Please read the below Terms and Conditions carefully before making use of the services available at TouchBasePro.com (‘’hereinafter referred to as the Company’’), or offered by or on behalf of TouchBasePro (Pty) Ltd or its affiliates. Once the terms have been accepted via the Company’s website or in writing, this agreement is entered into between the parties based on the following terms:
1. Definitions
1.1. “this Agreement” – means these Standard Terms and Conditions of Sale as read with the Company’s service contract with all appendices thereto;
1.2. ‘’Account/s’’ – means with reference to the Software and the Services, the unique profile of the Customer relayed in terms of the Software, which identifies and describes the Customer’s use of the Services, its preferences, and settings and which includes the Customer data;
1.3. “BasePoints” – refers to the mechanism used to quote and bill any services rendered by TouchBasePro;
1.4. ‘’Business Hours’’ – means the hours of 09:00 to 17:00 Monday to Friday, excluding public holidays and weekends.
1.5. ‘’Bulk Messages” – means that virtually the same content/email and/or SMS-message is sent to many people;
1.6. ‘’Client Data’’ – means the Customer’s data submitted to TouchBasePro and as hosted on the server, including text and multimedia, copies, templates, images, video files, audio files, contact and subscriber information, mailing lists and other information supplied by the Customer to TouchBasePro in any other format which the Customer’s data may be hosted in.
1.7. ‘’the Company’’ – means TouchBasePro (Pty) Ltd (hereinafter referred to as TouchBasePro or TouchBasePro.com), including its associated and subsidiary companies, successors-in-title and assigns duly registered in terms of the laws of the Republic of South Africa with registration nr 2012/181952/07;
1.8. ‘’the Customer’’ – means the party indicated on the service contract, alternatively the party to whom the Company is providing the Service;
1.9. ‘’Effective Date’’ – means regardless of the acceptance date, the date on which TouchBasePro commences the rendering of the services as stipulated the terms and conditions;
1.10. ‘’Mailing List’’ – means the list/s of email recipients compiled by the Customer in relation to
each instance of the Customer’s use of the services;
1.11. ‘’Notice Period’’ – means 30 work/business days;
1.12. ‘’Pay-as-You-Go (PAYG) Credits’’ – means emails or sms credits available for purchase on a top-up and/or ad hoc basis in the event that monthly credits run out;
1.13. ‘’POPIA’’ – means the Protection of Personal Information Act, 4 of 2013;
1.14. ‘’Quote’’ – means a cost estimate for the rendering of products and services;
1.15. ‘’Send Limits’’ – means the maximum number of emails that the Customer may distribute each month for the duration of the agreement as determined by the applicable subscriber limits and/or packages selected;
1.16. ‘’the Service’’ – means the service provided by the Company to the Customer at the latter’s specific instance and request;
1.17. ‘’Service contract’’ – means the Company’s written hard copy service contract or contracts that may exist in addition to these standard terms and conditions, hereinafter referred to as “Service contract” or “Agreement(s)”;
1.18. ‘’Sent’’ – means, specifically when referring to a SMS text message, the act of the Customer publishing a text message from the TouchBasePro Software platform, at which point it immediately becomes billable to the Customer, irrespective of whether or not the text message is successfully delivered and/or read by the subscriber;
1.19. ‘’SMS’’ – means a text message sent using the text-messaging service component of phone, web, or mobile communication systems, using standardised communications protocols that allow the exchange of short text messages between fixed line or mobile phone devices.
1.20. ‘’Software / TouchBasePro Software’’ – means TouchBasePro software, which comprises of bulk e-mail and SMS-message distribution web-hosted software developed by TouchBasePro and licensed, provided or authorised by TouchBasePro to the Customer to enable the provision of the Services to the Customer;
1.21. ‘’Spam’’ – means unsolicited bulk email and / or SMS-message distribution; any email sent to a recipient who has not given their direct permission to be emailed. In other words, your recipients must have given you their permission to be contacted by the Customer. If the recipient hasn’t heard of the entity that’s emailing them, or hasn’t heard from them in so long they’ve forgotten, it’s SPAM. TouchBasePro has a strict opt-in only policy and does not cater for opt-out marketing.
1.22. ‘’Subscriber Limits’’ – means the maximum number of Subscribers and / or Contacts per Mailing List which the Customer has elected / is entitled to distribute email correspondence to each month for the duration of this Agreement. For avoidance of doubt it is noted that each time that a Subscriber / Contact appears on a Mailing List such Subscriber / Contact will be counted as a Subscriber for purposes of determining the Subscriber Limit.
1.23. ‘’Third Party Data’’ – means the content and data licensed or acquired by the Customer from third party content providers (i.e., Third Party Services). For the sake of clarity, Third Party Data is owned by the respective third party content provider;
1.24. ‘’Transactional Emails’’ – refer to an email that is sent to an individual recipient following a commercial
transaction or specific action performed by that person, such as a purchase in your connected store or a password reset request. Such emails are typically related to subscriber/customer account changes or transactions.
1.25. ‘’Unsolicited’’ – means that the Recipient has not granted verifiable permission for the message to be sent to them.
1.26. ‘’Users’’ – means individuals who are authorized by the Company to use the Services as specified in this agreement between the Company and the Customer and who have been supplied with user identifications and passwords by the Company. Users may include, but are not limited to, the Customer’s employees, consultants, contractors, agents and third parties authorized by and acting on behalf of Subscriber.
2. Agreement
2.1. The Customer requires and the Company shall provide the Services in accordance with the terms contained in this agreement.
2.2. The agreement is entered into by the parties to regulate –
2.2.1. The services to be rendered and software to be supplied;
2.2.2. The obligations of the parties in relation to the terms and conditions contained herein.
2.3. This agreement constitutes an offer to the Customer, which offer shall become binding upon acceptance hereof by the Customer whether such acceptance is evidenced by the signing of this agreement in writing or by digital acceptance or through the commencement of the use of the services and/or software.
2.4. The Company have the right at any time to change or modify the terms and conditions of this agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on TouchBasePro.com, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of TouchBasePro or its services by the Customer after such notice, shall be deemed to constitute acceptance by the Customer of such changes, modifications or additions.
2.5. The Customer has read and agrees to be bound by the terms and conditions of this Agreement which replaces the provisions of any Customer-drafted purchase order and supersedes all proposals written or oral as well as other communications between the Customer and the Company relating to this Service Agreement.
