Terms of Use
Terms of Use
Welcome to Voltcor, an exclusively owned and managed brand of Monza Media CC. We offer e-commerce and brochure template based, website system offering a simple to use and locally supported content management system. By signing the initial agreement contract with us, and registering an account with us, you agree to, and are bound by the Terms & Conditions laid out in our Terms of Use available here. You as the signing party, whether an individual; business owner or business representative, must read all the terms prior to signing the contract. All services and features offered by Monza Media are referred to in the Terms of Use as well as any new features added subsequently. We reserve the right to amend, update or change the Terms of Use at any time. Additionally all information and clauses related to how we handle your privacy and your website information can be found in our Privacy Policy : https://voltcor.com/privacy-policy.
1. INTERPRETATION
1.1. In the agreement, unless the context clearly otherwise indicates:
1.1.1. “Business Day” means any day other than a Saturday, Sunday or public holiday officially recognised as such in the Republic of South Africa;
1.1.2. "Agreement" means the signed contract agreement and any annexures thereto;
1.1.3. “Commencement Date” means the date stated on the Agreement;
1.1.4. “Intellectual Property” means all and any of the rights in and to intellectual property including (without limitation) the rights in and to designs, technical drawings, plans and any draft versions, material combination, sample references, trade names, logos, patents, production methods, inventions (whether patentable or not), presentations, plans, diagrams, wire-frames, screenshots, know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any registration of such rights and applications and rights to apply for such registrations, as well as any confidential information or processes which belong to Monza Media or the Client or both;
1.1.5. "Fee" means an amount paid to Monza Media for rendering the Services, as further described in the agreement;
1.1.6. “Parties” means Monza Media, and the Client and “party” shall mean any one of them as the context may indicate;
1.1.7. “Services” means the services to be provided by Monza Media to the Client in accordance with the terms and subject to the conditions set out in the Agreement, as further defined in clause 4 below;
1.1.8. “Signature Date” means the date upon which the agreement is signed by the party who signs last; and
1.1.9. “VAT” means value-added tax, as levied under the Value Added Tax Act 89 of 1991 (as amended).
1.2. Words importing the singular shall include the plural and vice versa, words importing any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
1.3. The head notes to the paragraphs to this agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
1.4. If any provision in the abovementioned definitions and/or the preamble hereto is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in this clause 1, effect shall be given thereto as if such provision were a substantive provision in the body of the agreement.
2. APPOINTMENT AND DURATION
2.1. The Client hereby appoints Monza Media to provide the Services and Monza Media hereby accepts such appointment.
2.2. This Agreement will commence on the Commencement Date and shall remain in force for 12 months and thereafter perpetually until terminated in writing. The Client accepts that it will have no claim whatsoever against Monza Media prior to the Commencement Date.
3. RELATIONSHIP OF THE PARTIES
3.1. The relationship of the parties is governed by the terms of the Agreement and nothing contained therein will constitute a partnership, joint venture, employment relationship or similar type of agreement between them. No party shall by reason of the actions of the other party incur any personal liability as a co-partner to any third party.
3.2. The appointment of Monza Media shall not be exclusive. Accordingly, Monza Media shall be entitled to contract with third parties in relation to the similar subject matter as set forth in the Agreement.
4. THE SERVICES
4.1. Monza Media shall provide the Client with software services in respect of which the Monza Media shall assist the client in establishing and running an online e-commerce shop for the sale of goods and/or services. In the case of a brochure website services will relate to assisting in establishing and populating the website initially and subsequently updating information as needed.
4.2. API / Third Party Integrations
4.2.1. Monza Media cannot absorb the cost of every required API or third party integration. Therefore, some integrations would need to be additionally quoted for and accepted by the Client before proceeding. Please consult Monza Media for the most current Monza Media packages for third party applications that are available.
4.2.2. API / 3RD party integrations that have already been implemented by the Monza Media team, may have no set up charge to integrate but can mean a monthly cost for each integration added to the system.
4.3. LOCATION
4.3.1. Monza Media’s normal place of work will be at the premises of Monza Media located at Unit 1, Gardens Business Village, Incholm Place, Gardens, Cape Town, 8001. or such other place within or outside of the Republic of South Africa as Monza Media may decide from time to time.
