Terms & Conditions
By signing up and/or making use of any Direct Debit service you agree to the terms and conditions of access and use below:
Conditions of Access and Use
Updated: 11 June 2019
These terms and conditions of use (“agreement”) govern the access and general use of the Direct Debit (Pty) Ltd (Pty) Ltd (“Direct Debit (Pty) Ltd”) website, https://www.directdebit.co.za, https://www.electronicmandate.com or https://www.emandate.co.za (“the website”). This agreement constitutes an agreement between the user (“you”) and Direct Debit (Pty) Ltd and/or other entities in the Direct Debit (Pty) Ltd Group (where applicable) and it is therefore important that you read and understand these terms and conditions.
2. Acceptance by you of the terms and conditions of this agreement
2.1 The website is made available to you by Direct Debit (Pty) Ltd subject to your acceptance, of the terms and conditions of this agreement. Accessing of and using the website constitutes an acceptance by you of this agreement and an undertaking to abide by the terms and conditions set out herein. Should you object to or disagree with any provision contained in this agreement, please do not use the website.
2.2 Direct Debit (Pty) Ltd may from time to time and in its sole discretion, amend this agreement at any time without notice to you. Any such amendments shall come into effect immediately and automatically. You agree to review this agreement, for any such amendments, whenever you visit the website. You will however be bound by the terms and conditions published on the website at the time of access.
3. Information on the website
3.1 The information on the website is general information about Direct Debit (Pty) Ltd and Direct Debit (Pty) Ltd.’s products and services. This information is to serve as a guideline only and is subject to final verification and confirmation on conclusion of any transaction. Any reliance upon any such information shall be at your sole risk.
3.2 Information provided by other parties may not be published on the website. Direct Debit (Pty) Ltd has no control over this information and makes no representations regarding the information and cannot warrant that it is accurate, appropriate or correct. In addition, live information feeds could be delayed, and you should always ensure that you are viewing the most current information.
3.3 The information on the website must not be construed as:
3.3.1 an offer, it is merely an introduction to our products and services; or
3.3.2 financial, legal, investment or professional advice of any kind. You must consult a professional advisor before you rely on any information that is published on or accessible via the website.
3.4 The information is provided “as is” and Direct Debit (Pty) Ltd will not be directly or indirectly liable for any damages that may arise if you rely on this information.
3.5 Direct Debit (Pty) Ltd gives no warranty of whatsoever nature expressed or implied as to the accuracy, reliability and completeness of any information on this website
4.1 For your convenience, the website may contain images and links to other websites belonging to or operated by third parties (“third party websites”). Direct Debit (Pty) Ltd is not endorsing any such third-party websites, the content thereof, products or services they offer or the owners of these third-party websites.
4.2 Direct Debit (Pty) Ltd has no control over such third-party websites. Please ensure that you obtain all information relevant to such third-party websites (including but not limited to conditions and policies) before using any information on these third-party websites.
4.3 Direct Debit (Pty) Ltd will not be liable for any loss or damage you suffer, whether directly or indirectly, as a result of your use of third-party websites. You agree that where you access third party websites, you do so entirely at your own risk.
5. Online products
5.1 The various products and services (“products”) Direct Debit (Pty) Ltd offer on different parts of the website or through associated websites are subject to their own agreements referred to as “service terms” and your use of those services will also be subject to the service terms governing those relevant products.
5.2 In the event of conflict between this agreement and the service terms, the provisions of the service terms will prevail to the extent of such conflict.
5.3 These services are subject to application and registration, which application may be accepted or rejected at Direct Debit (Pty) Ltd.’s sole discretion. Any auto response to an application should not be construed as an approval of the application.
5.4 These services will be subject to fees and charges which will be dealt with in the service terms. Direct Debit (Pty) Ltd reserves the right to amend such fees and charges from time to time.
6. Privacy and Security
7. Intellectual Property
7.1 The website is subject to copyright and intellectual property rights of Direct Debit (Pty) Ltd and other third parties.
7.2 You may not copy, reproduce, display or use any intellectual property of Direct Debit (Pty) Ltd or third parties which are used under license by Direct Debit (Pty) Ltd in any manner whatsoever without Direct Debit (Pty) Ltd’s prior written permission and nothing contained on the website should be construed as granting any licence or right of use of any intellectual property.
No hyperlink, frame, metatag or similar reference, whether electronically or otherwise (“linking”) to the website or any other subsidiary pages may be established without Direct Debit (Pty) Ltd.’s prior written consent, who may in its sole discretion reject or grant the application subject to conditions determined by Direct Debit (Pty) Ltd.
9.1 Unless the service terms provide for it you may not provide Direct Debit (Pty) Ltd with an instruction via email or the website.
9.2 Notwithstanding the aforesaid you authorise Direct Debit (Pty) Ltd to act on any communication that purports to originate from you, and you will not hold Direct Debit (Pty) Ltd liable if we act on such communication or if you execute an instruction more than once.
9.3 It remains your choice to communicate with Direct Debit (Pty) Ltd via e-mail or the website and you herewith accept and acknowledge that there is a risk that such communication may be subject to unlawful accessing or monitoring.
