Thuthukani Technical Solutions Cloud Services Agreement
This Agreement governs your acquisition and use of Thuthukani Technology Solutions (Pty) Ltd, (Thuthukani) Cloud Services. You may select Cloud Services either on-line or through an Order Document Thuthukani provides. The Order Document you submit to Thuthukani will specify the Cloud Services and quantities selected, Thuthukani charges and other details of your order. The Order Document, the Service Description(s) (found at http://bit.ly/Mobile360-Service-Description,) for the selected Cloud Service(s) and this Agreement will constitute the complete agreement for the Cloud Services and will supersede any prior discussions or representations regarding the Cloud Services. Any reproduction of this Agreement made by reliable means is considered an original.
IF YOU REGISTER FOR A FREE EVALUATION FOR CLOUD SERVICES THIS AGREEMENT WILL ALSO GOVERN THAT FREE EVALUATION. YOU MAY OPT OUT OF AN EVALUATION AT ANY TIME BY SENDING NOTIFICATION TO ADMIN@MOBILE360.CO.ZA
BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THUTHUKANI’S PRIVACY AND ACCEPTABLE USE POLICIES, FOUND AT http://www.mobile360.com/about/privacy-and-legal/.
If you register on our website for a free evaluation, we will make one or more Cloud Services available to you on an evaluation basis free of charge until the earlier of (1) the end of the free evaluation period which is thirty (30) days unless otherwise agreed by the parties; or (b) the start date of any purchased Cloud Services ordered by you. Additional evaluation terms and conditions may appear on the evaluation registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. You may end an evaluation at any time by sending an email to email@example.com. During the evaluation, Thuthukani reserves the right to terminate this Agreement, and to terminate your access to the Cloud Services, with or without notice, at its sole discretion and at any time.
Service Performance and Commitments
When Thuthukani accepts your Order Document for a Cloud Service, Thuthukani will provide you the entitlements specified in the Order Document. You may access the Cloud Service from any location via a network connection. Cloud Services are designed to be available 24/7 subject to maintenance. You will be notified of scheduled maintenance. Service Level commitments, if applicable, are specified in the Service Description. In addition, some Cloud Services include entitlement to use enabling software on your machines. If applicable, descriptions and details of the software and permitted use granted by Thuthukani or third parties will be included in the Service Description.
You may access and use each Cloud Service that you order only to the extent of entitlements acquired by you. You are responsible for use of Cloud Services by any party who accesses the Service with your account credentials.
Thuthukani does not authorize use of any Cloud Service for any unlawful or inappropriate purposes, such as gambling, obscenity, pornography, violence, misappropriation, unauthorized access or interference, viruses or harmful code, harassment, unsolicited or deceptive messages, or evading filters. Any such use is prohibited. Unless expressly provided in this Agreement, you are not authorized to use the Cloud Services to provide hosting or timesharing services to any third party.
Integration, Configuration and Custom Services
Thuthukani may offer additional standard customization and configuration Services. Such Services are detailed in an additional Service Description and may be ordered pursuant to the Order Document. At your request, Thuthukani may perform additional custom services, as specified in a mutually agreed Statement of Work.
Confidentiality and Data Protection
Each Cloud Service is designed to protect the proprietary content that you input into the Cloud Service and to provide for access and use of such content only in accordance with the provision of the Cloud Service. Except as otherwise specified in a Service Description, Cloud Services limit access and use of your proprietary content to Thuthukani employees and contractors as needed to deliver the Cloud Service. Thuthukani will not disclose your proprietary content, and will return or destroy your content upon the expiration or cancellation of the Cloud Service, or earlier upon your request. Thuthukani reserves the right to charge for certain activities performed at your request or direction (such as delivering content in a specific format).
The Service Description for each Cloud Service describes the security functions and features applicable to the Cloud Service. Thuthukani agrees to provide you notice of any unauthorized third party access to your content of which we become aware and to provide reasonable efforts to remediate identified security vulnerabilities. If your content is lost or damaged, Thuthukani will assist you in restoring the content to the Cloud Service from your last available back up copy in compatible format.