3. Agreement duration, suspension and termination
3.1. This Agreement shall commence on the ‘Effective Date’, regardless of the ‘Acceptance Date’, and will continue unless terminated before then in accordance with these terms. If no period is specified, all contracts run on a month-to-month basis with a cancellation period of 30 work/business days.
3.2. The Company offers the following period agreements which will be considered as long-term agreements:
3.2.1. 3 Months;
3.2.2. 6-Months (Bi-annually);
3.2.3. 12-Months (Annual);
3.2.4. Agreement period exceeding 12-months
3.3. It is recorded that the following will apply to long term agreements indicated in clause 3.2 above:
3.3.1. If cancelled or terminated before the period term lapsed, 30 work/business days, will be required and payment of a penalty fee of 40% of the remaining agreement value will be payable and due. By signing or agreeing via the Company website to this Agreement, the Customer acknowledges that due to the very nature of the services, these early termination fees are reasonable and accepted;
3.3.2. Will have to be renewed before the termination date of the current agreement in order for the Customer to qualify for any discount or special provision on such account;
3.3.3. Should the agreement not be renewed as specified, the agreement will automatically (without notice) move to a month-on-month term basis in order to avoid interruption of services. In this instance the current year’s standard rates and prices will be applicable to the month-on-month agreement and should the Customer wish to cancel or terminate the month-on-month agreement, a 30 day notice period will apply;
3.3.4. The Company reserves the right to enforce the collection of any unpaid cancellation period charges due in such circumstances.
3.4. It is further recorded that the Company will have the right to terminate the agreement without notification should it become evident that the Customer –
3.4.1. Committed an act or omission that, if it was a natural person, would be an act of insolvency in terms of the Insolvency Act 24 of 1936, as amended;
3.4.2. Instituted Business Rescue Proceedings;
3.4.3. Ceased to operate its business as a going concern; or
3.4.4. Has been provisionally or finally liquidated.
3.5. On Termination of the long term Agreement:
3.5.1. The Company shall de-activate the Customer’s Account and other rights in relation to the Software and the Services; and
3.5.2. Once any outstanding amounts have been paid in full to the Company, the Client shall have access to the Client Data for a period of 14 (fourteen) working days from the date of termination for purposes of retrieval or transfer thereof, where after the Company shall delete the Customer Data and shall only retain Aggregated Customer Data to be used for statistical purposes.
3.6. A Customer account will automatically be suspended without notice by the Company –
3.6.1. If an account has not been active for a period of 3 (three) months (calendar days);
3.6.2. The suspension of such account will not terminate the obligation to pay any fees owed to the Company.
4. Services, packages and rules
4.1. On or before the Effective Date, the Company shall activate the Customer’s Account and shall enable the Customer to create an unique username and password to enable the Customer’s secure access to the relevant Software and Services;
4.2. The Customer may purchase services and or packages describes as –
4.2.1. Pay-As-You-Go Email Credits, Credit Expiry and Required Contents
4.2.1.1. These are prepaid credits. When you buy Pay-As-You-Go, your credits do not expire. You have unlimited database storage on Pay-As-You-Go. A campaign will cost 1 credit per email address + 500 credits per campaign (campaign sending fee).
4.2.1.2. Inactive accounts will incur a data storage fee.
4.2.1.3. Pay-As-You-Go credits are sold on a per-credit basis and do not expire.
4.2.1.4. Unused pre-paid credits are refundable as per the Company’s refund policy;
4.2.1.5. By default, all emails sent via the Company platform must contain the following:
4.2.1.5.1. E-mail Contents –
a.) All relevant subject lines and preheader/ preview text;
b.) All from names and relevant sending email addresses;
c.) An authenticated sending domain (DKIM/ SPF passing before sending, DMARC record set at a minimum standard of p-none);
d.) All recipient email addresses and data (supplied securely upon the Company’s instruction and within the Company’s secure datasharing procedures);
e.) All relevant email components such as email copy, all assets and images, all links and the intended link placement, all prices for any products advertised and any other information relevant to suchcampaign;
f.) All design guidelines, including any required brand guides or CI manuals;
g.) Briefs will only be accepted by the Company if sent in PDF or MS Word format. No emails will be accepted as a brief unless the Company has approved so in writing to the Customer.
4.2.1.5.2. An unsubscribe link that –
a.) allows recipients to permanently unsubscribe themselves from communications from the applicable subscriber lists,
4.2.1.5.3. A clear and accurate identity of the individual or organisation that authorised the sending of the email, along with a legitimate physical address and contact details.
4.2.1.5.4. A permission reminder or statement of the reason that the recipient is receiving the email.
4.2.2. Storage-based subscription package
4.2.2.1. With a storage-based subscription, you have limited audience storage with unlimited sending.
4.2.2.2. You will be charged for the total number of email addresses across all lists that are stored in your account, should email addresses be stored across multiple lists.
4.2.2.3. You are not limited with the number of campaigns you can send. You have access to unlimited campaigns, design tests and automation emails. You will also have access to limited transactional emails on this monthly contract.
4.2.3. Volume-based subscription package
4.2.3.1. With a volume-based subscription, you have unlimited audience storage with limited sending.
4.2.3.2. You will be charged for the total number of emails sent monthly; however, an unlimited number of email addresses can be stored within your account.
4.2.4. Dynamic package upgrades
4.2.4.1. A storage-based package gives you the ability to store up to a certain number of subscribers.
4.2.4.2. To make your sending experience seamless, if you go over the number of subscribers your Package can store, by loading new databases or even if your list grows organically via online sign-up forms, your package will be upgraded straight away to the one that suits your needs best.
4.2.5. SMS purchasing
4.2.5.1. SMS credits are one flat rate across all networks.
4.2.5.2. Unused SMS credits are refundable as set out in our Refund Policy (Clause 9 below).
4.2.5.3. Bounced SMS sends are charged for – it is the obligation of the Customer to ensure it maintains its audience and SMS database lists.
4.2.6. Retainer / Project package
4.2.6.1. Quotes are valid for 30 calendar days;
4.2.6.2. No work will be delivered until the full balance of a quoted and signed-for project has been settled by the Customer. If a deposit is required, no work will begin by the Company until such deposit has been paid by the Customer;
4.2.6.3. Any additional requested work or changes outside the originally agreed scope of the project will be charged for;
4.2.6.4. If the additional work or changes above amount to more than 15% of the initial time requirement of the initial scope, the project will be halted and the Customer will be requoted.
