End User Agreement

 

End User:

means any individual/s or entity that purchases or subscribes for the Cloud Services or Non-Cloud Services through the Reseller’s Webstore, for Services Consumption. “You” and “Your” in these Terms refers to You as the End User as: (i) Your Subscribing Organization, (ii) You, an individual user, and (iii) any other Subscribing Organization personnel accessing and using the First For Cloud Platform and/or the Reseller’s Webstore on the Subscribing Organization’s behalf.

Services: means:-

Cloud Services: means any Software as a Service (SaaS), Platform as a Service (PaaS), Infrastructure as a Service (IaaS) and/or Internal Applications exposed as a service that maybe purchased or subscribed for through a Reseller’s Webstore.

Non-Cloud Services: means any offering that may be purchased or subscribed for through a Reseller’s Webstore that is not a Cloud Service (eg: Consulting, Implementation, Training, Airtime, Software downloads, etc.).

Additional Services: means any of the Resellers own migration, implementation or consultancy services which are required or are on offer from the Reseller to the End User in connection with its provision of the Cloud Services and Non-Cloud Services.

Terms: shall mean this End User agreement and all terms and conditions contained herein as may be amended from time to time.

Reseller and the Reseller Webstore: shall mean the person, company or entity which resells Cloud Services and Non-Cloud Services through the Reseller Webstore to End Users for Services Consumption.

Services Consumption: means the authorised use of the Cloud Services and Non-Cloud Services in the regular course of an End User’s business or for personal use, and not for resale or sublicensing by such End User. This use is further governed by the Terms herein.

Fees: means the fees payable by the End User to the Reseller for any Cloud Services and/or Non-Cloud Services and/or Additional Services that are consumed by the End User.

Third Party Service Providers: means:-

Cloud Service Provider: a Vendor Company that creates, develops and operates an Infrastructure (IaaS), Platform (PaaS) or Software (SaaS);

Non-Cloud Service Provider: a Vendor Company that creates, delivers and operates a Non-Cloud Service.

First For Cloud Platform:means the electronic online platform which enables Cloud Services and Non-Cloud Services to be sold, provisioned and managed.

NOW THEREFORE YOU HEREBY:

Acknowledge and agree that any Cloud services and/or Non-Cloud services (“the services”) purchased by You from a Reseller through its Reseller Webstore, is provided to You by Third Party Service Providers and these transactions are managed within the First For Cloud Platform.  This document constitutes a legal agreement between You, the Reseller and First For Cloud for any engagement and/or interaction between You and the First For Cloud Platform and/or Reseller Webstore. You acknowledge that You have read, understood, and agree to be bound by the following terms and conditions, and any additional policies and future modifications (collectively, the “Terms”). If at any time You do not agree to these Terms, please immediately terminate Your use of the First For Cloud Platform and/or the Reseller Webstore.

Capacity:

You hereby represent that You are at least 18 years of age and have not been previously suspended or removed from the First For Cloud Platform.

Engagement:

If You are engaging with the First For Cloud Platform and/or the Resellers Webstore on behalf of a company, entity, or organization (collectively, a “Subscribing Organization”) then You represent and warrant that You are an authorized representative of that Subscribing Organization with the authority to bind such Subscribing Organization to these Terms, and that You agree to these Terms on behalf of such Subscribing Organization.

Use of Services:

Subject to Your ongoing compliance with these Terms, First For Cloud and/or the Reseller hereby authorizes You to use the Services in the regular course of Your business or for personal use, and not for resale, distribution, leasing, rental, loaning, sales, sublicensing, distribution or otherwise transfer of the licenses by You. Such use cannot be transferred to an unauthorised third party.

The Services offered on the First For Cloud Platform through the Reseller’s Webstore are made available by Third Party Service Providers that are not affiliated with First For Cloud and/or the Reseller and, as such, You agree that First For Cloud and/or the Reseller is not responsible for such Services. First For Cloud and/or the Reseller will have no direct or indirect responsibility for or in relation to the performance or delivery, in any manner whatsoever, of the Services.Your purchase of, access to, performance of and use of the Services are regulated directly between You and the applicable Third Party Service Provider, and is subject to that Third Party Service Provider’s terms of use, which You will have the opportunity to review and accept before processing Your transaction.

