Terms of Service – PortKey Solutions (Pty) Ltd

GENERAL

1. Order, Acceptance and Service.

1. When Accepted by PortKey Solutions (Pty) Ltd, the Order submitted by Customer creates a contract between Customer and PortKey Solutions (Pty) Ltd, consisting of the Order, the applicable Service Description and these Terms of Service. An Order is “Accepted” by PortKey Solutions (Pty) Ltd when (i) with respect to Orders submitted online, PortKey Solutions (Pty) Ltd provides Services in response to the Order or bills the Customer for payment and (ii) with respect to Orders reduced to writing and signed on an approved PortKey Solutions (Pty) Ltd form, when an authorized representative of PortKey Solutions (Pty) Ltd executes and delivers such form signed by Customer.

2. PortKey Solutions (Pty) Ltd will provide, and the Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the “Service Fees”).

3. In connection with any Hosting Services, the Customer will not use storage space in excess of the storage limits established for the Services in the Service Descriptions, plus any storage space purchased by the Customer. If the Customer uses storage space in excess of such amounts, PortKey Solutions (Pty) Ltd may, without limiting its other rights or remedies, assess the Customer with additional fees.

4. In connection with any Hosting Services, if the Customer’s actual bandwidth usage in any month exceeds the limit in the Service Description, the Customer will pay PortKey Solutions (Pty) Ltd such additional fees as may be specified in the Service Description.

2. Fees, Taxes and Payment.

The Customer will pay to PortKey Solutions (Pty) Ltd the Service Fees in the manner set forth in the Order. PortKey Solutions (Pty) Ltd may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on PortKey Solutions (Pty) Ltd’ net income). All such taxes will be added to PortKey Solutions (Pty) Ltd’ invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. If any invoice is not paid within 30 days after the date of the invoice, PortKey Solutions (Pty) Ltd may suspend such overdue accounts and assess a fee for account reactivation; in addition any amounts payable to PortKey Solutions (Pty) Ltd not paid when due will bear interest at the rate of two percent (2.00%) per month or the maximum rate permitted by applicable law, whichever is less. If PortKey Solutions (Pty) Ltd collects any payment due at law or through an attorney at law or under advice there-from or through a collection agency, or if PortKey Solutions (Pty) Ltd prevails in any action to which the Customer and PortKey Solutions (Pty) Ltd are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and PortKey Solutions (Pty) Ltd’ reasonable attorneys’ fees. If any cheque is returned for insufficient funds PortKey Solutions (Pty) Ltd may impose a processing charge of R125.00

3. Term and Termination.

1. Hosting Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one month periods or other previously agreed upon term unless the Order is earlier terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 60 days prior to expiration of the then-current term.

2. Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.

3. PortKey Solutions (Pty) Ltd may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving the Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to the Customer, if PortKey Solutions (Pty) Ltd determines in good faith that the Customer’s use of the Customer Web site or the Customer Content violates the Acceptable Use Policy.

4. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which PortKey Solutions (Pty) Ltd may be entitled.

5. Within 30 days after the termination of this Agreement, the Customer will pay the Termination Charge to PortKey Solutions (Pty) Ltd unless (i) PortKey Solutions (Pty) Ltd terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). The parties agree that the Termination Charge constitutes consideration for PortKey Solutions (Pty) Ltd’ time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If the Customer terminates the Order in accordance with Section 3(b), or if PortKey Solutions (Pty) Ltd terminates the Order under Sections 3(c)(i) or 12(c), PortKey Solutions (Pty) Ltd shall return to the Customer, and the Customer shall accept, as the Customer’s sole and exclusive remedy for PortKey Solutions (Pty) Ltd’ breach of the Order, any Service Fees paid in advance by the Customer hereunder attributable to Services not yet rendered as of the date of termination.

4. Customer’s Representations and Warranties.

Customer hereby represents and warrants to PortKey Solutions (Pty) Ltd, and agrees that during the Term the Customer will ensure that: (a) the Customer is the owner or valid licensee of the Customer Content and each element thereof, and the Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by PortKey Solutions (Pty) Ltd to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and (e) Customer will use the Services only for business purposes and not for any family, household or personal use.

5. License to PortKey Solutions (Pty) Ltd.

Customer hereby grants to PortKey Solutions (Pty) Ltd a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content and the Customer Web site. Except for the rights expressly granted above, PortKey Solutions (Pty) Ltd is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with the Customer.

6. PortKey Solutions (Pty) Ltd’ Acceptable Use Policy.

Customer will abide by, and utilize the Services and the Customer Web site only in accordance with, the Acceptable Use Policy (the “Acceptable Use Policy”) that PortKey Solutions (Pty) Ltd posts on its Web site, as such Acceptable Use Policy may be changed by PortKey Solutions (Pty) Ltd from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access PortKey Solutions (Pty) Ltd’ Web site to determine if PortKey Solutions (Pty) Ltd has made any changes thereto.

7. Customer’s Responsibilities.

1. Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Website.

2. Customer will cooperate fully with PortKey Solutions (Pty) Ltd in connection with PortKey Solutions (Pty) Ltd’s performance of the Services. Customer must provide any equipment or software that may be necessary for the Customer to use the Services. Delays in the Customer’s performance of its obligations under this Agreement will extend the time for PortKey Solutions (Pty) Ltd’ performance of its obligations that depend on the Customer’s performance on a day for day basis. Customer will notify PortKey Solutions (Pty) Ltd of any change in the Customer’s mailing address, telephone, e-mail or other contact information.

3. Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.