4.2.6.5. Deliverables must be reviewed within 5 (five) working days and either –
(i) approved in writing; or
(ii) written comments and/or corrections sufficient to identify concerns, objections or corrections must be provided to the Company. If no correspondence is received within 5 (five) working days, the deliverables are deemed as accepted.
4.2.6.6. After 90 days with no client feedback or input, the Company will consider a project as completed. All outstanding payment(s) due for such project will become immediately due and payable.
4.2.6.7. In the event of termination, the Company will charge a termination fee to the value of services performed up to the date of cancellation for all work completed by the Company.
4.2.6.8. All design or development work will remain the property of the Company and stand as the Company’s intellectual property until paid for in full.
4.2.6.9. All BasePoints purchased within this agreement will expire after 30 days of non-use, from the date of a project or service’s inception.
4.2.6.10. No BasePoints can be used for any service or project outside of the agreed-upon scope within this agreement.
4.2.6.11. Work for any service will only commence once a completed brief and all required content has been provided to the Company by the Customer.
4.2.6.12. The Company aims to complete all projects as quickly as possible, however, it is understood and agreed to by the Customer that the Company cannot be held responsible for delays caused by outstanding items not provided by the Customer or any party designated by the Customer to provide such items.
4.2.6.13. All campaigns briefed in with the Company will be completed within 48 hours of receipt of all required content from the Customer. Required content for email campaigns are specifically outlined in section 4.2.1 above.
4.2.6.14. Deadlines for all additional services provided by the Company will be communicated to and agreed upon by the Customer prior to the commencement of any service(s) provided by the Company.
4.2.6.15. Any service that requires completion sooner than the Company’s standard deadlines will carry a Rush Fee. The Company will notify the Customer should such a Rush Fee apply and will require written approval from the Customer, or any party assigned by the Customer to authorise such a request, to proceed with such fee.
4.2.6.16. All services completed by the Company will carry a maximum of 3 (three) reverts per campaign, with additional charges being required for further reverts or amendments outside of these confines.
4.2.6.17. All such reverts will be provided to the Customer within 5 (five) business days of receipt of the first draft from the Company.
4.2.6.18. All reverts need to be provided to the Company in writing.
4.2.6.19. All campaigns designated to the Company and being sent by the Company need to be approved, in writing, before any such campaign being sent.
4.2.6.20. If providing services in a platform other than the Company’s native software, it is understood and agreed that the Company accepts no responsibility for the system functionality or failure of any such system. Furthermore, the Company cannot be held responsible for any design or system limitations within any external platform.
4.2.6.21. The Company aims to provide the best support possible, however, when requiring support from any external platform, it is understood that the Company cannot guarantee any turnaround times or issue resolution.
4.2.6.22. It is expressly understood that the Company cannot be held responsible for the delivery or deliverability of any email campaign(s) sent from any external platform or system.
5. Obligations of the Customer
5.1. The Customer
5.1.1. specifically undertakes to ensure that its username, password and banking / credit card details used online are only disclosed to authorised users;
5.1.2. shall ensure that it and the users keep the aforesaid username, password and banking / credit card details used online confidential;
5.1.3. agrees to immediately notify the Company via email (to be sent to support@touchbasepro.com) should the confidentiality of its username and / or password and / or banking details be compromised, in which event the Company shall reset the Customer’s username and / or password accordingly;
5.1.4. understands and accepts that it shall be held responsible and / or liable for all activities conducted by it and costs / charges incurred in relation to its account whether compromised or not due to the Customer’s online or account activities or negligence;
5.1.5. shall notify the Company in writing on or before the Effective Date of the Send Limit and / or Subscriber Limit elected by it in order for the Company to ascertain which pricing band, the Customer shall fall into for purposes of calculating the applicable fees; and
5.1.6. accepts and agrees that the following use (without limitation) shall constitute unauthorised use of the Software and / or Services:
5.1.6.1. Any use which is unlawful, defamatory, objectionable, offensive, harassing, abusive, threatening, harmful, vulgar, obscene, amounts to unlawful unsolicited commercial communications, and / or infringes the rights of third parties;
5.1.6.2. Any use which comprises of or advances unlawful collection and processing of personal information including, but not limited to, email addresses, without consent;
5.1.6.3. Engaging in prohibited data privacy practices, which shall include but not be limited to the use of purchased databases and / or the use of databases whereby the Customer cannot readily prove that the Subscriber / Contact’s consent, as the case may be, to receive email communications was obtained by the Customer;
5.1.6.4. Creating a false identity and / or attempting to mislead the public as to the identity of the sender and / or origin of the communication;
5.1.6.5. Transmission of any data which may infringe on the intellectual property rights of third parties;
5.1.6.6. Any attempts at reverse engineering, gaining unauthorized access to the Company’s Software, or attempting to discover the underlying source code or structure of the Company’s Software;
5.1.6.7. Any attempts at framing, distribution, or unauthorised resale;
5.1.6.8. Transmission of any data which contains viruses, a Trojan horse, worms, and / or other malicious programs;
5.1.6.9. Any attempts, successful or otherwise, to gain unauthorised access to the Software, the Company’s systems, other accounts of the Company, computer systems, or networks connected to the Service, through password mining or any other means; and
5.1.6.10. Engaging in any other activity that could subject the Company to criminal and / or civil liability; and
5.1.7. shall procure and / or provide all the necessary equipment, software, hardware, communications equipment and / or connectivity requirements to enable the Customer’s Account, access to, and use of the Software and Services.
5.2. The Company does not warrant the compatibility of the Software and Services with the Customer’s system and the Customer agrees that it is solely liable for ensuring compatibility, as well as the required ISP and / or telecommunications costs, needed to access and / or utilise the Software and Services.
5.3. The Customer is solely responsible for the accuracy of the Customer Data including the accuracy of the data migrated onto the Account. The Customer shall ensure the correct formatting and / or validation in respect of the Mailing Lists. The Customer accepts and agrees that in instances when the format of the Mailing List and / or content must be a text file, CSV, Excel or XLS file, any other file, (including but not limited to: .DOC, .EXE) may result in errors which may cause delays and / or additional charges.