9.4 You accept and agree that Direct Debit (Pty) Ltd cannot be held liable for any loss, damage, claim, costs or expense arising from any unlawful access, monitoring of or tampering with any communications received from or sent to you.
10.1 Please ensure that your infrastructure (hardware and software) is regularly updated as it may result in a security risk to you and/or cause some or all the functionality of the website or online products not to operate properly or at all.
10.2 Any software, if any, made available for download on or via the website may be governed by licence conditions that establish a legal relationship with the licensor. Please ensure that you familiarise yourself with such terms and conditions as it governs your relationship with such third-party licensor. You agree that Direct Debit (Pty) Ltd shall not be responsible or liable for any damages, claims, losses or expenses resulting from or in connection with such third-party terms and conditions. You indemnify Direct Debit (Pty) Ltd against any breach by you of these terms and conditions.
11. Availability of the website
11.1 Direct Debit (Pty) Ltd in its sole discretion and without notice may suspend or discontinue the website, modify it or impose limits on the rights of use, features or functions; or restrict access to the website or parts thereof.
11.2 This website may be unavailable from time to time due to routine maintenance or emergency repairs or because of the unavailability of any electricity, telecommunication system or networks. For the duration of such unavailability you must use Direct Debit (Pty) Ltd.’s other available login channels.
12.1 To the fullest extent permissible by law, Direct Debit (Pty) Ltd expressly disclaims all (express and implied) warranties, including, without limitation, warranties of merchantability, title, and fitness for a particular purpose, non-infringement, compatibility, security and accuracy.
12.2 All the information appearing on this website is provided without representation or warranty whatsoever, whether expressed or implied, and Direct Debit (Pty) Ltd accepts no liability in this regard.
13.1 Use of this site and the online products is entirely at your own risk and you assume full responsibility for the risk or loss resulting from the use of the website and your reliance on information contained on it.
13.2 Direct Debit (Pty) Ltd does not represent or warrant that the website, any tools, software, advice, opinion, statement, information, content or online products will be error-free or will meet any particular criteria of accuracy, completeness, reliability, performance or quality. You acknowledge that any reliance upon any such tools, software, advice, opinion, statement or information shall be at your sole risk. Direct Debit (Pty) Ltd reserves the right, in its sole discretion, to correct any errors or omissions in any portion of this website.
13.3 Direct Debit (Pty) Ltd accepts no liability for any damages, losses, claims, costs or expenses (“damages”) whether direct, indirect, special, incidental, or consequential whatsoever relating to your usage of the website or the online products or information contained on the website or your inability to use the website or the online products, whether such damages arose out of contract, or delict or otherwise and regardless of whether Direct Debit (Pty) Ltd was expressly advised of the possibility of such damages.
13.4 Without derogating from the generality of the above, Direct Debit (Pty) Ltd will not be liable for:
13.4.1 Any interruption, malfunction, downtime, loss of data, programming defects or other failure of the website or online products, Direct Debit (Pty) Ltd.’s system, third party systems, databases or any of its components, power failures, unlawful access or tampering, hacking or computer viruses;
13.4.2 Any interruption, malfunction, downtime or other failure by third parties such as telecommunication service providers; internet service providers, electricity suppliers, local authorities and certification authorities; or any event any party over which Direct Debit (Pty) Ltd has no direct control.
13.5 The information on this site is for general information purposes only. You use this information at your own risk. For legal advice of representation, contact a licenses attorney in your area. Laws may change quickly, so Direct Debit (Pty) Ltd cannot guarantee that all the information is current and correct. Direct Debit (Pty) Ltd does not give any express or implied warranties of merchant ability, suitability or completeness of this information. To the extent permitted under applicable law, neither Direct Debit (Pty) Ltd, nor its agents, officers, employees or affiliated are liable for any direct, indirect, incidental, special, exemplary or consequential damages (including procurement of substitute good or services, loss of use or profits, or business interruption), even if Direct Debit (Pty) Ltd has been advised of the possibility of such damages on any theory of liability, whether in contract, strict liability, or tort, arising in any way out of the use of or inability to use this information.
A certificate signed by an employee of Direct Debit (Pty) Ltd (whose authority need not be proved) will constitute prima facie proof of the operation or functionality of any online service, product or part thereof and the contents of any information displayed (and any information relating thereto including but not limited to the date of publication, version or previous revisions) on the website on a given date. Direct Debit (Pty) Ltd.’s Privacy and Security policy or the relevant terms which govern an online product.
15. Applicable law and jurisdiction
This agreement and any product terms shall be governed and interpreted in accordance with the laws of the Republic of South Africa and use of this website or any application for any of the products or services offered on the website will constitute the consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from this agreement or the product terms.
16. Illegal use of website
You may not use the website for any unlawful purpose whatsoever and in order:
16.1 to maintain the integrity and security of the website and information technology systems; and
16.2 to investigate and detect any unauthorised use of our website and information technology systems; and
16.3 to secure the effective operation of the website and information technology systems;
you herewith expressly agree to the monitoring of your e-mail communications and internet access to the website.
All legal notices relating to specific products must be delivered as provided for in the relevant agreements.