4. Because the Hosting Services permit the Customer to electronically transmit or upload content directly to the Customer Web site, the Customer shall be fully responsible for uploading all content to the Customer Website and supplementing, modifying and updating the Customer Web site. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by PortKey Solutions (Pty) Ltd to provide the Hosting Services, as the same may be changed by PortKey Solutions (Pty) Ltd from time to time. Specifications for the hardware and software used by PortKey Solutions (Pty) Ltd to provide the Hosting Services will be available on PortKey Solutions (Pty) Ltd’s Web site. Customer shall periodically access PortKey Solutions (Pty) Ltd’s Web site to determine if PortKey Solutions (Pty) Ltd has made any changes thereto. PortKey Solutions (Pty) Ltd shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by PortKey Solutions (Pty) Ltd to provide the Hosting Services.

5. Unless the applicable Service Description provides otherwise, the Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.

8. PortKey Solutions (Pty) Ltd Intellectual Property.

1. PortKey Solutions (Pty) Ltd hereby grants to the Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable PortKey Solutions (Pty) Ltd Technology solely for the purpose of accessing and using the Services. Customer may not use the PortKey Solutions (Pty) Ltd Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from PortKey Solutions (Pty) Ltd to the Customer any PortKey Solutions (Pty) Ltd Technology, and all rights, titles and interests in and to the PortKey Solutions (Pty) Ltd Technology shall remain solely with PortKey Solutions (Pty) Ltd. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the PortKey Solutions (Pty) Ltd Technology.

2. PortKey Solutions (Pty) Ltd’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of PortKey Solutions (Pty) Ltd. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of PortKey Solutions (Pty) Ltd. PortKey Solutions (Pty) Ltd shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by PortKey Solutions (Pty) Ltd to the Customer. PortKey Solutions (Pty) Ltd may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

3. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which the Customer sends to PortKey Solutions (Pty) Ltd relating to the Services will be treated as being non-confidential and non-proprietary. PortKey Solutions (Pty) Ltd may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

9. Limited Warranty.

1. PortKey Solutions (Pty) Ltd represents and warrants to the Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by PortKey Solutions (Pty) Ltd generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless the Customer notifies PortKey Solutions (Pty) Ltd within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and PortKey Solutions (Pty) Ltd’ sole obligation, for breach of the foregoing warranties shall be for PortKey Solutions (Pty) Ltd, at its option, to re-perform the defective Services at no cost to the Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue the Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. PortKey Solutions (Pty) Ltd may provision the Services from any of its data centres and may from time to time re-provision the Services from different data centres.

2. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of PortKey Solutions (Pty) Ltd’s reasonable control; (ii) that resulted from any actions or inactions of the Customer or any third parties; or (iii) that resulted from the Customer’s equipment or any third-party equipment not within the sole control of PortKey Solutions (Pty) Ltd.

3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, PORTKEY SOLUTIONS (PTY) LTD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND PORTKEY SOLUTIONS (PTY) LTD HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO THE CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. PORTKEY SOLUTIONS (PTY) LTD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

10. Limitation of Liability.

1. IN NO EVENT WILL PORTKEY SOLUTIONS (PTY) LTD’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO PORTKEY SOLUTIONS (PTY) LTD BY THE CUSTOMER DURING THE LEASE PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

2. PORTKEY SOLUTIONS (PTY) LTD CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. PORTKEY SOLUTIONS (PTY) LTD WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

4. The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or wilful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party’s breach of Section 13 or to the Customer’s indemnification obligations under Section 11.

11. Indemnification of PortKey Solutions (Pty) Ltd.

Customer shall defend, indemnify and hold harmless PortKey Solutions (Pty) Ltd, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “PortKey Solutions (Pty) Ltd Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the PortKey Solutions (Pty) Ltd Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer Web site or any End User’s use of the Customer Content or the Customer Web site, (iii) violation by the Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Customer’s domain names, the Customer Web site, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by PortKey Solutions (Pty) Ltd, (v) claims or actions by third parties relating to or arising out of the Customer’s use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware or software used by PortKey Solutions (Pty) Ltd to provide the Services, including any damage to PortKey Solutions (Pty) Ltd’ servers or other hardware caused thereby.

12. Indemnification of Customer.

1. Subject to Section 10, PortKey Solutions (Pty) Ltd shall, at its own expense, indemnify, defend and hold the Customer harmless from any claim or suit alleging that the Services infringe any South African patent, copyright or trademark existing on the Effective Date, or that PortKey Solutions (Pty) Ltd has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist PortKey Solutions (Pty) Ltd in the defence or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by PortKey Solutions (Pty) Ltd, but PortKey Solutions (Pty) Ltd will not be liable for any costs or expenses incurred without its prior written authorization.

2. Promptly after receipt by the Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which the Customer may be indemnified hereunder, the Customer shall give written notice thereof to PortKey Solutions (Pty) Ltd, provided that failure to give or delay in giving such notice to PortKey Solutions (Pty) Ltd shall not relieve PortKey Solutions (Pty) Ltd of any liability it may have to the Customer hereunder, except to the extent that the defence of such claim or suit is prejudiced thereby. PortKey Solutions (Pty) Ltd shall have sole control of the defence, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, the Customer may participate in the defence of any such claim or suit at the Customer’s own expense.

3. If an injunction, decree or judgement is, or PortKey Solutions (Pty) Ltd believes in its sole discretion is likely to be, entered providing that the Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, PortKey Solutions (Pty) Ltd may, at its sole option and expense, either (i) procure for the Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to the Customer.

4. Notwithstanding Section 12(a), PortKey Solutions (Pty) Ltd assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by PortKey Solutions (Pty) Ltd in writing, (iii) the Customer Content, the Customer Web site or any content, data or information provided or supplied by an End User, or (iv) Customer’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF PORTKEY SOLUTIONS (PTY) LTD, AND THE EXCLUSIVE REMEDY OF THE CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.

13. Confidentiality; Non-Solicitation.

1. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.

2. Notwithstanding Section 13(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

3. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.