5.4. The Customer will notify the Company immediately of the termination of employment of any User or of any other requirements for the suspension of any particular User’s access to the Software:
5.4.1. The Company shall then disable such User’s access to the Software upon receipt of such notification and will provide the Customer with written confirmation that the specified User’s access has been terminated or suspended;
5.4.2. In the event of a User misusing or abusing the Software and / or Services the Customer acknowledges that the Company has the right, on written notice, and in its sole and unilateral discretion, to disable the access of any User that the Company determines has abused the Software in any way.
5.5. The Customer shall further ensure that:
5.5.1. All unsubscribe requests received are strictly adhered to and implemented. A Subscriber / Contact who has unsubscribed or who requested not to receive correspondence, as the case may be, shall not receive any further email or SMS communications regardless of whether or not the Customer has unmapped / deleted the applicable Subscriber / Contact / list;
5.5.2. It unmaps / deletes any Subscriber / Contact from the Mailing List/s in the event that it requires such Subscriber / Contact to be entirely removed from the Mailing List and in which event the Subscriber / Contact so removed shall no longer form part of the Subscriber Limit.
5.6. The Parties agree that unless the Customer has attended to unmap / delete a Subscriber / Contact from a Mailing List:
5.6.1. Such Recipient / Subscriber / Contact shall still form part of the Subscriber Limit and will be charged for accordingly regardless of whether the Recipient / Subscriber / Contact has unsubscribed from the Customer’s Mailing List/s; and
5.6.2. The Client shall still have access to archive reports and statistics in relation to previous email communications sent to the above-mentioned Recipient / Subscriber / Contact, as well as to the record that such Recipient / Subscriber / Contact unsubscribed for a reasonable period.
5.7. The Customer will ensure that:
5.7.1. Email campaigns sent from its account, by or on behalf of its company, do not generate a number of complaints in excess of industry norms. If your complaint rate exceeds industry norms, the Company may take action to prevent or repair damage to the sending reputation of our sending infrastructure, including suspending your account.
5.7.2. f the Company sends you a notification regarding excessive spam complaints, you must respond promptly and act in good faith by participating in the creation and/or execution of any remedy. If no remediation measures are implemented in accordance with the Company’s recommendations, or your account continues to experience high complaint rates (as determined by the Company in its reasonable discretion), the use of the platform may be suspended until the issue is resolved or until the end of the period specified by the contract.
6. Obligations of the Company
6.1. For the duration of the Agreement the Company shall:
6.1.1. maintain the Software in a normal operating condition;
6.1.2. provide maintenance services as agreed, save for the Customer’s account being paid up to date where applicable;
6.1.3. update and test the Software as reasonably required;
6.1.4. backup file servers and Customer’s data;
6.1.5. safely store the Customer’s Data;
6.1.6. ensure that the necessary degree of technical skill and care is applied that could be expected from a reasonable service provider in the position of the Company; and
6.1.7. ensure that all of its employees and representatives performing the Services are suitably trained and professionally managed by it.
7. Software Usage
7.1. The usage of the software is provided to the Customer in the sole discretion of the Company;
7.2. The Customer accepts and agrees to be bound by the terms of the usage of the software offered on its website and / or any agreement with the Company;
7.3. The Company shall retain all title, copyright, and other intellectual property rights in the Software. For avoidance of doubt, the Parties agree that the Software is being provided for authorised usage, not sold, to the Customer;
7.4. The Client agrees that the input of data and the accuracy and adequacy thereof, is under the exclusive control of the Customer in its capacity as the Responsible Party. Any use by the Customer of the data output or any reliance thereon, is the sole responsibility of the Customer;
7.5. The Company reserves all rights in the Software not explicitly granted to the Customer herein.
7.6. All new accounts will be reviewed by the Company during the Compliance Approval process. The Company will request specific information about Permission practices and email marketing activities prior to allowing email campaigns to be sent on the platform. If insufficient information and documentation is provided, the Company may restrict access and usage, or terminate the account.
7.7. Except as expressly provided herein The Company does not warrant that the Service will provide the Customer with the exact form of performance the Customer may have required.
7.8. The Company will provide its best endeavours to give a continuous, fault-free service to the Customer. The Customer however acknowledges that faults in the service may occur but agrees that such faults are in the nature of the service provided and will not constitute cause for a breach.
8. Invoicing and Payment
8.1. The Company shall render the Services in accordance with the rates set out per product or as confirmed by the Company. In this regard, it is specifically agreed that:
8.1.1. Any amounts set out are exclusive of VAT, unless specifically indicated on the invoice as included;
8.1.2. Terms of package and client specific payments will be reflecting in the Customer’s invoice/s if the services does not form part of a Pay-As-You-Go package;
8.1.3. The Company reserves the right to change its prices from time to time at its sole discretion, with reasonable notification to the Customer. This includes a mandatory annual price increase, upon notification to the Customer, which is necessary to accommodate for inflation and increased supplier costs carried by the Company;
8.1.4. Payment for services shall be due irrespective of whether or not the Customer utilises the services. On termination of services or an agreement, the Company will provide its final billing / invoice after a period of 30 work/business days from date of termination or cancellation in order to ensure all services provided or used during the previous month/s have been included and invoiced. The Customer agrees that such invoice will be paid without set-off or delay;
8.1.5. The payment of all monthly recurring charges and for any services of the Company shall be due irrespective of whether or not the Customer utilises the Service subscribed for, save for Pre-paid credits which may carry over until utilized (SMS has an expiration of twelve months);
8.1.6. The Company works strictly on a cash on delivery (COD) model for all new Customers, which model will include any prior Customers of the Company who have not been invoiced within six (6) months of a new service order being signed.
8.1.7. To qualify for a credit facility and extended payment term outside of the standard cash-ondelivery policies, a credit application needs to be submitted by the Customer, and approved by the Company, and before such facility becomes available to the Customer, a prerequisite waiting period of 3-months of uninterrupted cash-on-delivery terms will need to be adhered to.
8.1.8. By agreeing to the Company’s credit application process, the Customer consents to a credit check to ascertain the viability of a credit term being afforded to the Customer.
8.1.9. Upon a credit application being approved, the payment terms is 30 days after date of invoice. If payment for any invoice due in 30 days remains due for more than seven (7) days after the payment date due, all services will be suspended due to breach of the agreement and all access will be revoked until such payment has been received, which will be in the sole discretion of the Company and will not be seen as breach of contract.