4.4. Hours of Work
4.4.1. Monza Media's normal hours of work will be between 08h30 and 17h00, Monday to Friday, excluding officially recognised South African public holidays.
4.4.2. The Client specifically agrees that, where required to work on weekends, public holidays or outside of what may be regarded as normal working hours, Monza Media shall inform the Client of this and additional remuneration may be required as a result of the Monza Media staff having to work outside of standard
working hours.
5. DUTIES
During the Agreement, Monza Media shall:
5.1. provide the Client with the shop URL which is https://www.companyname.co.za and the Vault admin section is as per https://www.companyname.co.za/shop;
5.2. assist the Client in setting up its e-commerce shop in accordance with its chosen package;
5.3. ensure that the admin section of The Vault remains in good working order and functional at all times;
5.4. perform all its duties in a professional manner and to the best of its ability;
5.5. comply with all lawful and reasonable requests and/or instructions given to them from time to time by the Client;
5.6. devote normal working hour times during the working day to bugs, errors or unforeseen circumstances that affect the functioning of the e-commerce checkout process;
5.7. remain honest and faithful to the Client in the performance of their duties and not do anything which may bring the Client's name into disrepute.
6. RETAIL BEHAVIOURS FOR SHOP USERS
6.1 Client agrees, unless otherwise discussed and agreed, not to sell the same or similar products under the same or similar brand name/s on other e-commerce platforms in the interest of fairness to Monza Media and the potential commission earned from the product sales on your website.
6.2 Client agrees to manage the advertising; online and social media marketing to promote, to the best of your ability, sales on the website. This includes 3rd party applications and services e.g. Google Ads; Instagram Shop etc.
6.3 Monza Media agrees to provide the agreed 3rd party integrations, to the best of our ability, available in the current system and for future integrations where we see fit. Support for the 3rd party integrations may need to be logged and discussed with the external company running that 3rd party application/program and will not be provided by Monza Media.
7. PAYMENT TERMS
7.1 The Client will pay Monza Media the agreed Fee as per selected price tier at the end of each calendar month on receipt of invoice. Any invoices delivered by Monza Media to the Client shall reflect the Fee and any additional disbursements or costs, inclusive of Value Added Tax (VAT), where applicable. The first invoice will be generated on the 15th of the very next calendar month after the contract commencement.
7.2 Price Tiers:
7.2.1 Client will select a price tier package as per current available packages. Price Tiers are subject to change.
7.2.2 Should you wish to migrate from one price tier to another, we will require 3 months of turnover data to match the next price tier minimums. The new tier pricing will commence at the start of a new calendar month.
7.2.3 Gross sales turnover will be measured by using the Monza Media reporting module only.
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- Payment is required by the 7th day of the following month.
- Failure to pay by the end of the following month will result in suspension of services and your website will be taken offline. Full proof of payment will be required for website re-activation.
7.6. The Fee will be paid free of exchange, bank fees or set off, by the Client into Monza Media's South
African bank account nominated in writing for that purpose, or as displayed on an invoice.
9. GENERAL OBLIGATIONS AND WARRANTY OF THE CLIENT
9.1. The Client undertakes to Monza Media that it will:
9.1.1. pay all fees in terms of clause 7 above punctually and in full; and
9.1.2. provide accurate and complete information to Monza Media as and when requested,and work collaboratively with Monza Media to ensure the highest quality delivery of the Services. Should the Client fail to provide Monza Media with accurate, timeous, and complete information as aforesaid, Monza Media shall be entitled to suspend performance of the Services, and the Client shall hold Monza Media harmless in relation to any damages or loss suffered by the Client resulting from such suspension.
9.2 The Client represents and warrants to Monza Media that in entering into this Agreement, the
Client is not in breach of any express or implied terms of any contract or of any obligation
to any third party.
10. TERMINATION
10.1. This Agreement will terminate:
10.1.1. at the end of the 12 month contract from the commencement date
10.1.2 post the 12 month contract period: after the notice period in the event that either party provides the other party with not less than 30 (thirty) calendar days written notice that it wishes to terminate this Agreement; or
10.1.3. where either party becomes entitled to cancel this Agreement in terms of clause 11 below, pursuant to an unremedied breach of this Agreement.
10.2. After termination of the Contract with Monza Media for any reason whatsoever, the Client shall
not represent themselves as being connected with the business affairs of Monza Media.