End User Support:

Support will be provided to a query raised by You when you telephonically contact the Reseller’s Webstore Support Team or log a ticket on the First For Cloud Support Ticketing System. Both forms of End User Support will be made available to You through the Reseller’s Webstore.

Ownership and Proprietary Rights:

Your engagement with the First For Cloud Platform and/or the Reseller’s Webstore does not confer to You any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any Intellectual Property Rights vesting in First For Cloud and/or the Reseller. First for Cloud and/or the Reseller expressly reserves all of its Intellectual Property Rights, and no licences are granted by implication, estoppel or otherwise to You except as expressly set forth in this Agreement.

Fees:

You are legally bound and obliged to pay the Reseller a Fee for all Services purchased by You for Services Consumption. In addition You will be liable to the Reseller for a fee in relation to any Additional Services consumed by You. The Fees applicable for the Services and the Additional Services are subject to change.

Transaction Processing:

Transactions in respect of Your purchases, are processed directly and applicable fees are collected by the Reseller. Collection of Fees will occur through the applicable payment methodology between You and the Reseller. Recurring payments for periodic subscriptions are processed on the first of each calendar month in respect of that month.

Taxes:

You acknowledge and agree that the You are responsible for payment of all applicable sales, use, consumption, VAT, GST and other taxes and all applicable export and import fees, customs duties and similar charges arising from the payment of Fees under these Terms.  You will make all payments to the Reseller without reduction for any withholding taxes, which taxes shall be Your sole responsibility.

Privacy:

You acknowledge and agree to the use of any personal identifiable information you may provide First For Cloud and/or the Reseller within the scope of the data practices described in the Privacy and Security Policy available at PRIVACY & SECURITY POLICY.

Warranty Disclaimer:

You expressly agree that the use of the First for Cloud platform is at your sole risk. The First for Cloud platform and any data, information, third party software, user submissions, services, reference sites, services, or services made available in conjunction with or through the First for Cloud platform are provided by First for Cloud and the reseller on an “as is” and “as available”, “with all faults” basis and without warranties or representations of any kind either express or implied.

You may, however, have additional warranty rights directly from the applicable thrid party service provider. To the fullest extent permissible pursuant to the applicable laws of the Republic of South Africa, the reseller and First for Cloud, and its affiliates, partners (including syndication partners), and suppliers disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. The reseller and First for Cloud, and its affiliates, partners (including syndication partners), and suppliers do not warrant that the data, user submissions, features, functions, or any other information offered on or through the First for Cloud platform or any reference materials will be uninterrupted, accurate, useful, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing, if encountered, will be corrected.

The reseller and First for Cloud, its suppliers, licensors, affiliates, and partners do not warrant or make any representations about the third party service providers or the third party service provider’s services. Any warranty made regarding any third party service provider’s service is made directly by such third party service provider. Certain jurisdictions do not allow limitations on implied warranties. The exclusions of warranties contained in these terms apply to you to the fullest extent such limitations or exclusions are permitted under the laws of the republic of South Africa.

Limitation of Liability.

Under no circumstances, including, but not limited to, will the reseller and First for Cloud or its affiliates, contractors, employees, agents, or third party service providers, partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues or loss of anticipated profits) arising out of or relating to these terms or that result from your use or your inability to use and/or access the services, the First for Cloud platform or any reference sites, or any other interactions with First for Cloud and the reseller, even if First for Cloud and/or the reseller and/or a First for Cloud authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, the reseller’s and First for Cloud’s liability will be limited to the fullest extent permitted by laws of the republic of South Africa.

Basis of the Terms:

You acknowledge and agree that First for Cloud and/or the reseller has offered you the use of the first for cloud platform, and entered into these terms in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and First for Cloud and/or the reseller, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the terms and conditions between you and first for cloud and/or the reseller. First for Cloud and /or the reseller would not be able to provide the First for Cloud platform to you on an economically reasonable basis without these limitations.