Some of your content or other data may be subject to governmental regulation or otherwise may require security measures beyond those specified by Thuthukani for the Cloud Service. You agree not to input such content in the Cloud Services or to otherwise provide such data in conjunction with other Services unless we have first agreed in writing to provide additional required security measures. You are responsible for all necessary permissions to include the content in the Cloud Service and you grant Thuthukani permission to use, store and process the content in the delivery of the Cloud Services.
Charges, Payments & Taxes
You agree to pay all applicable charges for a Service as set forth in the Agreement and any charges for use in excess of entitlements, any custom, duty, tax, levy or fee imposed by any authority resulting from your purchase or use of a Service, and any late payment fees. Unless specified otherwise in an Order Document, amounts are due upon receipt of the invoice and payable electronically within 30 days of the invoice date to an account specified by Thuthukani in South African Rand or United States Dollars.
Thuthukani may modify the computing environment used to provide a Cloud Service, provided that such change does not degrade the functionality or the security features of the Cloud Service. Other changes to the Service Description made by IBM will not apply until any agreed renewal or extension.
Term, Termination, Suspension
The term of a Cloud Service is described in the Service Description or Order Document. Any renewal terms for a Cloud Service will be as otherwise specified in the Service Description or Order. Thuthukani may withdraw a Cloud Service on 12 months’ notice, or as specified in the Service Description and Thuthukani will either continue to provide the Cloud Service for the remainder of your unexpired term or work with you to migrate to another Cloud Service. Fiberlink may suspend, revoke or limit use of a Cloud Service if in Thuthukani’s sole discretion there is a breach of security, breach of your obligations under the Agreement or violation of law. Charges will continue to accrue for the Cloud Service during any suspension. If the cause of the suspension is reasonably capable of being remedied, Thuthukani will provide you notice of what actions you must take to reinstate the Cloud Service. If you fail to take such actions within a reasonable time, Thuthukani may terminate the Cloud Service.
Liability and Indemnity
Thuthukani’s entire liability for all claims in the aggregate arising from your use of a Cloud Service acquired hereunder will not exceed the amount of any actual direct damages up to the amounts paid in the prior 12 months for the Cloud Service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to Thuthukani, its corporate parent, subsidiaries and contractors. Thuthukani will not be liable for special, incidental, exemplary, indirect or economic consequential damages, lost profits, business, revenue, goodwill, or anticipated savings.
Thuthukani reserves the right to modify or replace the Service with an equivalent non-infringing one or, if replacement is not reasonably available, to discontinue the Cloud Service and provide a credit for any pre-paid unexpired term. Thuthukani has no liability for claims that include, in whole or part, items not provided by Thuthukani. You are responsible for any violation of law or any third party rights caused by your content or, except as provided in this paragraph, your use of the Service.
Warranties and Disclaimers
Thuthukani warrants it will provide the Cloud Service using commercially reasonable care and skill in accordance with the Services Description. The warranty period is the term of the Service.
THUTHUKANI DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF A CLOUD SERVICE. THESE WARRANTIES ARE THE EXCLUSIVE WARRANTIES FROM THUTHUKANI. THEY REPLACE ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Compliance with Laws
Each party remains responsible for complying with laws, rules and regulations applicable to its business, use of a Cloud Service, and content, including applicable export and import laws. The laws of the Republic of South Africa shall govern the terms of this Agreement. All rights, duties, and obligations are subject to the courts of South Africa.
Thuthukani may use global resources (personnel and resources in locations worldwide) and third party suppliers to support the delivery of Cloud Services. Assignment of this Agreement and the rights and obligations under it, including entitlements to the Cloud Service, is not permitted except to a subsidiary or to a successor organization by merger or acquisition. Thuthukani may assign to a corporate parent, affiliate, subsidiary, or to a successor organization by merger or acquisition.