4. During the term of this Agreement and for two years following expiration or termination of this Agreement, the Customer will not, directly or indirectly, solicit or recruit the services of any employee of PortKey Solutions (Pty) Ltd performing services under this Agreement, while such employee is employed by PortKey Solutions (Pty) Ltd and for a period of six months after such employee has left the employment of PortKey Solutions (Pty) Ltd.

14. Optional Services.

In connection with any Optional Services:

1. Customer must provide PortKey Solutions (Pty) Ltd with any information, login identifications, passwords or other information or access to facilities that PortKey Solutions (Pty) Ltd may reasonably require to provide the Optional Services PortKey Solutions (Pty) Ltd will have no responsibility for any delays or increased costs or expenses associated with the Customer’s failure to provide any of such information. If the Customer does not provide any such information or access requested by PortKey Solutions (Pty) Ltd within fifteen (15) days of PortKey Solutions (Pty) Ltd’ request therefore, PortKey Solutions (Pty) Ltd may terminate the Order and retain any Service Fees paid.

2. If Customer requested that PortKey Solutions (Pty) Ltd perform the Optional Services by a particular deadline or that PortKey Solutions (Pty) Ltd achieve some particular result or outcome, PortKey Solutions (Pty) Ltd will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by the Customer; provided, however, that (i) PortKey Solutions (Pty) Ltd’s ability to perform the Services is subject to the Customer’s provision of information and access as provided above and (ii) PortKey Solutions (Pty) Ltd has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.

3. If the Customer wishes to convey documents or files to PortKey Solutions (Pty) Ltd, the Customer should deliver to PortKey Solutions (Pty) Ltd a copy or duplicate of such documents or files and not the original copy. PortKey Solutions (Pty) Ltd will not return to the Customer any documents or files conveyed to PortKey Solutions (Pty) Ltd.

4. PortKey Solutions (Pty) Ltd will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with PortKey Solutions (Pty) Ltd’ provision of Optional Services requested by the Customer.

15. Miscellaneous.

1. Independent Contractor. PortKey Solutions (Pty) Ltd and the Customer are independent contractors and nothing contained in this Agreement places PortKey Solutions (Pty) Ltd and the Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

2. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of South Africa.

3. Headings. The headings herein are for convenience only and are not part of this Agreement.

4. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of the Customer or PortKey Solutions (Pty) Ltd, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of the Customer and PortKey Solutions (Pty) Ltd. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by PortKey Solutions (Pty) Ltd in its sole discretion, which modifications will be effective upon posting to PortKey Solutions (Pty) Ltd’s website.

6. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

7. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. PortKey Solutions (Pty) Ltd may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in PortKey Solutions (Pty) Ltd’ billing records.

8. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

9. Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of PortKey Solutions (Pty) Ltd. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. PortKey Solutions (Pty) Ltd may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of the Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

10. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

11. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, PortKey Solutions (Pty) Ltd’ records of such execution shall be presumed accurate unless proven otherwise.

12. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labour disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

13. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, the Customer acknowledges and agrees that any supplier or third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against the Customer as if it were a party to this Agreement.

14. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside South Africa in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the South African government and any country or organization of nations within whose jurisdiction the Customer operates or does business.

15. Marketing. Customer agrees that during the term of this Agreement PortKey Solutions (Pty) Ltd may publicly refer to the Customer, orally and in writing, as a customer of PortKey Solutions (Pty) Ltd. Any other public reference to the Customer by PortKey Solutions (Pty) Ltd requires the written consent of Customer.

16. Definitions.

For purposes of this Agreement, the following terms have the meanings specified below:

1. “Agreement” means each contract created between PortKey Solutions (Pty) Ltd and the Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.

2. “Customer Content” means all data, graphics, text, names, marks, logos, hypertext links to other Web sites and other information incorporated in, transmitted through or published or displayed on the Customer Web site.

3. “Customer Website” means the Customer’s site on the World Wide Web portion of the Internet that PortKey Solutions (Pty) Ltd hosts under this Agreement.
4. “End User” means any Person who accesses or uses the Customer Website via the Internet.

5. “PortKey Solutions (Pty) Ltd Technology” means PortKey Solutions (Pty) Ltd’ proprietary technology, including, without limitation, PortKey Solutions (Pty) Ltd services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by PortKey Solutions (Pty) Ltd or licensed to PortKey Solutions (Pty) Ltd from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of PortKey Solutions (Pty) Ltd Technology conceived, reduced to practice or developed during the term of this Agreement by either party.

6. “Person” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.

7. “Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.

8. “Order” means the Order submitted by the Customer to PortKey Solutions (Pty) Ltd for Services, whether such Order is submitted online through PortKey Solutions (Pty) Ltd’s Web site or on a written Order form.

9. “Prepaid Plan” means Hosting Service provided by PortKey Solutions (Pty) Ltd to the Customer where the Order provides that the Customer must pay for the Hosting Service in advance for the Initial Term. “Non-Prepaid Plan” means any Hosting Service provided by PortKey Solutions (Pty) Ltd to the Customer that is not a Prepaid Plan.

10. “Termination Charge” means, with respect to Non-Prepaid Customers only, as of any date of calculation, an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term.

11. “Terms of Service” means these Terms of Service, as the same may be modified, altered or amended from time to time by PortKey Solutions (Pty) Ltd.

12. “Service” means either Hosting Service or Optional Service. “Hosting Service” means the Service provided by PortKey Solutions (Pty) Ltd in response to an Order whereby PortKey Solutions (Pty) Ltd provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer Web site as more particularly described in the applicable Service Description. “Optional Service” means any additional Service (other than Hosting Service) PortKey Solutions (Pty) Ltd may provide in response to an Order, as more particularly described in the applicable Service Description.

13. “Service Description” means the applicable documents made available by PortKey Solutions (Pty) Ltd to the Customer to describe the applicable Services at the time the Order is accepted by PortKey Solutions (Pty) Ltd.