18. Capacity to enter into agreements
In using the website, you represent and warrant that you have the required legal capacity (full age or emancipated or have your guardians’ consent and assistance) to enter into and be bound by this agreement.
19. Liability to Direct Debit (Pty) Ltd
You will be liable to Direct Debit (Pty) Ltd for any liabilities, losses or expenses incurred by Direct Debit (Pty) Ltd as a result of any breach by you of these terms and conditions.
20. General provisions
20.1 Clause headings in this agreement are provided for convenience and ease of reference only and will not be used to interpret, modify or amplify the terms of the conditions.
20.2 Where any dates or times need to be calculated in terms of this agreement, the international standard time: GMT plus two hours shall be used.
20.3 No indulgence, extension of time, waiver or relaxation of any of the provisions or terms of this agreement which Direct Debit (Pty) Ltd may show, grant or allow you or failure or delay by Direct Debit (Pty) Ltd to exercise any of our rights will operate as an estoppel against Direct Debit (Pty) Ltd or constitute a waiver of any such right. Direct Debit (Pty) Ltd shall not thereby be prejudiced or stopped from exercising any of its rights against you which may have arisen in the past or which might arise in the future.
20.4 If any of these terms, conditions or provisions are held to be illegal, invalid, unlawful or unenforceable, the term, condition or provision will be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it were not written and deleted from this agreement without invalidating the remaining terms, conditions and provisions of this agreement.
21. eSignature Legalities
Under South African law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. Section 13(2) of The Electronic Communications and Transactions Act (ECTA) specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically or through data messages. To prove a valid contract, parties sometimes must present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under section 15 of ECTA, to support the existence, authenticity and valid acceptance of a contract.
21.1 Use Cases for Standard Electronic Signature
21.1.1 Use cases where an SES is typically appropriate include:
HR documents, such as employment contracts, benefits paperwork and other new employee onboarding processes
commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements
consumer agreements, including new retail account opening documents
real estate documents, including lease agreements for residential and commercial real estate not lasting for a period of more than 20 years
21.2 Use Cases for Other Types of Electronic Signature
21.1.2 Use cases where an electronic signature other than SES may be required include:
When a signature is required by law, but the law does not specify the type of signature required, it can only be signed with an advanced electronic signature as defined by ECT Act. South Africa’s advanced electronic signature is required for:
A suretyship (General Amendment Act, 1956)
Signing as a Commissioner of Oaths (Justices of the Peace and Commissioners of Oath Act, 1963)
21.3 Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management
21.3.1 Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.
Handwritten – contracts for transfer or sale of immovable property, including sectional titles and mortgage bonds (excluded from ECT Act)
Handwritten – deeds and long-term leases for a period of more than 20 years, (excluded from ECT Act)
Handwritten – wills and codicils (excluded from ECT Act)
Handwritten – bills of exchange (e.g., cheques) (excluded from ECT Act)
Handwritten – license of intellectual property, IP transfers and employee invention agreements (Patents Act, 1978, the Design Act, 1993, the Trade Marks Act, 1993 and the Copyright Act 1978)
21.3.2 An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) uniquely linked to the signatory; (b) capable of identifying the signatory; (c) created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.
22. Sites & Services terms and conditions
22.1 These E-Mandate Services Terms and Conditions (“Terms”) govern access to and use of the E-Mandate (“E-Mandate,” “we” or “us”) web sites and services (collectively, the “Site”) by site visitors (“Site Visitors”), and by individuals or entities who purchase services (“E-Mandate Services”). By using the Site or any E-Mandate Service, you as a Site Visitor or Customer accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is each an individual natural person, whether an employee, business partner, contractor or agent of a Customer who is registered or permitted by Customer to use the E-Mandate Services subject to these Terms and up to any maximum number of users or uses specified at the time of purchase. Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
22.2 If you are a Customer and you or your organization is bound by an Agreement with E-Mandate Service, then these Terms will apply, if at all, only to use of the Site or any E-Mandate Services to the extent such use is not already governed by such a Service Agreement. For the avoidance of doubt, all references to the “Site” in these Terms also includes the E-Mandate Services.
23. Updates and Communications
23.1 We may revise these Terms or any additional terms and conditions which are relevant to an E-Mandate Service from time-to-time to reflect changes in the law or to the Services. Please review the site on a regular basis to obtain timely notice of any revisions. If you continue to use the E-Mandate services after the revisions take effect, you agree to be bound by the revised terms. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
23.2 You agree to receive electronically all communications, agreements, and notices that we provide in connection with any E-Mandate Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Site or through any E-Mandate Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your Account contact information current.
24. Additional terms for E-Mandate services
24.1 E-Mandate Signature. If you use E-Mandate Signature, you accept the Terms of the E-Mandate Signature.
25. Usage and access rights
25.1 Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms. You acknowledge that you are not permitted to use the Site if you cannot make these representations. If E-Mandate has previously prohibited you from accessing the Site or using the E-Mandate Services, you are not permitted to access the Site or use the E-Mandate Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
25.2 Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your internal business purposes and only as expressly permitted in these Terms. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. Except as otherwise restricted by these Terms, E-Mandate grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Subscription Plan; and (c) do not modify them in any way. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access. Any violation by you of the license provisions may result in the immediate termination of your right to use the Site, as well as potential liability for copyright infringement or other claims depending on the circumstances.
