provisions of this Clause 5 shall survive the termination of this Agreement.
6 TERM AND TERMINATION
6.1 This Agreement commences on signature of the Order Form by the parties. Subject to Clause 6.2, this Agreement will terminate when all parties have discharged their contractual obligations under this Agreement.
6.2 Either Party may terminate this Agreement immediately upon written notice to the other Party:
(a) under Clause 12.4; or
(b) in the event of a material breach of this Agreement by the other Party which is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the Party not in default of a written notice on the other Party, specifying the nature of the breach and requiring that the same be remedied; or
(c) if the other Party shall cease carrying on business in the normal course, or goes into insolvency or liquidation (not being a members’ voluntary winding up) or administration or a business rescue practitioner is appointed over any part of its undertaking or assets.
6.3 On termination of this Agreement under Clause 6.2 or expiry of this Agreement for any other reason:
(a) subject to Clause 8.1, all licences granted under this Agreement shall immediately terminate;
(b) Customer shall promptly pay to Lumi all Fees due, including in respect of services performed, up to the date of termination or expiry; and
(c) each Party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
7.1 Early cancellation of this Agreement prior to expiry of the Term by Customer shall make it liable to pay to Lumi the cancellation charges as set out in Clause 7.2.
7.2 Cancellation Charges
(a) If Customer cancels 60 days or more prior to the Relevant Date, the charge shall be 10% of Fees;
(b) If Customer cancels less than 60 days prior to the Relevant Date, the charge shall be 25% of Fees;
(c) If Customer cancels less than 30 days prior to the Relevant Date, the charge shall be 50% of Fees;
(d) If Customer cancels 7 days or less prior to the Relevant Date, the charge shall be 100% of Fees.
For the purposes of this Clause 7.2, the “Relevant Date” shall be the earlier of subscription date, the go-live date and the Event date.
7.3 Subject to Clause 6.2, cancellation charges shall be due and payable immediately upon notice of cancellation of the Agreement by Customer.
7.4 Any reduction in the Services or the Equipment requested by Customer after signature of the Order Form will be treated as a cancellation for the purposes of this Agreement and the cancellation charges as set out in Clause 7.2 will apply to any Services or Equipment so cancelled.
8 RESPONDENT DATA
8.1 All Respondent Data shall be owned by Customer. Customer hereby grants to Lumi a perpetual, non-exclusive and royalty-free licence to use the Respondent Data and the Raw Data for its own purposes provided that such use is on an aggregated basis and is de-identified so that it does not identify, or reveal any personally identifiable information regarding, any individual Respondent.
8.2 For the purposes of the Data Protection Legislation, and for the purposes of processing of the Respondent Data and Raw Data to the extent necessary for performance of this Agreement, Customer shall be the Responsible Party and Lumi shall be the Operator in connection with processing necessary for the performance of its obligations under this Agreement, and Lumi shall:
(a) process the Respondent Data and Raw Data solely in accordance with Customer’s lawful instructions from time to time; and
(b) take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal information or its accidental loss, destruction or damage.
8.3 Customer agrees and acknowledges that the Respondent Data and the Raw Data may be hosted, stored and/or processed by third party service providers on Lumi’s behalf.
8.4 Customer represents, warrants and undertakes that:
(a) it has obtained from the relevant individuals to whom such personal information relates sufficient consents in order for Lumi and any relevant third parties to be able to lawfully process it in accordance with this Agreement and the Data Protection Legislation;
(b) in collecting, processing and supplying such personal information, it has complied with the Data Protection Legislation and all other applicable laws and regulations; and
(c) receipt or use of such personal information by Lumi and/or any relevant third parties in accordance with Customer’s instructions will not put Lumi and/or any relevant third party in breach of any Data Protection Legislation or other applicable laws or regulations, or infringe the rights of any third party,
and indemnifies Lumi and its Associates and third party suppliers against any loss, cost or damage arising out of any breach of any of the above representations, representations or undertakings.
8.5 Notwithstanding any other term herein, Lumi reserves the right to use in any way it thinks fit any skills, knowledge and techniques acquired by it in providing the Services and the Equipment pursuant to this Agreement.
9.1 Each Party warrants to the other that:
(a) it has full power and authority to enter into this Agreement and grant the rights set out within it, and that by doing so it will not be in breach of any obligation to a third party; and
(b) it shall comply with all applicable laws, including without limitation Data Protection Legislation, in performing its obligations under this Agreement.
9.2 The express terms of this Agreement are in lieu of all warranties, representations, guarantees, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law. The Lumi Dashboard, the Lumi Apps, the Equipment and any other products or services supplied by Lumi under this Agreement are provided “as is” and without any warranty as to merchantability, fitness for a particular purpose or that they are error-free or will operate without interruption.
10.1 Subject to Clause 10.2, Lumi’s maximum aggregate liability under or in connection with this Agreement (including any indemnity contained in this Agreement), whether in contract, misrepresentation, delict (including negligence) or otherwise, shall in no circumstances exceed the total Fees paid to Lumi under this Agreement.