14. “Term” means the duration of any Agreement between PortKey Solutions (Pty) Ltd and the Customer. With respect to Hosting Services, the “Initial Term” is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 3. With respect to Optional Services, the “Term” begins when PortKey Solutions (Pty) Ltd accepts the Order and ends on the first to occur of (i) PortKey Solutions (Pty) Ltd’ completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.

PORTKEY SOLUTIONS (PTY) LTD  – Conditions of Supply for Printed Artwork

  1. Scope of the Terms and Conditions

    1.1. This page (together with the documents expressly referred to on it) tells you (Customer) information about us (PORTKEY SOLUTIONS (PTY) LTD and the legal terms and conditions (Terms) on which PORTKEY SOLUTIONS (PTY) LTD supplies any of the printed products (Products) listed on the website or via paper or via any other digital means.

    1.2. These Terms will apply to any contracts between PORTKEY SOLUTIONS (PTY) LTD and Customer for the sale of Printed Products to the exclusion of any other terms that Customer seeks to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing (except where PORTKEY SOLUTIONS (PTY) LTD has given its prior written consent). Any further correspondence between PORTKEY SOLUTIONS (PTY) LTD and Customer, will have no impact on the Terms of the contract.

    1.3. To the extent there is any inconsistency between the provisions of these Terms and the provisions of any other documents issued by PORTKEY SOLUTIONS (PTY) LTD which are contained on the Website or otherwise made available to Customer, the provisions of these Terms shall prevail.

    1.4. Customer should read these Terms carefully and make sure it understands them before ordering any Printed Products through PORTKEY SOLUTIONS (PTY) LTD. Please note that before placing an order, Customer will be asked to agree to these Terms. Customer should print a copy of these Terms for future reference.

    1.5. PORTKEY SOLUTIONS (PTY) LTD may amend these Terms from time to time. Every time Customer wishes to order Products, it should check these Terms to ensure it understands the terms which will apply at that time. These Terms were most recently updated in February 2017.

    2. Information about PORTKEY SOLUTIONS (PTY) LTD

    2.1. PORTKEY SOLUTIONS (PTY) LTD is a company registered in South Africa under company number 2015/411412/07 with its registered office at 24B Woodpecker Crescent, Jeffreys Bay, 6332 South Africa. PORTKEY SOLUTIONS (PTY) LTD main trading address is 24B Woodpecker Crescent, Jeffreys Bay, 6332 South Africa.

    2.2. To contact PORTKEY SOLUTIONS (PTY) LTD, please refer to the contact page.

    3. How the Contract is formed between PORTKEY SOLUTIONS (PTY) LTD and Customer

    3.1. PORTKEY SOLUTIONS (PTY) LTD order process allows Customer to check and amend any errors before submitting an order. Customers should take the time to read and check all orders at each stage of the order process.

    3.4. After Customer places an order, Customer will receive an order confirmation from PORTKEY SOLUTIONS (PTY) LTD with a summary of the order. However, this does not mean that the order has been accepted. PORTKEY SOLUTIONS (PTY) LTD acceptance of the order will take place as described in condition 3.5.

    3.5. The Contract between Customer and PORTKEY SOLUTIONS (PTY) LTD shall only be concluded after the Print-Ready or Approved (by the Customer) Artwork (defined in condition 5.1 below) has been transmitted by Customer and PORTKEY SOLUTIONS (PTY) LTD has sent a separate order confirmation via e-mail (Acceptance of Order). PORTKEY SOLUTIONS (PTY) LTD will send the Confirmation via e-mail within five days after receiving the Artwork.

    3.6. The application of the UN Sales Convention on the International Sale of Goods (CISG) shall not apply to the Contract.

    4. Status of Customer

    4.1. For the purposes of these Terms, Customer shall be deemed to be purchasing as a business if it enters into the Contract, and/or it is purchasing Products which are not of a type ordinarily supplied for private use or consumption.

    4.2. If Customer is purchasing as a consumer:

    4.2.1. Customer may only purchase Products through PORTKEY SOLUTIONS (PTY) LTD if the Website if Customer is at least 18 years old; and
    4.2.2. Customer has legal rights in relation to any Products that are faulty or not as described. Customer can obtain advice about their legal rights from the Western Cape Office of the Consumer Protector. Nothing in these Terms will affect these legal rights

    4.3. If Customer is purchasing as a business:

    4.3.1. Customer confirms it has the authority to enter into binding agreements with companies such as PORTKEY SOLUTIONS (PTY) LTD.; and

    4.3.2. Customer acknowledges and agrees that these Terms and any document expressly referred to in them constitute the entire agreement between PORTKEY SOLUTIONS (PTY) LTD and Customer. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of PORTKEY SOLUTIONS (PTY) LTD which is not set out in these Terms or any document expressly referred to in them.

    5. Content of the Order and Proof Requirements

    5.1. All orders placed are solely on the basis of print data and information (Artwork) submitted by Customer. Customer must ensure it has read and understood its responsibilities contained in these Terms and which are set out in more detail on the Customer Information page and Artwork guide.

    5.2. Customer must check the Artwork carefully against the Format Requirements before submitting to PORTKEY SOLUTIONS (PTY) LTD. PORTKEY SOLUTIONS (PTY) LTD will not review any Artwork for compliance with the Format Requirements or otherwise for any typographical errors.

    5.3. When PORTKEY SOLUTIONS (PTY) LTD has received the Artwork from Customer, PORTKEY SOLUTIONS (PTY) LTD will perform a ‘Standard Artwork Check’ on every order submitted by Customer. The extent to which PORTKEY SOLUTIONS (PTY) LTD checks the Artwork is detailed on the Customer Information page.

    5.4. PORTKEY SOLUTIONS (PTY) LTD will provide proofs of the Product. The first two proofs will be at no extra cost, but from the third proof onwards, a fee of R80 per proof will be charged.