Waiver and Variation:

The failure of First For Cloud and/or the Reseller to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver or amendment of any of the provisions of these Terms will be effective only if reduced to writing and signed by First For Cloud and/or the Reseller.

Amendment of Terms:

First For Cloud and/or the Reseller reserves the right, at its discretion, to change, modify, add, amend, or remove portions of these Terms at any time by posting the amended Terms to the Webstore. The Reseller and/or First For Cloud will use commercially reasonable efforts to notify You of the change, such as through the use of a pop-up window in the Webstore, or by sending an email to the address You provide upon registration. Your continued use of the First For Cloud Platform and/or the Reseller’s Webstore after the changes become effective constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or Fees will automatically be effective upon the earlier of (a) Your use of the Reseller’s Webstore with actual notice of the new terms, or (b) thirty (30) days after they are initially posted on the Reseller’s Webstore; provided however, that any dispute that arises under this Agreement shall be resolved according to the version of the Terms that were in place at the time the dispute arose.

Refund Policy and Risk of Loss:

All Fees relating to Your Services Consumption and/or Additional Services consumption are final and nonrefundable. The applicable Third Party Service Provider may have its own policies regarding refunds which are available to You, as set forth in the applicable Third Party Service Provider’s terms. If You have paid for access to Services that is later disabled, nonfunctioning, modified, or otherwise interfered with before the end of the period for which You purchased access, You may rely on the applicable Third Party Service Providers terms of use for any remedies available to Yourself.

Availability of Content:

First For Cloud and/or the Reseller may make changes to or discontinue any of the Services and/or Additional Services available through the Reseller’s Webstore  at any time. In the event that the Services purchased by You is no longer accessible through the Reseller’s Webstore, You must contact the applicable Third Party Service Provider directly to ensure continuity of service during the remaining term of the applicable subscription. In the event that the Services are being discontinued by the Third Party Service Provider, You will only be liable for those Fees in direct relation to Your Services Consumption.

Account:

When You set up an account on the Reseller’s Webstore, You will be issued a password. You may also establish individual user accounts and passwords under Your master account. You are solely responsible for maintaining the confidentiality of Your accounts and passwords, and for restricting access to them, and You agree to accept responsibility for all activities that occur under Your accounts or passwords. Information You provide to the Reseller during registration and at all other times must be true, accurate, current, and complete. You also agree to keep this information accurate and up-to-date at all times. If You have reason to believe that Your account has been compromised, then You agree to immediately notify the Reseller.

Dispute Resolution:

A dispute in the widest sense in connection with these Terms or which relates in any way to any matter affecting the interests of the Reseller and/or the End User and/or First For Cloud (“the Parties”), in regard to these Terms (“Dispute”), shall be deemed to have arisen when either Party notifies the other Parties in writing to that effect.

Should any Dispute (other than a Dispute in respect of which urgent or interim relief may be obtained from a court of competent jurisdiction) arise, the Parties shall first use reasonable endeavours to resolve such Dispute through good faith negotiations.  This entails one of the Parties inviting the other in writing to meet, either in person or by means of telephone or video conferencing facilities, and to attempt to resolve the Dispute within 10 Business Days from date of written invitation.  In the event that such negotiations do not result in a mutually acceptable resolution within 10 Business Days of the commencement thereof, the Dispute shall be handled in accordance with the below.

Any Dispute shall be referred to arbitration on notice by one Party to the other, and be finally resolved in accordance with the rules of the Arbitration Foundation of the Republic of South Africa.  Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules.

Any arbitration award will be final and not subject to appeal.  This agreement to arbitrate shall be enforceable, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction.

These provisions shall not prevent either Party from approaching any court or other judicial forum in any country having appropriate jurisdiction to obtain timely interim or other relief in cases of urgency.

The provisions of this clause shall constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.

Term:

The terms contained in this agreement will commence upon your engagement with the First For Cloud Platform and will continue in perpetuity until such engagement terminates due to your breach of the Terms of this agreement.

Governing Law:

This agreement shall be governed by the laws of the Republic of South Africa. Any action instituted in respect to the terms hereof, shall be instituted in Johannesburg, Gauteng, South Africa.

Severability:

In the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, and this agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this agreement, and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.