10.2 Nothing in this Agreement shall be construed as excluding the liability of one Party to the other for:
(a) death or personal injury to the extent that it results from its negligence;
(b) any breach of any obligations implied by the South African Consumer Protection Act; or
save to the extent it is lawful to do so.
10.3 Subject to Clause 10.2, in no event will either Party be liable under or in connection with this Agreement for loss of actual or anticipated income or profits, loss of goodwill or reputation, loss of anticipated savings or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
11.1 Each of the Parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other Party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other Party (“Confidential Information“).
11.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other Party would regard as confidential.
11.3 Confidential Information shall exclude information which:
(a) at the time of receipt by the recipient is in the public domain;
(b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
(c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or
(d) is already known to the recipient before receipt hereunder.
11.4 Each of the Parties undertake to maintain the confidentiality of the other Party’s Confidential Information at all times and to keep the other Party’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither Party shall at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other Party, use, disclose, exploit, copy or modify any of the other Party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
11.5 Each of the Parties undertakes to disclose the other Party’s Confidential Information only to those of its employees, Associates, professional advisors and (in the case of Lumi only) to service partners to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
11.6 Neither Party shall be in breach of this Clause 11 if it discloses the other Party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other Party is, to the extent practicable, given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
11.7 The terms of and obligations imposed by this Clause 11 shall survive the termination of this Agreement for any reason.
12 FORCE MAJEURE
12.1 Neither Party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event“).
12.2 Force Majeure Events shall include but not be limited to the following:
(a) strikes (other than of its own staff), lock-outs or other industrial action;
(b) civil commotion, riot, invasion, war (whether declared or not) or threat of or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of all means of public or private transport, or any communications or information network (including the internet);
(e) unavailability of any electricity or other utilities, or unavailability or material change in any third party technologies or platforms (or the rules governing such technologies or platforms) which is not due to act or omission of a Party to this Agreement;
(f) error, failure, interruption, delay or non-availability of any goods or services supplied to Lumi by a third party;
(g) act or order of any authority; or
(h) compliance with any change in law or change in regulation which would prohibit the performance of any obligation pursuant to this Agreement.
12.3 The Party whose performance is affected by a Force Majeure Event shall, within two (2) Business Days of becoming aware of the Force Majeure Event, provide a written notice to the other Party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
12.4 If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding 30 (thirty) days the non-affected Party shall have the right to terminate this Agreement forthwith on written notice to the affected Party. Each Party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
13.1 Any notice, invoice or other communication which either Party is required by this Agreement to serve on the other Party shall be sufficiently served if:
(a) sent by personal delivery, registered post or recorded delivery to the other Party at the address specified in this Agreement (or such other address as is notified to the other Party in writing); or
(b) sent by email or facsimile to that Party, using the details provided in the Order Form provided that email and/or facsimile shall not be sufficient for notices of termination or of a claim.
13.2 Notices sent:
(a) by personal delivery shall be deemed to have been given upon the day on which it is actually received by the relevant Party;
(b) by registered post or recorded delivery shall be deemed to be served seven (7) Business Days following the day of posting;
(c) by facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 4.00 p.m. on a Business Day, but otherwise on the next following Business Day; and
(d) by email shall be deemed to be served upon receipt by the sending Party of an email (emanating from the email address of an authorised representative of the relevant Party) which confirms receipt of the notice. For the avoidance of doubt, an automatically generated ‘read receipt’ or ‘delivery receipt’ does not constitute confirmation of receipt for the purposes of this Clause.
14 ASSIGNMENT AND SUB-CONTRACTING
14.1 Customer acknowledges that Lumi relies on third parties to deliver its products and services, and therefore consents to Lumi sub-contracting performance of certain parts of its obligations under this Agreement to such third parties.
14.2 Neither Party may assign, novate, or transfer this Agreement or any part of it without the prior written consent of the other, save that Lumi may assign, novate or transfer all or part of it to an Associate on prior written notice to Customer.
15 RIGHTS OF THIRD PARTIES
Save in respect of Associates of Lumi, a person who is not a Party to this Agreement has no enforceable benefit or any right to enforce any term of this Agreement.
16.1 Subject to Clause 8.4, the failure of any Party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that Party’s right later to enforce or to exercise it.
16.2 Lumi shall be entitled to describe, in general terms, its relationship with Customer and its provision of the Services and the Equipment in publicity materials, and to include Lumi branding on the Lumi Apps, the Lumi Dashboard and other Lumi Materials.
16.3 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.4 This Agreement contains all the terms agreed between the Parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the Parties acknowledges and agrees that:
(a) in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement
16.5 The law of South Africa shall govern the rights and obligations of the Parties; the construction of the same; and, so far as possible, all other matters arising out of or connected with, the making, execution and termination of the same,. All disputes arising out of or in connection with this Agreement that cannot be settled amicably shall be resolved through arbitration by the Arbitration Foundation of South Africa in accordance with its rules. Any arbitration awards shall be final and binding on the parties.
16.6 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
16.7 No modification or variation of this Agreement (or any document entered into pursuant to or in connection with this Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to this Agreement.