8.1.10. Any Customer who requires alternate payment terms will require permission in writing from a duly authorised signatory at the Company and will have to follow the Company’s credit application process.
8.1.11. The Company will under no circumstances accept any special payment terms exceeding payment 30 days from date of invoice.
8.1.12. Should the Company in writing accept and approve an account on a 30 days payment basis (from the date an invoice was issued), an activation fee of 50% of the contracted value pertained in this agreement, or associated agreements, will be due for the first three (3) months of service, paid upfront monthly on the due date stated on the associated invoice, before any services commencing for the Customer.
8.1.13. The Customer will be invoiced for all SMSs Sent if such package does not form part of a Pay- As-You-Go package;
8.1.14. Any accounts outstanding over 30 (thirty) days will be charged interest at the Prime Rate +2% (two percent);
8.1.15. If the Customer requires a decrease in its Subscriber and / or Sender Limit, the Company reserves the exclusive right to approve such at its sole discretion. If approved, the Company will require 30 work/business days written notice to this effect.
8.1.16. If the Customer requires an increase in its Subscriber and / or Sender Limit, it must provide written notice to the Company, alternatively purchase PAYG credits. If notice is not received and the Customer exceeds its Recipient / Subscriber and / or Sender Limit without purchasing PAYG Credits, access will be restricted until such notice is received, processed, and an additional fee charged; and
8.1.17. Only the event of a Software and / or Service malfunction occasioned solely by the gross negligence of the Company, shall be cause for the Company to, in its sole discretion, to allow a credit or refund.
8.2. The Company shall send invoices monthly, in advance, for Subscriber packages/retainers. Additional PAYG packages will be allocated immediately on the receipt of payment;
8.3. It the Costumer does not make use of a PAYG package but a Subscriber packages/retainers, the Customer shall attend to payment of the Fees within 30 (thirty) days of the date of invoice without deduction or set off, via debit order or electronic funds transfer (“EFT”);
8.4. The Company reserves the right in its sole discretion, without prejudice to any of its other rights as contained in this Agreement, to suspend the Services and the Customer’s access to the Software in the event that the Customer fails to effect timely payment of the Fees or any portion thereof and until such time as payment is received in full by the Company. In that event, the Company shall be entitled in its sole discretion to charge a reasonable re-activation fee to which the Customer agrees.
9. Refund Policy and Terms
9.1. The Company Refund Terms is based on the following to which the Customer agrees –
9.1.1. For credit-based sales (only applicable on non-discount sales):
9.1.1.1. The Company offers a no-risk refund policy on prepaid credits.
9.1.1.2. If you are not satisfied with the Company’s service, we will gladly refund any unused credits to the Customer’s account, less any banking or transactional fees that are applied. If the Company would like to have your credits refunded, please send an email to our support department (support@touchbasepro.com). Please include the Customer’s preferred username, email address and the reason for wanting a refund. Please take note that refunds may take up to 7 (seven) business days to be processed.
9.1.2. For all Services and Monthly Subscriptions (only applicable on non-discount sales):
9.1.2.1. Monthly subscriptions and services completed are not refundable as they have already been heavily discounted or rendered to the Customer.
9.1.2.2. If on a monthly Subscription contract agreement (excluding long-term agreements that exceed 3-months): You can cancel your monthly subscription at any time, but please note that we require 30 (thirty) business days’ notice of such. Any additional discount afforded to you on a contract term longer than month-to-month will be forfeited and payable.
9.1.2.3. If any bi-annual (6-month), annual (12-month) Agreement, or Agreement with a period exceeding 12 months, is cancelled or terminated before the Agreement’s end date or full period, and paid for upfront, a refund of any amount less one full months’ notice and 40% of the remaining Agreement value, will be paid.
9.1.3. Exceptions to the Refund terms include:
9.1.3.1. The Company may require outstanding amounts to be settled or charge a re-activation fee in the event that an account was disabled due to non-payment, untimely authorisation for payment or any other breach of this agreement.
9.1.3.2. The Company, at its sole discretion, may immediately suspend your access to the services without refund, if the Company believes that you are in contravention of its permission-based policies or the Anti-Spam Policy, this Agreement or any applicable laws.
9.1.3.3. If these services are suspended in accordance with the above, any Pre-Paid credits or Subscription contract fees paid are forfeited and no refunds are applicable.
9.1.3.4. In the instance where a sale or contract was done based on tiered pricing sale/s or agreement/s. No refund will be due and payable and the Customer will forfeit any and all credits not used, unless the Company in its sole discretion and without prejudice to any of its other rights consider to refund some or all credits.
10. Personal information and privacy
The Company is committed to protecting the privacy of individuals who interact with our digital communication services. This Privacy Policy outlines how the Company collect, use, disclose, and protect personal information in compliance with the Protection of Personal Information Act (POPIA) in South Africa and under various other global data protection and privacy standards such as the General Data Protection Regulation (GDPR) and CAN-SPAM, among others if and when applicable.
10.1. Obligations of the Company
10.1.1. The Company shall and may –
10.1.1.1. only Process Personal Information in accordance with applicable laws, in terms of this Agreement and in accordance with any instructions, requirements or specific directions of the Customer;
10.1.1.2. collect the below types of personal information for the purpose of providing its email marketing services:
a. Contact information (name, email address, phone number, etc.)
b. Demographic information
c. Communication preferences
d. Information provided voluntarily by individuals through forms or surveys
10.1.1.3. collect personal information directly from individuals or third-party sources with appropriate consent or where otherwise permitted by law.
10.1.1.4. Use personal information for the following purposes:
a. Providing email marketing and other digital communication services
b. Personalising and improving our services
c. Communicating with individuals about our services, updates, and promotions
d. Analysing and enhancing user experience
e. Complying with legal obligations
10.1.1.5. Use the Customer’s your data to:
a. To make the site easier for you to use by not having to enter information more than once.
b. To help you quickly find software, services or information.
c. To help us create content most relevant to you.
d. To alert you to product upgrades, special offers, updated information and other new services from the Company.