11. BREACH
11.1. If any Party (“the Defaulting Party”) commits a breach of any of the material provisions of this Agreement and fails to remedy such breach within 10 (ten) Business Days of receipt of written notice from another Party calling upon it to do so then the innocent Party shall be entitled, without prejudice to any other rights which it may have in terms of this Agreement
and/or at law to –
11.1.1. cancel this Agreement forthwith, with or without claiming damages, provided that no
Party shall be entitled to cancel this Agreement unless the breach is a material breach of a material term, and the remedy of specific performance or damages would not adequately prevent the innocent Party from being prejudiced; or
11.1.2. obtain an order against the Defaulting Party for specific performance, with or without claiming damages; and
11.2. claim such damages as it may have suffered in lieu of specific performance together with all amounts owing under or in terms of this Agreement.
12. DISPUTE RESOLUTION
12.1. Should any dispute or difference arise between the parties in relation to this Agreement, the parties shall meet within 5 (five) Business Days of such notice and negotiate in good faith to resolve such dispute.
12.2. Should the parties fail to resolve such dispute or difference in the aforesaid manner or within such further period as the parties may agree to during their negotiation, either party shall be entitled to give notice of arbitration, provided that such notice shall not be given within 7 (seven) Business Days from the date that the parties first met as contemplated in clause 12.1 above.
12.3. The arbitration shall be held in accordance with the Commercial Arbitration Rules of Arbitration Foundation of Southern Africa (“AFSA”), by an arbitrator agreed upon between the parties, or, failing agreement within 7 (seven) Business Days, appointed by AFSA.
12.4. Unless otherwise agreed by the parties in writing the arbitration shall be held in Cape Town, South Africa.
12.5. The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.
13. CONFIDENTIALITY
13.1. Unless otherwise agreed to in advance, in writing, or except as expressly permitted by the Agreement, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party or disclose any Confidential Information to any third party.
13.2. The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
13.3. Upon the termination or expiration of this Agreement for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in a tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.
14. INTELLECTUAL PROPERTY
14.1. Each party shall retain ownership over any and all Intellectual Property created or owned
by such party prior to the commencement of this Agreement and for the duration of this Agreement. Nothing contemplated herein shall be construed as alienating, encumbering, ceding, or otherwise transferring ownership in and to either party’s Intellectual Property in favour of the other party.
14.2. The Monza Media's Intellectual Property may only be used by the Client as specifically authorised in terms of this Agreement or otherwise in writing by Monza Media.
14.3. shall immediately disclose to the Client all Intellectual Property made or conceived by Monza Media, whether alone or in conjunction with others, in the course and scope of providing the Services. To the extent that the Intellectual Property does not vest automatically in the Client, Monza Media hereby, free of consideration, unconditionally cedes and assigns to the Client all their rights in and to this Intellectual Property, which rights shall become and remain the sole property of the Client. It is further recorded that the Client shall be entitled to cede and assign all such rights to any other person without limitation.
14.4. All such Intellectual Property shall be deemed, unless Monza Media is able to establish the contrary, to have been conceived by Monza Media during the course and scope of rendering the Services to the Client.
14.5. Monza Media shall, on request, sign all documents and to do all things necessary, at the cost of the Client, to comply with all legal formalities to enable the Client to take assignment of all such Intellectual Property or copyright that is created or comes into existence during the course and scope of rendering the Services and to obtain or to record such Intellectual Property at any intellectual property registry in the world.
14.6. Should Monza Media fail to sign any cession, assignment or other required documents provided for in this clause and fail to hand them to the Client or its representative within 7 (seven) days after requested, then Monza Media irrevocably and in rem suam appoints any director nominated by the Client, with power of substitution, as the agent of Monza Media, to sign any cession, assignment or other required document on Monza Media's behalf.
15. COPYRIGHT
15.1. Monza Media acknowledges that the Client shall, by operation of law, become the owner of the copyright in any work which is eligible for copyright (including, without limitation, rights in computer software and data bases) and which is created or executed by Monza Media, whether alone or with others, in the course and scope of rendering the Services, and during the duration of this Agreement.
15.2. Insofar as it may be necessary, Monza Media cedes and assigns to The Client the copyright in any work created or executed Monza Media, whether alone or with others, in the course and scope of rendering the Services.