    5.5.Where PORTKEY SOLUTIONS (PTY) LTD has supplied a proof for Customer, Customer acknowledges and accepts that such proof is merely illustrative of the final product to be produced by PORTKEY SOLUTIONS (PTY) LTD and PORTKEY SOLUTIONS (PTY) LTD shall have no liability to Customer for slight variations in the final Product from the proof supplied.

    5.6.Where PORTKEY SOLUTIONS (PTY) LTD has supplied a proof for Customer pursuant to performing a Superior Artwork Check or Proof on the Artwork, Customer acknowledges and accepts that such proof is merely illustrative of the final product to be ordered through PORTKEY SOLUTIONS (PTY) LTD and PORTKEY SOLUTIONS (PTY) LTD shall have no liability to Customer for slight variations in the final Product from the proof supplied.

    5.7. If during the Standard Artwork Check PORTKEY SOLUTIONS (PTY) LTD discovers that the Artwork supplied by Customer is defective or does not comply with the Format Requirements, PORTKEY SOLUTIONS (PTY) LTD will notify Customer and request Customer provides corrected Artwork.

    5.8. In the event that Customer notifies PORTKEY SOLUTIONS (PTY) LTD that it wishes to proceed with the order without correcting any defects in the Artwork, or amending such Artwork so it complies with the Format Requirements, Customer does so at its own risk.

    5.9. If additional costs arise due to the inaccuracy of the Artwork, these will be borne by the Customer.

    5.10. Where Customer has not submitted Artwork in CMYK mode in accordance with the Format Requirements, PORTKEY SOLUTIONS (PTY) LTD shall be entitled to convert the Artwork to ensure it complies with the Format Requirements. In these circumstances, the liability for any resulting colour deviations lies solely with the Customer. By transmitting the Artwork in any other mode than the specified CMYK mode, the Customer acknowledges and agrees that the conversion is carried out at Customer’s own risk.

    5.11. For the avoidance of doubt, PORTKEY SOLUTIONS (PTY) LTD will not accept any responsibility or liability for any colour variations, irregularities or other defects whatsoever of the Products ordered by Customer which are caused as a result of Artwork not complying with the Format Requirements, including (but not limited to) graphics and images, colours and colour mode, cut, fonts and lines.

    5.12. PORTKEY SOLUTIONS (PTY) LTD reserves the right to refuse any orders and/or terminate any Contracts where the transmitted Artwork contains defamatory, pornographic, fascist, radical content or any other material which is obscene, offensive, hateful or inflammatory.

    5.13. After the Contract is formed, Customer shall only be entitled to make changes to the order provided Customer remains liable for any additional costs incurred by PORTKEY SOLUTIONS (PTY) LTD in making such changes.

    6. Rights of revocation and exclusions to revocation in consumer contracts

    6.1. Right of revocation for delivery of goods (single or multiple orders) not manufactured according to customer specifications and delivered in one (or more) consignments.

    Revocation policy

    You have the right to revoke this contract within 14 days without giving reasons.

    The revocation period shall be 14 days from the day on which you or a third party nominated by you who is not the carrier took possession of the goods.

    To exercise your right of revocation, you must inform us

PortKey Solutions (PTY) Ltd,
24B Woodpecker Crescent,
Jeffreys Bay,
6332,
South Africa

by means of a clear statement (e.g. a letter sent by post, fax or email etc.) regarding your decision to revoke this contract.
To observe the revocation period it shall be sufficient for you to send the notification of the exercising of the right of revocation before the expiry of the revocation period.

Consequences of revocation

If you revoke this contract, we shall refund you all payments that we have received from you, including delivery costs (with the exception of the additional costs arising from the fact that you chose a type of delivery other than the reasonable standard delivery offered by us), immediately and no later than within 14 days of the date on which we received the notice of revocation of this contract. We shall effect this repayment by bank transfer only. Under no circumstances will you be charged any bank charges for this repayment. We may withhold the repayment until we have received the goods back or until you have provided proof that you have sent the goods back, whichever is the earlier.

You must send back or transfer the goods immediately and in all cases no later than 14 days from the date on which you notify us of the revocation of this contract. This deadline shall be considered met if you send the goods before the expiry of the period of 14 days. We shall bear the costs of returning the goods by arranging for pickup from you by our nominated courier. You shall pay for any diminished value of the goods only if this diminished value is attributable to your handling of the goods in any way other than what is necessary to ascertain the quality, nature and functioning of these.

Special Note

Your right of revocation shall expire prematurely if at your express request we start the execution of the contract before the expiry of the revocation period.

6.2. Right of revocation for delivery of multiple goods not manufactured according to customer specifications and delivered in multiple consignments

6.3. If the printed materials are produced through PORTKEY SOLUTIONS (PTY) LTD according to customer specifications, no legal right of revocation shall exist. No contractual right of revocation is granted.

The right of revocation shall not exist for distance sales contracts
– for the supply of goods which are not prefabricated and the production of which is determined by an individual choice or decision of the consumer or which are clearly tailored to the personal needs of the consumer.

7. Communication

7.1. Applicable laws require that some of the information or communications PORTKEY SOLUTIONS (PTY) LTD send to Customer should be in permanent form and for this purpose, PORTKEY SOLUTIONS (PTY) LTD shall confirm such information to Customer by email, which Customer accepts is a permanent form of communication.

7.2. When ordering products through PORTKEY SOLUTIONS (PTY) LTD, Customer shall provide an e-mail address for communications between PORTKEY SOLUTIONS (PTY) LTD and Customer. Customer shall ensure such email address is valid and functioning. In particular, Customer shall ensure that the settings of the spam filter on its e-mail account allows the receipt by Customer of e-mails sent by PORTKEY SOLUTIONS (PTY) LTD.