10.1.2. not disclose or otherwise make available the Personal Information to any third party, other than is strictly necessary in order for the Company to carry out its obligations pursuant to this Agreement, unless the Customer has provided its prior written permission to do so to the Company;
10.1.3. ensure that all Staff and any other persons that have access to the Personal Information are bound by appropriate and legally binding confidentiality and non-use obligations in relation to the Personal Information on substantially the same terms and conditions as set forth herein;
10.1.4. take appropriate, reasonable, technical, and organisational measures to ensure that the integrity of the Personal Information in its possession or under its control is secure and that such Personal Information is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure, or access by having regard to:
10.1.4.1. any applicable requirement in law, stipulated in appropriate industry rules or in codes of conduct or stipulated by a professional body governing the Company;
10.1.4.2. generally accepted information security practices and procedures which apply to the Company’s business and to the Customer, as may be appropriate to discharge its obligations in terms of this Agreement; and
10.1.4.3. appropriate, reasonable, technical, and organisational measures to ensure that the Personal Information in its possession or under its control remains available to the Customer as and when it may be required.
10.1.5. the Company reserves the right to make general credit reference enquiries about the Customer and to check the correctness of the information that has been supplied.
10.1.6. The Customer warrants and represents that all information supplied, is accurate, correct and complete;
10.1.7. the Company will use the Customer’s Data strictly in accordance with the relevant Data Protection Legislation.
10.1.8. The Customer acknowledges that individuals have the following rights regarding their personal Information:
a. Right to access and rectify personal information;
b. Right to request deletion of personal information;
c. Right to object to the processing of personal information;
d. Right to data portability.
10.1.9. Requests to exercise these rights can be made through the contact details provided under section 19.5 below.
10.2. Notification of Personal Information Security Breach
10.2. The Company shall:
10.2.1. notify the Customer as soon as reasonably possible as it becomes aware of or has reasonable grounds to believe that the Personal Information of a Data Subject has been accessed or acquired by an unauthorised person and take all appropriate steps to limit the compromise of Personal Information and to restore the integrity of the affected information systems as quickly as possible;
10.2.2. as soon as reasonably possible thereafter, the Company shall assist the Customer to report all relevant facts relating to the compromise; and
10.2.3. provide the Customer with details of the Personal Information affected by the compromise, including but not limited to, the identity of Data Subjects, the nature and extent of the compromise, and, where possible, details of the identity of the unauthorised persons who are known to or who may reasonably be suspected of, having accessed or acquired the Personal Information.
10.3. Disclosure or Processing required by Law, Regulation or Court Order
10.3.1. In the event that the Company or any third party to which the Personal Information has been disclosed pursuant to this Agreement, is required by law, regulation or court order, to disclose or process any Personal Information, the Company will:
10.3.1.1. advise the Customer thereof prior to disclosure or Processing, if possible. If it is not possible to advise the Customer prior to disclosure or Processing, the Company shall advise the Customer as soon as practicable after such disclosure or Processing;
10.3.1.2. take such steps to limit the extent of the disclosure or Processing insofar as it reasonably, practically and legally can;
10.3.1.3. afford the Customer a reasonable opportunity to intervene in the proceedings; and
10.3.1.4. comply with the Customer’s requests as to the manner and terms of any such disclosure or Processing.
10.3.2. It is herewith agreed that the Company may disclose personal information to third parties under the following circumstances:
− Service providers who assist us in operating our business, while within the confines of processing best practices and with sufficient notification as provided for under POPIA, GDPR and other data privacy regulations;
− Legal obligations or as required by law enforcement;
− With the individual’s or data subject’s consent.
10.4. Cross Border Transfer of Personal Information
10.4.1. The Customer specifically consents to the trans-border flow of the Personal Information of the Data Subjects. The purpose if necessary or required of which includes, but is not limited to data hosting and
storage and is necessary in the performance of the Agreement and further is in the interests of the Data Subject.
10.4.2. The Company agrees to comply strictly with the Customer’s express instructions for cross-border transfers of any Personal Information, alternatively as may be provided in this Agreement.
10.5. Personal Information Protection
10.5.1. The Customer warrants that it will take all reasonably practicable steps, as required by law, to ensure that all Personal Information of its Subscribers and Contacts, submitted by it to the Company, are complete, accurate, up to date, relevant, and not misleading in any way.
10.5.2. Each Party to this Agreement undertakes to use its reasonable endeavours to procure that any of its third parties comply with the Data Protection Legislation and all other applicable data-protection legislation and regulations in connection with the performance of its obligations and exercise of its rights under this Agreement.
10.5.3. With respect to any Processing under this Agreement, each Party to this Agreement shall (and shall procure that any of its third parties or further operators) take appropriate security, technical, and
organisational measures against unauthorised or unlawful processing of Personal Information supplied to it by another Party to this Agreement and against accidental loss or destruction of, or damage to, that Personal Information in accordance with the Principle Seven (the “Seventh Principle”) as set out in the POPIA.
10.5.4. Each Party to this Agreement undertakes:
10.5.4.1. and acknowledge that during the provision of the service, confidential information may be exchanged between them and each of them acknowledges the existence of such confidential information and undertakes to keep same confidential;
10.5.4.2. not to use or knowingly permit any third party to use, or have access to, the Personal Information for any purpose other than as is expressly permitted by this Agreement;
10.5.4.3. that it shall not use Personal Information held by it pursuant to this Agreement for any purpose that is inconsistent with those purposes notified to the relevant Data Subject on or before the time of collection of that Personal Information;
10.5.4.4. understands that no method of digital transmission or storage is entirely secure. The Company cannot guarantee the absolute security of personal information, however, it is understood that the Company takes all possible and reasonable measures to ensure data security, integrity and compliance with all current data regulations and laws.
10.5.4.5. to promptly inform the other Party of any actual or suspected unauthorised access, use, or other abuse of the Personal Information of which it or any of its data operators, agents, or contractors becomes aware; and
10.5.4.6. at its cost, to provide, at the other Party’s request, all reasonable assistance to the requesting Party in relation to the preparation and presentation of the relevant information to the Regulator or as otherwise required by the applicable legislation for the purpose of prosecuting those persons responsible for the incident of unauthorised access, use, or abuse, and for any legal actions that the requesting Party may bring against those persons responsible for the unauthorised access, use, or abuse;
10.5.4.7. the Company will never sell or give away or make available the name, mail address, phone number, email address, credit card number or any other information that is private or deemed to be personal information to anyone;
10.5.4.8. the Company will never send communications to your proprietary contact lists or databases.