15.3. Monza Media undertakes not to exercise any moral and/or residuary rights in respect of any work created or executed by Monza Media, whether alone or with others, during the course and scope of rendering the Services and after the expiry termination of this agreement.
16. DATA PROCESSING
For our full Privacy Policy please see: https://voltcor.com/privacy-policy.
16.1. For this clause, “Responsible Party” is used as defined under the South African Protection of Personal Information Act, 2013 (“POPI”) to mean the party who sources and decides what to do with the personal data they have attained for processing. Similarly, the use herein of the term “Operator” as per POPI is used to mean the party who processes personal data on the Responsible Party’s instruction for a particular processing function.
16.2. Both parties understand that they may process (including but not limited to, accessing, seeing, recording, using, transmitting and/or routing) personal data of data subjects as either a Responsible Party (for their own personal data acquired for their purposes) or as an Operator (for the personal data provided to them from the Responsible Party).
16.3. Both parties warrant to the other that they will adhere to all requirements and duties imposed on them by the application of POPI, as dictated by the role that they fulfill relating to the personal data they process.
16.3.1. Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under POPI related to their role as either or both the
relevant Responsible Party and/or Operator.
16.3.2. These duties naturally include the duty of each party to retain and store all data
received from the other party as strictly confidential at all times.
16.4. Should either party require the other party to fulfil any particular conditions relating to its
processing of any personal data as the Operator, the parties shall detail and agree to the
same conditions in a distinct written data processing agreement between them.
16.5. If either party operates as a Responsible Party, they warrant to the other party (as the relevant Operator of the Responsible Party’s personal data handed to them) that they have expressly obtained all relevant consents and/or can evidence its lawful bases for relaying any of their own or own users’/data subjects’ personal data to the other party for the purposes of that other party processing it for whatever reason as the Operator.
16.6. Both parties also warrant to each other that they have no criminal convictions or judgments recorded against them which relate to crimes relating to fraud, unlawful use of personal information or any crime related to the illegal use or processing of personal information in any way.
16.7. Both parties also understand and agree that for data continuity and risk-mitigation purposes, should this agreement be terminated for any reason, and unless otherwise provided for in another data processing agreement between them, the parties will immediately cease all processing of personal data provided to them by the other party, as well as permanently delete/destroy any personal data of the other party’s on/within their systems. To assist each other in this process, both parties will provide the other party with whatever information or tools needed in order to action this destruction as required.
17. INDEMNITY AND LIABILITY
Each party agrees to indemnify and hold the other harmless from and against any and all actions, claims, demands, proceedings or judgments (collectively “claims”) and any and all losses, liabilities, damages, costs, charges and expenses (collectively “losses”) of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or are suffered or incurred by a party relating to its own breach of obligations under this Agreement.
18. FORCE MAJEURE
18.1 Performance of the obligations of Monza Media in terms of this Agreement shall be excused for
as long as and to the extent that such Party is unable to deliver performance because of any
cause beyond its control and for which it is not responsible which, if qualifying as such shall
include, without limitation, an act of God or State or war (whether declared or not) or
sabotage, fire, flood, riot, strike, lock-out, pandemic downtime of any third party
communication (including telecommunication) infrastructure, governmental restriction,
affecting the performance of such obligations, Monza Media shall –
18.1.1 As soon as it becomes aware of any such force majeure event, immediately give
notice to the Customer (which shall be confirmed in writing as soon as possible
thereafter as is possible) detailing the circumstances on which it relies and an estimate
of the likely duration of such inability, where possible; and
18.1.2 Notify the Customer as soon as the event terminates, by giving notice thereof to
Customer, which shall be confirmed in writing as soon thereafter as is possible;
18.2 The Parties shall co-operate together and use all reasonable efforts to overcome, or failing
which, to minimise the effect of such inability;
18.3 Monza Media shall be excused and subsequently not obliged perform any obligation hereunder
not performed as a consequence of and during any such inability, and the duration of this
Agreement shall not be extended as a consequence of any such inability.
19. SERVICE ADDRESS
The parties choose as their domicilia citandi et executandi (“domicilium”) their respective addresses
set out on the cover page of this Agreement for all purposes arising out of or in connection with this
Agreement at which addresses all the processes and notices arising out of or in connection with this
Agreement, its breach or termination may validly be served upon or delivered to the parties.
20. GENERAL PROVISIONS
20.1. Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.