7.3. In the case of Customers purchasing as a business:

7.3.1. Customer acknowledges and agrees that this e-mail address shall be stored by PORTKEY SOLUTIONS (PTY) LTD and used in respect of any future orders received from the Customer until revoked or modified by the Customer;
7.3.2. any notice or communication sent by PORTKEY SOLUTIONS (PTY) LTD to Customer, or by Customer to PORTKEY SOLUTIONS (PTY) LTD will be deemed received and properly served 24 hours after an e-mail is sent, or in the case of letter, three days after the date of posting.

8. Price of the Products and Delivery Charges

8.1. PORTKEY SOLUTIONS (PTY) LTD takes all reasonable care to ensure that the prices of Products are correct at the time of quotation and ordering. However, if PORTKEY SOLUTIONS (PTY) LTD discovers an error in the price of Products(s) ordered by Customer, condition 8.4 will apply.

8.2. Prices for the Products may change from time to time, but changes will not affect any order which PORTKEY SOLUTIONS (PTY) LTD has confirmed with an Order Confirmation.

8.3. The price of the Products includes packaging and delivery charges but excludes shipping insurance.

8.4. The Website and written quotations can contain a large number of Products. It is always possible that, despite PORTKEY SOLUTIONS (PTY) LTD best efforts, some of the Products on the Website or other printed or digital marketing material may be incorrectly priced. If PORTKEY SOLUTIONS (PTY) LTD discover an error in the price of the Products Customer has ordered, PORTKEY SOLUTIONS (PTY) LTD will inform Customer of this error and PORTKEY SOLUTIONS (PTY) LTD will give Customer the option of continuing to purchase the Product at the correct price or cancelling the order. PORTKEY SOLUTIONS (PTY) LTD will not process Customer’s order until it has received Customer’s instructions. If PORTKEY SOLUTIONS (PTY) LTD is unable to contact Customer using the contact details Customer provided during the order process, PORTKEY SOLUTIONS (PTY) LTD will treat the order as cancelled and notify Customer in writing. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by Customer as a mispricing, PORTKEY SOLUTIONS (PTY) LTD do not have to provide the Products to Customer at the incorrect (lower) price.

8.6. The Customer will be charged additionally for any subsequent changes requested by the Customer, including if this request results in machine downtime or additional production costs in the event of a complete or partial cancellation (except if the cancellation is pursuant to the consumer’s rights under condition 6). Additional charges are also payable if Customer requests repeated samples due to a slight deviation from the template.

8.7. Where Customer orders more than two proofs, this shall be subject to an additional fee in accordance with condition 5.4 of these Terms.

8.8. If Customer obtains a quotation for Products from PORTKEY SOLUTIONS (PTY) LTD either by e-mail or through the Website, this does not constitute an offer by PORTKEY SOLUTIONS (PTY) LTD and shall only be valid for a period of 7 days from its date of issue. All quotations are subject to the condition that the order details underlying the quotation at the time of issue remain unchanged, and Artwork to be received from Customer is received within one week of Customer placing the order.

8.9. All prices quoted are for one artwork only and print runs can not be split into multiple artworks / designs.

9. VAT

9.1. The price of the Products automatically includes VAT (if any, which shall be at the sole discretion of WEBPRINTER (PTY) LTD) at the applicable current rate chargeable in the South Africa. However, if the rate of VAT changes between the date of the order and the date of delivery, PORTKEY SOLUTIONS (PTY) LTD will adjust the VAT payable by Customer, unless Customer has already paid for the Products in full before the change in VAT takes effect.

9.2. If Customer believes that the Product it has purchased should be zero rated for VAT purposes, Customer shall notify PORTKEY SOLUTIONS (PTY) LTD immediately following receipt of the Order Confirmation and confirm the reasons for this. PORTKEY SOLUTIONS (PTY) LTD will investigate such claim and if it considers (acting reasonably) that such Product should be zero rated for VAT purposes, PORTKEY SOLUTIONS (PTY) LTD shall reimburse Customer for any overpayment made in respect of VAT.

9.3. Customers who are registered for VAT purposes must provide to PORTKEY SOLUTIONS (PTY) LTD a valid VAT registration number at the time of placing an order. PORTKEY SOLUTIONS (PTY) LTD is entitled to retain such information and apply this VAT registration number to any subsequent orders until PORTKEY SOLUTIONS (PTY) LTD is notified by Customer in writing that the VAT registration number is no longer valid.

10. Payment

10.1. Customer may pay for Products at the time of placing the order via EFT. Customers should note that PORTKEY SOLUTIONS (PTY) LTD shall not start production of the Products until payment has been received in full and print-ready or approved artwork has been supplied.

10.2. No other payment methods or terms shall apply unless expressly agreed with PORTKEY SOLUTIONS (PTY) LTD in writing.

10.3. PORTKEY SOLUTIONS (PTY) LTD shall issue a separate invoice for each Product ordered by Customer.

10.4. In the event that Customer makes a payment in error, it is the responsibility of Customer to notify PORTKEY SOLUTIONS (PTY) LTD and request PORTKEY SOLUTIONS (PTY) LTD reimburse such sum. Subject to confirmation by PORTKEY SOLUTIONS (PTY) LTD that it has received such overpayment, PORTKEY SOLUTIONS (PTY) LTD shall reimburse the sum to Customer. Where the repayment of any such sum by PORTKEY SOLUTIONS (PTY) LTD is subject to an additional charge, PORTKEY SOLUTIONS (PTY) LTD shall be entitled to deduct the amount of any charge from the sum to be reimbursed.

11. Delivery and Production

11.1. Delivery is based upon the production time taken by ordering through PORTKEY SOLUTIONS (PTY) LTD to manufacture the Products and the delivery time to ship the Products to Customer.

11.2. For areas where the external courier does daily deliveries, PORTKEY SOLUTIONS (PTY) LTD will ensure that the Products are delivered within 7 working days of production commencing. For all other areas, the delivery will be as soon as possible after Customer’s order has been accepted and PORTKEY SOLUTIONS (PTY) LTD has received confirmation of completion of production of the Products.