10.6. Retention and Destruction
The Company shall render all the Services in accordance with this Agreement or instructions received from the Customer, including retention and destruction of Personal Information. Should the Customer fail to give instructions as to the return or destruction of Personal Information after the termination of this Agreement, the Company shall be obliged to destroy and/or de-identify the Personal Information after 30 (thirty) days.
11. Spam policy
11.1. The Company does not allow the sending of Spam or unsolicited commercial emails.
11.2. The data imported into the Customer’s system must at least comply with one or more of the following:
11.2.1. Contacts have opted-in from the Customer’s website or in writing;
11.2.2. Contacts have given the Customer permission to send them email and / or SMS communication;
11.2.3. the Customer can verify where it acquired the data (have proof of data source); and
11.2.4. Contacts are existing customers/clients of the Customer, alternatively, have transacted with the client/customers in the preceding 6 (six) months.
11.3. The Customer may not import a Contact’s information if;
11.3.1. It was purchased, rented, or acquired from a third-party list of email addresses; or
11.3.2. The Contact/s email addresses have been scraped or “copied and pasted” from websites (or to recipient email addresses otherwise programmatically obtained from any physical or electronic source) such as newsgroups, or purchased, loaned, or rented lists;
11.3.3. If the Customer cannot proof to and provide to the Company, on request, that they have retained the permission records;
11.3.4. The topic exceeds the scope of the topic the recipient has given the Company permission for;
11.3.5. Such permission was not given to the Company directly – permission are not allowed to be transferred to the Company from another individual or entity save for where there is explicit written permission from such individual or entity that such transfer may take place.
11.4. If the Customer is unsure of the integrity of the data, they must inform the Company before proceeding to communicate to these Contacts.
11.5. Abuse of this bulk messaging service can result in the Customer’s account being suspended or closed and can result in a fine being levied against the Company depending on the severity of abuse, and damages incurred by the Company.
11.6. There are some list collection methods, sending practices, and models of businesses which are irreconcilably at odds with the Company’s Permission Policy, or which represent untenable risk to the reputation of our sending infrastructure. By agreeing to the Company’s Anti-SPAM policy, you may not:
11.6.1. mail to any recipients obtained from a third party (unless such third party specifically obtained Permission from the Contact for Customer to mail them):
a. mail to co-promotion lists, where more than one potential sender is given access to email addresses collected without the recipient’s wilful, sender-specific consent;
b. use the Company to administer illegal contests, pyramid schemes, chain letters, multilevel marketing campaigns, or otherwise conduct any illegal activities; or
c. take known demographic information and append it to information Customer obtains from a third party for the purpose of emailing an individual who has not otherwise provided Permission as required by this Anti-Spam Policy.
11.7. The below are deemed to be actions which exhibit non-compliance with the Company’s Anti-SPAM policy and are referred to as spam offences. The Company, in its sole discretion, reserves the right to take appropriate action against any Customer Account that exhibits unacceptable spamming behaviour.
11.7.1. Offences may include any of the following:
a. A recipient of a campaign complains directly or indirectly to our abuse department that said email is unsolicited;
b. The failed delivery count for any individual campaign is above twenty percent of the total amount of messages sent in that campaign;
c. The total unsubscribe count is greater than ten percent of the total amount of messages sent in that campaign;
d. You are unable to provide clear and concise proof of the permission given to you by your recipients.
11.8. The Company may, in its reasonable discretion, remove any content, suspend, or terminate (without refund) use of the platform for any actual breach of this Anti-Spam Policy at any time. For clarity, removal, suspension, or termination pursuant to this clause will not terminate the obligation to pay fees owed to the Company.
12. Interception, Monitoring and Offences
12.1. If the Company receives a complaint, it is required by law to investigate it; and
12.2. In the course of certain support services, the Company may be required to login to the Customer’s Account, which it will do with the Customer’s consent.
12.3. The Company may then, if necessary and in accordance with prevailing legislation, be required to intercept, block, filter, read, delete, disclose, and / or use the Customer’s Data and communications sent and / or received to / by the Customer’s account. The Customer agrees and consents to this and accepts that this will satisfy the ‘writing’ requirement specified in the Regulation of Interception of Communications Act 70 of 2002 (“RICA”).
13. Intellectual Property
13.1. Intellectual property in and to the Software and the Services, including, as applicable, processes and methodologies, source codes, and other proprietary interests will be and shall remain vested in the Company for the duration of this Agreement and thereafter.
13.2. The Company retains the right, title, and interest to all and / or any design, patent, and / or copyright in relation to the Software and the Services whether registered or not. Same includes the name “TouchBasePro” and any other branding or intellectual property associated with the Services and / or the Software, regardless of whether or not same have been registered or patented. Such designs, patents, or copyrights shall not be limited to any particular area or country and the Company shall have the right to alter, modify, adapt, or change any design, process, or method of any patent and / or copyright in relation to the Software and the Service at its sole discretion.
13.3. The Client shall not copy, print, or publish any of the Company’s methods, processes, or procedures relating to the Software and Service, nor shall the Customer produce or attempt to produce any product that performs materially the same functions as the Software and Service.
13.4. It is specifically recorded that all Intellectual Property rights of any nature whatsoever whether capable of registration or not (and whether registered or not) in the Customer’s name, trademarks, products, logos, images, and all other matters relating to the Customer shall remain the sole Property of the Customer and the Company shall not acquire any rights in relation to such Intellectual Property.
13.5. Any contact lists or databases that the Customer upload remain its intellectual property.
14. Disaster Recovery
Incidents that cause major power / system outages and internet disconnections are of the highest priority, and The Company shall ensure that the Customer’s use of the Software, as well as the Customer Data, is factored into the Company’s overall Disaster Recovery Plan. A copy of the Customer Data hosted by the Company shall be replicated to dedicated servers regularly.
15. Indemnities
15.1. The Customer agrees to indemnify, hold harmless and to co-operate fully, as is reasonably required, in the defence of any claim against the Company in terms of any and all claims, liabilities, damages, costs and expenses arising from or relating to:
15.2.1. the Customer’s non-compliance with:
15.2.1.1. this Agreement;
15.2.1.2. any relevant Data Protection Legislation, regardless of whether any such loss or damage occurred as a result of a force majeure event; and
15.2.2. any content that was approved or deemed to have been approved by the Customer and that was actually published by the Customer via the Company, noting that Company does not screen or edit the Customer’s content without consent.