26.1 Intellectual Property. The Site contains materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties.
26.1.1 The Site is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Site. You acknowledge that the Site contains original works that have been developed, compiled, prepared, revised, selected, and arranged by Direct Debit (Pty) Ltd (Pty) Ltd and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of E-Mandate and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processed related thereto, including rights in and to all applications and registrations relating to the Site shall, as between you and Direct Debit (Pty) Ltd, at all times be and remain the sole and exclusive property of Direct Debit (Pty) Ltd.
26.1.2 The trademarks, logos, taglines and service marks displayed on the Site (collectively, the “Trademarks”) are registered and unregistered Trademarks of Direct Debit (Pty) Ltd and others. The Trademarks may not generally be used in any advertising or publicity, or otherwise to indicate Direct Debit (Pty) Ltd.’s sponsorship of or affiliation with any product, service, event or organization without Direct Debit (Pty) Ltd.’s prior express written permission. Direct Debit (Pty) Ltd acknowledges the Trademarks of other organizations for their respective products or services mentioned on the Site. Any rights not expressly granted in these Terms or on the IP Pages are reserved by Direct Debit (Pty) Ltd (Pty) Ltd.
26.1.3 Copyright. E-Mandate respects copyright law and expects its users to do the same. If you believe that any content or material on the Site infringes copyrights you own, please notify us in accordance with our policies.
26.2 Software Use Restrictions. Software available for downloading through the Site or third-party websites or applications is the copyrighted work of E-Mandate and third-party providers. Use of the Software is governed by these Terms. Unauthorized reproduction or distribution of the Software is expressly prohibited by law and may result in civil and criminal penalties. Violators may be prosecuted.
27. Non-eDocument Content and Submissions/User Content
27.3.1 Submissions. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. For the avoidance of doubt, User Content does not include any document, such as a contract, disclosure, notice that you deposit into the E-Mandate Signature service for processing (“eDocuments”).
27.3.2 Screening & Removal. You acknowledge and agree that E-Mandate and its designees may or may not, at E-Mandate’s discretion, pre-screen User Content before its appearance on the Site or E-Mandate Services, but that E-Mandate has no obligation to do so. You further acknowledge and agree that E-Mandate reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Site or E-Mandate Services. Without limiting the foregoing, E-Mandate and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in E-Mandate’s sole discretion. You acknowledge and agree that E-Mandate does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
28. Restrictions on use of the site
28.1 By using the Site, including any E-Mandate Service, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
a. Is illegal, or violates any federal, state, or local law or regulation;
b. Advocates illegal activity or discusses illegal activities with the intent to commit them;
c. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
d. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libellous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
e. Interferes with any other party’s use and enjoyment of the Services;
f. Attempts to impersonate another person or entity;
g. Is commercial in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
h. Falsely states, misrepresents, or conceals your affiliation with another person or entity;
i. Accesses or uses the account of another user without permission;
j. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
k. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site, or any of the E-Mandate Services;
l. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
m. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
n. Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
o. Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Site;
p. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
q. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Site;
r. Uses the Services for benchmarking, or to compile information for a product or service;
s. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site or E-Mandate Services, by any means except as provided for in these Terms or with the prior written consent of E-Mandate; or
t. Attempts to do any of the foregoing.
28.2 In addition, Customers shall not, and shall not permit others to, do the following with respect to the E-Mandate Services:
a. Use the E-Mandate Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms.
b. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the E-Mandate Services or E-Mandate’s then-current technical and functional documentation for the E-Mandate Services (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms; or
c. Access or use the E-Mandate Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the E-Mandate Services or allow access by a direct competitor of E-Mandate.
28.3 You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
28.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
30. Terms specific to E-Mandate services
30.1 Right to Use E-Mandate Services
Subject to these Terms, E-Mandate will provide the E-Mandate Services to Customers in accordance with each Customer’s Subscription Plan, and E-Mandate grants to each Customer a limited non-exclusive, non-transferrable right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the E-Mandate Services; (b) implement, configure and permit its Authorized Users to access and use the E-Mandate Services up to any applicable limits or maximums; and (c) access and use the Documentation.
30.2 Payment Terms
30.2.1 Subscription Plan. The prices, features, and options of the E-Mandate Services depend on the Subscription Plan selected as well as any changes instigated by Customer. E-Mandate does not represent or warrant that a specific Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
30.2.2 No Refunds. Customer will timely pay E-Mandate all fees associated with its Subscription Plan, Account or use of the E-Mandate Services, including, but without limitation, by Authorized Users. Customer’s payments are non-refundable except as expressly provided in these terms. Charges for pre-paid Subscription Plans will be billed to Customer in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears unless otherwise specified in the Subscription Plan.
30.2.3 Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a credit card or banking details, that you are authorized to use. Customer must promptly notify us of any change in its invoicing details and must update its Account with any changes related to its payment method. By completing order for a subscription, customer authorises E-Mandate or its agent to charge it payment method on a recurring basis the applicable charges, any applicable taxes and any other charges incurred in connection with customer’s use of the E-Mandate services. The Authorization continues through the applicable Subscription Term and any Renewal Term until Customer cancels as set forth these Terms.