11.3. PORTKEY SOLUTIONS (PTY) LTD offers a cash back guarantee on delivery. Production time starts once payment and the printable data has been received and submitted to the third party printing company. For all orders where there is a daily delivery offered by the courier, if the order is not delivered within 7 working days of production commencing, PORTKEY SOLUTIONS (PTY) LTD will refund 100% of the cost of the order, in cash, to the customer. This does not apply to orders that need to be delivered in outlying areas where the courier only delivers on specific days of the week.

11.4. PORTKEY SOLUTIONS (PTY) LTD will advise Customer of the estimated date when the production of the Products shall be completed.

11.5. PORTKEY SOLUTIONS (PTY) LTD shall not commence production on the Products until it has received payment in full for the Products and it is in receipt of the final Artwork following the completion of any Standard Artwork Check or Proof. If everything is received before 11am on a working day, production starts the same day. If it is received after 11am, production starts the next working day. Working days are Monday to Friday only. PORTKEY SOLUTIONS (PTY) LTD guarantees delivery within 7 days of production commencing (remote areas excluded).

11.6. Delivery will be completed when PORTKEY SOLUTIONS (PTY) LTD’s third party printing company delivers the Products to the address given by Customer during the order process. If Customer selects their own carrier for delivery, delivery will be completed when PORTKEY SOLUTIONS (PTY) LTD ‘s third party printing company delivers the Products to Customer’s nominated carrier.

11.7. If Customer is not available at the delivery address, PORTKEY SOLUTIONS (PTY) LTD third party printing company’s chosen carrier (The Carrier) will leave a note that the Products have been returned to The Carrier’s premises and Customer must contact The Carrier to rearrange delivery. In circumstances where The Carrier has re-arranged delivery and Customer is not available at the delivery address on the agreed date and time to take delivery of the Products, The Carrier shall be entitled (at its discretion) to charge Customer for any additional costs reasonably incurred by The Carrier in attempting to re-deliver the Products.

11.8. The Products will be at the risk of the Customer from completion of delivery. Customer shall only own the Products once PORTKEY SOLUTIONS (PTY) LTD has received payment in full for the Products.

11.9. Delivery of the Products shall be performed during normal business hours, being Monday to Friday 8am to 6pm.

11.10. The delivery of prospectuses takes place on disposable pallets; shipment tracking is not possible in this case.

11.11. For the avoidance of doubt, PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier shall not be liable for any delay in delivery of the Products that is caused by an Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company, The Carrier or Customer’s failure to provide PORTKEY SOLUTIONS (PTY) LTD with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

12.. Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier

12.1. PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by an Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party print company or The Carrier. An Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier is defined below in condition 12.2.

12.2. An Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier means any act or event beyond PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier’s reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

12.3. If an Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD, PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier takes place that affects the performance of PORTKEY SOLUTIONS (PTY) LTD or The Carrier’s obligations under a Contract:

12.3.1. PORTKEY SOLUTIONS (PTY) LTD will notify Customer as soon as reasonably possible; and

12.3.2. PORTKEY SOLUTIONS (PTY) LTD obligations under a Contract will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD.

12.4. If the Event Outside the Control of PORTKEY SOLUTIONS (PTY) LTD. PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company or The Carrier extends beyond four weeks, Customer shall be entitled to cancel the Contract.

13. Warranty

13.1. Where Customer’s Products arrive in a damaged or defective condition, or Customer claims the Products are not as described, Customer must notify PORTKEY SOLUTIONS (PTY) LTD immediately and, in any event, no later than 14 days following delivery of the Products. Subject to Customer giving PORTKEY SOLUTIONS (PTY) LTD a reasonable opportunity of examining such Products by the nominated printing company, and Customer (if asked to do so by PORTKEY SOLUTIONS (PTY) LTD) returning such Products to PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company at PORTKEY SOLUTIONS (PTY) LTD’s third party printing company’s cost, PORTKEY SOLUTIONS (PTY) LTD will provide a full refund of the price paid by Customer including return postage and packing

13.2.If Customer returns any Products to PORTKEY SOLUTIONS (PTY) LTD’s nominate third party printing company and PORTKEY SOLUTIONS (PTY) LTD’s nominated third party printing company can prove they were not damaged or defective when Customer received them, or are not misdescribed, PORTKEY SOLUTIONS (PTY) LTD’s third party printing company may send them back to Customer, claiming the cost of return postage and no refund shall be due to Customer.

13.3. For the avoidance of doubt, PORTKEY SOLUTIONS (PTY) LTD shall not be liable to accept any returned Products from Customer in circumstances where the Product is based on Artwork produced by Customer which fails to comply with the Format Requirements stipulated by PORTKEY SOLUTIONS (PTY) LTD.

14. Liability

PORTKEY SOLUTIONS (PTY) LTD’s liability if Customer is purchasing as a consumer

14.1. . If PORTKEY SOLUTIONS (PTY) LTD fails to comply with these Terms, PORTKEY SOLUTIONS (PTY) LTD is responsible for any loss or damage suffered by Customer that is a foreseeable result of PORTKEY SOLUTIONS (PTY) LTD breach of the Terms or PORTKEY SOLUTIONS (PTY) LTD negligence. Loss or damage will be foreseeable if they are an obvious consequence of PORTKEY SOLUTIONS (PTY) LTD breach or if they were contemplated by Customer and PORTKEY SOLUTIONS (PTY) LTD at the time the Contract was entered into.

14.2. PORTKEY SOLUTIONS (PTY) LTD does not in any way exclude or limit its liability for:

14.2.1.death or personal injury caused by our negligence;
14.2.2. fraud or fraudulent misrepresentation;
14.2.3. defective products under the Consumer Protection Act, No.68 of 2008.