16. Limitation of Liability
16.1. Neither Party, nor its parent companies, subsidiaries, or affiliates will be liable to the other for any indirect, direct, punitive, special, incidental, or consequential damage in connection with, or arising out of, this Agreement (including loss of business, revenue, profits, use, data, or other economic advantage), however so arising and even if that Party has been advised of the possibility of such damage, save as expressly provided to the contrary in this Agreement.
16.2. The Company specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, non-infringement, and accuracy. The Company does not warrant that the Product will be error free and operate without disruption. The Company makes no representations or warranties with respect to any Third-Party applications.
16.3. The Company’s entire liability under this Agreement will be limited to the amount actually paid by the Customer during the 3 (three) months prior to the liability arising.
16.4. The Customer accepts that it should take all reasonable measures to protect its data with the Company, which data includes but is not limited to its customer account, bank account and/or credit card details used online or manually. The Customer hereby acknowledges that any access to such account information, data, or any password(s) used in terms of this agreement, shall remain the responsibility of the Customer. The Company will not be liable for any claims or damages suffered (whether directly or indirectly), resulting from the Customer’s negligent actions, password sharing, unsecured account access or any other means whereby access has been gained to the account information of the Customer.
16.5. The Service may be accessed throughout South Africa and overseas. The Company makes no representations that the Services comply with the laws (including intellectual property laws) of any country outside South Africa. If you access the Services from outside South Africa, you do so at your own risk and are responsible for complying with the laws in the place where you access the site.
16.6. The Customer acknowledges that it is imperative for it to comply with all prevailing laws and regulations relating to the Service. If for any reason whatsoever, the Customer has been the cause of a breach of the laws and regulations, the Company shall have the right to recover whatever damages it may suffer directly from the Customer. This strictly includes any breach or contravention of any and all of the Company’s Terms, Conditions and Policies.
16.7. The Company will not be liable for any damages, whether contingent or otherwise, which the Customer may claim arose from its receipt of the services from The Company.
17. Assignment
Neither of the Parties may assign this Agreement or any of the rights and obligations under it without the prior written approval of the other Party.
18. Variation
Any variation of this Agreement requested by the Customer shall be of no force and effect unless agreed to in writing and signed by both Parties to this Agreement.
19. Breach
19.1. If the Customer breaches any provision of this Agreement, or any subsequent Terms and Conditions set out by the Company, the Company shall be entitled to terminate the Agreement and suspend the Service to the Customer with immediate effect.
19.2. A certificate issued by any manager or director of the Company, whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness of the Customer to the Company, provision of the Services to the Customer, or any other fact shall constitute prima facie proof of such indebtedness or delivery or the Company’s ownership or any other fact.
19.3. The Customer shall be liable for the Company’s legal fees in the event of the Company enforcing or defending its rights hereunder on an attorney and own client scale, including Counsel’s fees on brief, tracing agent’s fees and collection charges.
19.4. The Customer chooses its physical address as set out in the account information supplied during the online registration process on the website as its domicilium citandi et executandi for all purposes under this Agreement. The Customer may change its domicilium by furnishing the Company with 7 (seven) work/business days written notice of its new physical address.
19.5. All notices shall be sent to The Company address and email as follows:
• NAME: TouchBasePro (Pty) Ltd
• ADDRESS: Corner William Nicol and Jan Smuts, Hyde Park Lane Office Park, Ground Floor, Sandton, Johannesburg, 2196 (South Africa)
• CONTACT PERSON 1: Greg Phillips (CEO)
• EMAIL ADDRESS: greg@touchbasepro.com
• CONTACT PERSON 2: Francois Groenewald (CFO)
• EMAIL ADDRESS: francoisg@c2group.co.za
20. Dispute Resolution
20.1. Any dispute arising in connection with this Agreement shall first be referred to the respective legal representatives of the Parties, who shall attempt to resolve the dispute within 14 (fourteen) days from
the date on which the dispute was referred to them.
20.2. In the event of there being a dispute relating to or arising out of this Agreement, including regarding the scope, effect, validity, implementation, execution, interpretation, rectification, termination, or cancellation of this Agreement, has not been resolved in accordance with the above, then such dispute shall be finally resolved on the terms as provided for below:
20.2.1. The Parties agree and submit to the jurisdiction of the Magistrates’ Court. Any costs incurred by the Company in the collection of any overdue accounts, legal costs, tracing fees, and the like shall be recovered from the Customer.
20.2.2. Nothing herein contained shall be deemed to prevent or prohibit a Party from applying to any appropriate Court for an interdict, urgent relief, or for judgment in relation to a debt or claim that is undisputed.
20.2.3. If the Customer has reason you believe the Company has not adhered to the principles of the agreement or if you require any information or amendment to your data, please notify the Company by email at support@touchbasepro.com. Use the words ‘Privacy Policy’ in the Subject line.
21. Legislation
This Agreement shall be governed by and interpreted in accordance with all applicable South African law.
22. Warranty of Authority
The Customer will ensure that its representative who signs this Agreement on behalf of the Customer is duly authorised to do so and in so doing binds the Customer on the terms set out herein. The representative signing this Agreement on behalf of the Customer shall be, at least, a director or a member of a formal management committee of the Customer. For avoidance of doubt the Customer will henceforth be prohibited from relying on the defence of lack of Authority.
23. General Provisions
23.1. This Agreement constitutes the entire agreement between the parties. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation unless it is contained herein.
23.2. No amendment of this Agreement and extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding unless recorded in a single document signed by both of the parties.
23.3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of the Company’s rights hereunder.
23.4. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
23.5. The Customer hereby orders from the Company the Services described herein for the Initial Term specified in this terms and conditions and selected services. This terms and conditions together with any amendments to the Full Terms and Conditions of Service Agreement attached hereto when signed by the Customer will form a valid contract when accepted by an authorised representative of the Company contingent upon credit approval by the Company.
23.6. The Customer has read and agrees to be bound by the terms and conditions of this Agreement which replaces the provisions of any Customer-drafted purchase order and supersedes all proposals written or oral as well as other communications between the Customer and the Company relating to this Service Agreement.