30.2.4 Late Fees & Collection Costs. If E-Mandate does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to hand over to our debt collectors for collection. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by E-Mandate to collect any amount that is not paid when due. E-Mandate may accept payment in any amount without prejudice to E-Mandate’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to E-Mandate may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from E-Mandate.
30.2.5 Invoices. E-Mandate will provide billing and usage information in a format we choose, which may change from time to time. E-Mandate reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
30.2.6 Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from Customer’s payment card issuer until submission of the accumulated charge(s).
30.2.7 Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on E-Mandate’s net income (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the E-Mandate Services. Taxes shall not be deducted from the payments to E-Mandate, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, E-Mandate receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that E-Mandate can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for sales tax purposes. E-Mandate’s and Customer’s obligations shall survive the termination or expiration of these Terms.
31.3.1 Data Generally. You shall be responsible for data that you provide or use in E-Mandate Services. You are solely responsible for determining the suitability of the E-Mandate Services for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide, and your use of the E-Mandate Services and Site.
31.3.2 Personal Data. Customer warrants that its collection and use of any personal information or data provided while using the Site complies with all applicable data protection laws, rules, and regulations.
31.4 Customer Warranties
Customer hereby represents and warrants to E-Mandate that: (a) it has all requisite rights and authority to use the E-Mandate Services under these Terms and to grant all applicable rights herein; (b) it is responsible for all use of the E-Mandate Services associated with its Account; (c) it is solely responsible for maintaining the confidentiality of its Account names and password(s); (d) it agrees to immediately notify E-Mandate of any unauthorized use of Customer’s Account of which it becomes aware; (e) it agrees that E-Mandate will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the E-Mandate Services for lawful purposes only and subject to these Terms; (g) any information it submits to E-Mandate is true, accurate, and correct; and (h) it will not attempt to gain unauthorized access to the System or the E-Mandate Services, other accounts, computer systems, or networks under the control or responsibility of E-Mandate through hacking, cracking, password mining, or any other unauthorized means.
31.5.1 Confidential Information. “Confidential Information” means (a) for E-Mandate, the E-Mandate Services and Documentation; (b) for Customer, Customer Data; (c) any other information of a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the Recipient), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of this Agreement, and any amendment and attachment thereof, between the parties. Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of the disclosing party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
31.5.2 Restricted Use and Nondisclosure. During and after the Subscription Term, the party receiving Confidential Information (“Recipient”) will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Notwithstanding the foregoing, Customer expressly authorizes E-Mandate to use and process Customer Data, which provides for, but is not limited to, delivering eDocuments as indicated by Customer’s use of the E-Mandate Services and sharing Transaction Data with individuals that are authorized to view, approve or sign eDocuments created by Customer.
31.5.3 Required Disclosure. If E-Mandate is required by law to disclose Confidential Information, E-Mandate will give prompt written notice to Customer before making the disclosure, unless prohibited from doing so by the legal or administrative process and assist Customer to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
31.5.4 Ownership. Notwithstanding any other provision of these Terms, E-Mandate acknowledges that, as between the parties, all Confidential Information it receives from Customer, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by Customer. Nothing in these Terms grants E-Mandate any right, title or interest in or to any of the Customer’s Confidential Information. E-Mandate’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
32. Term and termination
32.1 Termination – Site Visitors. A Site Visitor can terminate its use of the Site at any time by ceasing further use of the Site. E-Mandate may terminate your use of the Site and deny you access to the Site in our sole discretion for any reason or no reason, including for violation of these Terms.
32.2 Term and Termination – Customers.
32.2.1 Suspension of Access to E-Mandate Services. E-Mandate may suspend any use of the E-Mandate Services, remove any content or disable or terminate any Account or Authorized User that E-Mandate reasonably and in good faith believes violates these Terms. E-Mandate will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless E-Mandate reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the E-Mandate Services or a third party. Under circumstances where notice is delayed, E-Mandate will provide the notice when the related restrictions in the previous sentence no longer apply.
32.2.2 Term. The period of effectiveness of these Terms (“Term”), with respect to E-Mandate Services, begins on the date the Customer accepts it and continues until the Customer’s Subscription Plan expires or its use of the E-Mandate Services ceases, whichever is later.
32.2.3 Subscription Term and Automatic Renewals. E-Mandate’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) E-Mandate declines to renew your Subscription Plan; or (c) these Terms are otherwise properly terminated as expressly permitted herein. Each renewal period is a “Renewal Term.” Subscription Plan fees and features may change over time and we may recommend a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the
Renewal Term and thereafter.
32.2.4 Termination by Customer. You may terminate your Account at any time upon thirty (30) days’ advance written notice to E-Mandate. If you wish to terminate, you must provide notice by contacting us here: [email protected] E-Mandate has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first thirty (30) days of the relevant Subscription Plan, or if there has been violation of other Terms herein, or if records indicate substantial productive use took place during that period.
32.2.5 Default; Termination by E-Mandate. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the E-Mandate Services; (c) if, in our sole discretion, we believe that continued use of the E-Mandate Services by the Customer (or its Authorized Users or signers) creates legal risk for E-Mandate or presents a threat to the security of the E-Mandate Services or E-Mandate’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the E-Mandate Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. An E-Mandate “Affiliate” means any legal entity that is owns E-Mandate, or that is under common control with E-Mandate, “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.