PORTKEY SOLUTIONS (PTY) LTD liability if Customer is purchasing as a business

14.3. Nothing in these Terms limit or exclude PORTKEY SOLUTIONS (PTY) LTD liability for:

14.3.1. death or personal injury caused by our negligence;
14.3.2. fraud or fraudulent misrepresentation;
14.3.3. defective products under the Consumer Protection Act, No.68 of 2008.

14.4.Subject to condition 14.3, PORTKEY SOLUTIONS (PTY) LTD will under no circumstances whatever be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
14.4.1. any loss of profits, sales, business, or revenue;
14.4.2. loss or corruption of data, information or software;
14.4.3. loss of business opportunity;
14.4.4. loss of anticipated savings;
14.4.5. loss of goodwill; or
14.4.6. any indirect or consequential loss.

14.5. Subject to condition 14.3 and condition 14.4, PORTKEY SOLUTIONS (PTY) LTD total liability to any business Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 200% of the price of the Products.

15. Communications between PORTKEY SOLUTIONS (PTY) LTD and Customer

15.1. When these Terms refer to “in writing”, this will include e-mail.

15.2. If Customer is purchasing as a consumer:

15.2.1. To cancel a Contract in accordance with Customer’s legal right to do so as set out in condition 6 Customer must contact PORTKEY SOLUTIONS (PTY) LTD in accordance with condition 6.3..
15.2.2. . If Customer wishes to contact PORTKEY SOLUTIONS (PTY) LTD in writing for any other reason, Customer can send this to PORTKEY SOLUTIONS (PTY) LTD by e-mail [support@portkey.co.za] or by pre-paid post to 24B Woodpecker Crescent, Jeffreys Bay, 6332, South Africa. Customer can always contact PORTKEY SOLUTIONS (PTY) LTD using the Customer Services telephone line.
15.2.3. If PORTKEY SOLUTIONS (PTY) LTD have to contact Customer or give Customer notice in writing, PORTKEY SOLUTIONS (PTY) LTD will do so by e-mail or by pre-paid post to the address Customer provided in the order.

15.3. If Customer is purchasing as a business, any notice given by Customer to PORTKEY SOLUTIONS (PTY) LTD, or by PORTKEY SOLUTIONS (PTY) LTD to Customer, will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee. The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.

16. Termination

16.1. PORTKEY SOLUTIONS (PTY) LTD processes personal data in accordance with its Privacy Policy [https://www.portkey.co.za/privacy-policy].
16.2. Before sending an Order Confirmation, PORTKEY SOLUTIONS (PTY) LTD has the right to cancel Customer’s order, if Customer does not deliver Artwork that complies with the Format Requirements within a period of four weeks from date of order.

17. Personal Data

17.1.PORTKEY SOLUTIONS (PTY) LTD processes personal data in accordance with its Privacy Policy.

17.2. PORTKEY SOLUTIONS (PTY) LTD will use the personal information provided by Customer to:

17.2.1. supply the Products;
17.2.2. process the payment for such Products; and
17.2.3. . inform Customer about similar products or services that PORTKEY SOLUTIONS (PTY) LTD provides, but Customer may stop receiving these communications at any time by contacting PORTKEY SOLUTIONS (PTY) LTD.

17.3. Save as set out in condition 17.4 below, PORTKEY SOLUTIONS (PTY) LTD does not pass any personal data to any other third party.

19. Trade marks / Copyright

The Customer shall indemnify PORTKEY SOLUTIONS (PTY) LTD against any and all claims, liability, costs losses, damages and expenses arising out of the use by PORTKEY SOLUTIONS (PTY) LTD of the materials provided to PORTKEY SOLUTIONS (PTY) LTD by Customer including (without limitation) the Artwork

20. Other important terms

20.1. . PORTKEY SOLUTIONS (PTY) LTD may transfer its rights and obligations under a Contract to another organisation, but this will not affect Customer’s rights or PORTKEY SOLUTIONS (PTY) LTD ‘s obligations under these Terms.

20.2. Customer may only transfer its rights or obligations under these Terms to another person if PORTKEY SOLUTIONS (PTY) LTD agrees in writing. However if Customer is a consumer and has purchased a Product as a gift, Customer may transfer the benefit of the warranty to the recipient of the gift without needing to ask PORTKEY SOLUTIONS (PTY) LTD consent.

20.3.The Contract is between PORTKEY SOLUTIONS (PTY) LTD and Customer. No other person shall have any rights to enforce any of its terms. If Customer is a consumer, the recipient of any gift of a Product will have the benefit of PORTKEY SOLUTIONS (PTY) LTD warranty, but PORTKEY SOLUTIONS (PTY) LTD and Customer will not need their consent to cancel or make any changes to these Terms.

20.4. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

20.5. If PORTKEY SOLUTIONS (PTY) LTD (i) fails to insist that Customer perform any of its obligations under these Terms, (ii) does not enforce its rights against Customer, or (iii) delays in enforcing its rights against Customer, that will not mean that PORTKEY SOLUTIONS (PTY) LTD has waived its rights against Customer or that Customer does not have to comply with those obligations. If PORTKEY SOLUTIONS (PTY) LTD does waive a default by Customer, PORTKEY SOLUTIONS (PTY) LTD will only do so in writing, and this will not mean that PORTKEY SOLUTIONS (PTY) LTD will automatically waive any later default by Customer.

20.6. If Customer is purchasing as a consumer, these Terms are governed by South African law. This means a Contract for the purchase of Products through the Website and any dispute or claim arising out of or in connection with it will be governed by South African law. Customer and PORTKEY SOLUTIONS (PTY) LTD both agree that the courts of South Africa will have non-exclusive jurisdiction.

20.7.If Customer is purchasing as a business, these Terms are governed by South African law. This means that a Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by South African law. Customer and PORTKEY SOLUTIONS (PTY) LTD both agree to the exclusive jurisdiction of the courts of South Africa.