32.2.6 Effect of Termination. If these Terms expires or are terminated for any reason: (a) Customer will pay to E-Mandate any amounts that have accrued before, and remain unpaid, as of the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of Customer’s liabilities to E-Mandate that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Site and E-Mandate Services and intellectual property will immediately terminate; (d) E-Mandate’s obligation to provide any further services to Customer under these Terms will immediately terminate, except any such services that are expressly to be provided following expiration or termination of these Terms; and (e) Restrictions on Use of the Site.
33. Warranties and disclaimers
The E-Mandate services, documentation and site are provided “as is” and “as available”. Your use of the E-Mandate services, documentation, and site shall be at your sole risk. E-Mandate and its respective officers, directors, employees, members, shareholders, agents, affiliates, subsidiaries, and licensors (“E-Mandate parties”).: (a) Makes no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law, or statutory, as to any matter whatsoever; (b) expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality accuracy, and title; and (c) does not warrant that the E-Mandate services, documentation, or site are or will be error-free, will meet your requirements, or be timely or secure. You will be solely responsible for any damage resulting from the use of the E-Mandate services, documentation or site.
The E-Mandate parties make no warranties or representations that E-Mandate services, documentation, and site have been and will be provided with due skill, care and diligence or about the accuracy or completeness of the E-Mandate services, documentation, and site content and assumed no responsibility for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of E-Mandate services, documentation, and site; (iii) any unauthorized access to or use of our servers and/or any and all personal information and/or financial information stored therein; (iv) any interruption or cessation of transmission to or from the site; (v) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the site through the actions of any third party; (vi) any loss of your data or content from the site; and/or (vii) any errors or omissions in any content posted, emailed, transmitted, or otherwise made available via E-Mandate services, documentation and site. You will not have the right to make or pass on any representation or warrant on behalf of E-Mandate to any third party.
The E-Mandate parties do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the site, and the E-Mandate parties will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. You are solely responsible for all of your communications and interactions with other person with whom you communicate or interact as a result of your use of the site.
34. Indemnification obligations
You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Site; (b) violation of these Terms by you or Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all Customer Data processed by the E-Mandate Services; or (e) any products or services purchased or obtained by you in connection with the Site.
E-Mandate retains the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
35. Limitations of liability
35.1 Disclaimer of Consequential Damages. Notwithstanding anything to the contrary contained in these terms, E-Mandate will not, under any circumstances, be liable to you for any consequential, incidental, special, cover, punitive or exemplary damages arising out of or related to the transactions contemplated under these terms, including, but not limited to, goodwill, work stoppage, lost profits or loss of business, even if apprised of the likelihood of such losses, and whether such claims are made based on contract, torn (including negligence), or any other legal theory.
To the fullest extent permitted by applicable law, in no event shall the E-Mandate parties be liable to you for any direct, indirect, incidental special punitive or consequential damages whatsoever resulting from any: (a) use of the site, documentation or E-Mandate services; (b) errors, mistakes or inaccuracies of content; (c) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the site; (c) personal injury or property damage, of any nature whatsoever resulting from your access to and use of the site, documentation, or E-Mandate services; (d) any unauthorised access to or use of our services of our servers and/or any and all personal information and/or financial information stored therein; (e) any interruption or cessation of transmission to or from our servers; (f) any bugs, viruses, trojan horses, or the like, which may be transferred to or through the site, documentation, or E-Mandate services by any third party; (g) any loss of your data or content from the site, documentation, or E-Mandate services; (h) any errors or omissions in any content posted, transmitted, or otherwise made available via the site, documentation, or E-Mandate services, whether based on warranty, contract, tort (including negligence), or any other legal theory, and whether or the E-Mandate parties are advised of the possibility of such damages and/or (i) the disclosure of information pursuant to these terms.
35.2 Cap on Damages. Our total liability to you for any cause of action arising out of or relates to these terms or to your use of our website (including without limitation warranty claims), regardless of the forum and regardless of whether any action on claim is based on contract tort (including negligence), or any other legal or equitable theory, will not exceed the total amount paid by you to E-Mandate for the E-Mandate services giving to the claim under these terms.
35.3 Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
36.1 Third Party Content. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. E-Mandate is not responsible for the content on the internet or web pages that are located outside of the site or posts of user content. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.
36.2 Relationship. At all times, you and E-Mandate are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of E-Mandate or is otherwise authorized to bind or commit E-Mandate in any way without E-Mandate’s prior written authorization.
36.3 Assignability. You may not assign your rights or obligations under these Terms without E-Mandate’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. E-Mandate may freely assign its rights, duties, and obligations under these Terms.
36.4 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the E-Mandate Services will be effective only if it is in writing and sent using: (a) the E-Mandate Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in Customer’s registration information or on the Site for E-Mandate, with a copy, in the case of E-Mandate. Customer or E-Mandate may change its address for receipt of notice by notice to the other party through a notice provided. Notices are deemed given upon receipt if delivered using E-Mandate Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
36.5 Force Majeure. Except for any payment obligations, neither you nor E-Mandate will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
36.6 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.
36.7.1 You agree that these Terms affect interstate commerce and enforcement of these arbitration provisions. This is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
36.7.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at [email protected], and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and E-Mandate agree to use their reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with E-Mandate, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
36.7.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of E-Mandate shall be finally settled by binding arbitration excluding any rules or procedures governing or permitting class actions.
36.7.4 Arbitrator’s Powers. The arbitrator, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
36.7.5 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and E-Mandate agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
36.7.6 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in court with jurisdiction to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
36.7.7 Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
36.8 Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, are the final, complete, and exclusive expression of the agreement between you and E-Mandate regarding the E-Mandate Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the E-Mandate Services under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. E-Mandate hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on these Terms and conditions of these Terms as offered by E-Mandate. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted.
36.9 Language and Translations. E-Mandate may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
36.10 Waiver. The waiver by either you or E-Mandate of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
36.11 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
37. E-Mandate Signature Service Schedule
This Service Schedule was last updated on 10 April 2019. Unless otherwise defined in this Service Schedule, capitalized terms will have the meaning given to them in the Terms.
“E-Mandate Signature” means the on-demand electronic signature E-Mandate Service, which provides online display, certified delivery, acknowledgement, electronic signature, and storage services for eDocuments via the Internet.
“System” refers to the software systems and programs, the communication and network facilities, and the hardware and equipment used by E-Mandate or its agents to provide the E-Mandate Signature service.
“Transaction Data” means the metadata associated with a mandate (such as transaction history, hash value, method and time of mandate deletion, sender and recipient names, email addresses and signature IDs/IP’s and maintained by E-Mandate in order to establish the digital audit trail required by E-Mandate Signature.
37.2 E-Mandate’s provision of the E-Mandate Signature service is conditioned on Customer’s acknowledgement of an agreement to the following:
(a) E-Mandate Signature facilitates the execution of eDocuments between the parties to those eDocuments. Nothing in this Schedule may be construed to make E-Mandate a party to any eDocument processed through E-Mandate Signature, and E-Mandate makes no representation or warranty regarding the transactions sought to be affected by any eDocument;
(b) Between E-Mandate and Customer, E-Mandate has exclusive control over and responsibility for the content, quality, and format of any eDocument. eDocuments stored by E-Mandate on the System are maintained in an encrypted form;
(c) Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law) or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. E-Mandate is not responsible for determining whether any particular eDocument is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; or (iii) whether it can be legally formed by electronic signatures;
(d) E-Mandate is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, E-Mandate is not responsible for providing Customer’s eDocuments or other documents to third parties;
(e) Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers,” such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. E-Mandate does not and is not responsible to: (i) determine whether any particular transaction involves a “consumer;” (ii) furnish or obtain any such consents or determine if any such consents have been withdrawn; (iii) provide any information or disclosures in connection with any attempt to obtain any such consents; (iv) provide legal review of, or update or correct any information or disclosures currently or previously given; (v) provide any such copies or access, except as expressly provided in the Documentation for all transactions, consumer or otherwise; or (vi) otherwise to comply with any such special requirements; and
(f) Customer undertakes to determine whether any “consumer” is involved in any eDocument presented by its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such eDocuments or their formation.
37.3 Subscription Plans purchased on E-Mandate.com may not be used in conjunction with E-Mandate APIs and are available for use with a limited number of integrations.
37.4. eDocument storage and deletion
37.4.1 Sending, Storage. During the Term E-Mandate will send and store eDocuments per these Terms of the Subscription Plan. However, E-Mandate may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use of E-Mandate Signature. Customer may retrieve and store copies of eDocuments for storage outside of the System at any time during the Subscription Term when Customer is in good financial standing under these Terms and may delete or purge eDocuments from the System at its own discretion.
37.4.2 Deletion. E-Mandate may delete an Account and Customer Data, including without limitation eDocuments (whether complete or not), upon the expiration of the Subscription Term or termination.
37.4.3 Retention of Transaction Data. E-Mandate may retain Transaction Data for as long as it has a business purpose to do so.
37.5 Information security and personal data
37.5.1 Customer Responsibilities. E-Mandate Signature provides Customer with certain features and functionalities that Customer may elect to use, including the ability to retrieve eDocuments in the System. Customer acknowledges that E-Mandate has no obligation to protect Customer Data, including Personal Data (defined below), that Customer elects to store or transfer outside of E-Mandate Signature (e.g., offline or on-premise storage).
37.5.2 Information Security. E-Mandate will employ commercially reasonable technical and organizational measures that are designed to prevent unlawful or unauthorized access, use, alteration, or disclosure of Customer Data.
37.6 Accounts & Organizational Administration
37.6.1 Each Account is associated with an email address. If the domain of the primary email address associated with an Account is owned by a business or other organization (“Entity”) and was assigned to Customer as an employee, contractor or member of the Entity, such as yourname @ youremployer.com or yourname @ nonprofit.org (“Entity Email Address”), Customer grants that Entity and its administrator(s) permission to: (a) identify Accounts created with an Entity Email Address; and (b) restrict or terminate access to an Account created with an Entity Email Address. Customer acknowledges and agrees that E-Mandate may assist Entity with such administration.
37.7 Subscription plan & prices
37.7.1 The prices, features, and options of E-Mandate Signature depend on the Subscription Plan selected by Customer as well as any changes instigated by Customer. For example (a) if Customer sends more mandates than are included in your Subscription Plan, E-Mandate may charge for additional mandates or assign Customer to a new Subscription Plan. Customer may also purchase optional services on a periodic or per-use basis. E-Mandate may change the prices for or alter the features and options in a particular Subscription Plan without notice.
38. Definitions: E-Mandate Payments
38.1 “Cardholder Data” means individual credit and debit card account numbers or related data.
38.2 “E-Mandate Payments” means the feature of E-Mandate Signature designed to collect payment information for the purpose of payment processing.
38.3 “Payment Applications” refers broadly to all supported payment applications, gateways, processors and service providers that store, process, or transmit cardholder data as part of authorization or settlement, where these payment applications are sold, distributed, or licensed to Customer by third parties.
38.4 “Payment Card Brands” means MasterCard, and Visa.
38.5“Signer” means the person that uses E-Mandate Payments to make a payment transaction that results in the debiting or charging of an amount to such person’s payment instrument and the crediting of funds to Customer.
39. E-Mandate Payments
39.1 E-Mandate Payments is a E-Mandate Service based in and provided from the South Africa that helps facilitate communication between Customer, Customer’s Authorized Users, and Payment Applications service providers regarding payments and payment processing.
39.2 During the Term, and subject to compliance with the terms and conditions of this Service Attachment, Customer with a E-Mandate Payments-enabled Account for E-Mandate Signature, and Customer’s Authorized Users, will have the right to access and use E-Mandate Payments within such Account in accordance with the Terms for Customer’s internal business purposes.
39.3 To facilitate payments through a third-party Payment Application, Customer will be required to provide E-Mandate with certain Customer Data, including, specifically, information that allows E-Mandate to: (a) transmit Customer’s identifying information to a Payment Application; (b) if applicable, receive appropriate payment authorization from a Payment Application; and (c) collect any other information that Customer or Payment Application requires of E-Mandate in order to facilitate payment processing. Customer authorizes E-Mandate to store, process, and transmit Customer Data as necessary for a Payment Application to facilitate payment processing between Customer and a third party designated by Customer. Unless otherwise provided in the applicable Service Schedule for E-Mandate Signature, E-Mandate Payments will temporarily store information received from Customer, such as account information for a Payment Application, only for the purpose of facilitating the payment processing.
39.4 The payment processing facilitated through E-Mandate Payments is communication activities between Customer and a third party and/or Customer and a Payment Application, and not with E-Mandate or any of its Affiliates. Payment Applications are operated by third-party organizations. E-Mandate does not control the payment methods made available by the Payment Applications through E-Mandate Signature nor the products or services that are sold or purchased by Customer. At no time does E-Mandate receive or hold payments or value for any party when E-Mandate Payments is used to facilitate communication of payment processing requests. Customer acknowledges and agrees that E-Mandate cannot ensure that a Signer or third party will complete a payment processing or that it is authorized to do so.
40. Additional customer responsibilities
40.1 E-Mandate’s provision of the E-Mandate Payments is conditioned on Customer’s acknowledgment of an agreement to the following:
(a) Customer is solely responsible for registering and maintaining an account with Payment Applications in order to receive payment and other services that may be necessary to use E-Mandate Payments;
(c) Customer is solely responsible for the acts and omissions of its Authorized Users in relation to their use of E-Mandate Payments and for ensuring that such use complies with the terms of the Agreement;
(d) Customer is solely responsible for any and all disputes with any Payment Applications or Signers related to or in connection with a payment processing sought to be facilitated via E-Mandate Payments, including, but not limited to: (i) chargebacks; (ii) products or services not received; (iii) return of, delayed delivery of, or cancelled products or services; (iv) cancelled transactions;
(v) duplicate transactions or charges; (vi) electronic debits and credits involving bank accounts, debit cards, credit cards, and check issuances; and (vii) amount of time to complete payment processing.
40.2 Customer is responsible for compliance with the Payment Card Industry Data Security Standard, developed and published jointly by the Payment Card Brands for protecting Cardholder Data as it relates to their payment processes and use of Cardholder Data and as it may be updated from time-to-time.
41. Third party claims
In addition to the third party claims obligations and subject to the indemnification procedures under the Terms, Customer will indemnify E-Mandate’s and its Affiliates’ Indemnified Parties from, and defend the Indemnified Parties against, any Claim to the extent arising from or related to: (a) improper use of E-Mandate Payments by Customer or its Authorized Users, or Signers; (b) any breach by Customer of its obligations hereunder; (c) the nature and content of all Cardholder Data or any related data thereto provided by Customer, its Authorized Users, or Signers through use of E-Mandate Payments; (d) violation of any law or the rights of a third party by Customer through its use of E-Mandate Payments and/or the actions or inactions of any third party to whom Customer grants permissions to use Customer’s Account or access E-Mandate Payments on Customer’s behalf; and (e) the terms of an agreement between Customer and a Signer, or Customer and a Payment Application.
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