General Terms and Conditions

1. General

1. The Yoummday (Pty) Ltd General Terms and Conditions for the Provision of Services ("Terms") shall apply exclusively to the provision of call center, management of phone agents and related services ("Services") by Yoummday (Pty) Ltd (Pty) Ltd South Africa ("Yoummday (Pty) Ltd") to the customer ("Customer"). The Customer’s additional or different terms, in particular the Customer's general terms and conditions, shall not apply, irrespective of whether or not such terms have been expressly rejected by Yoummday (Pty) Ltd or whether Yoummday (Pty) Ltd, having knowledge of such terms, effects contractual performance without reservation.
2. Subject to Clause 1.3, no change or modification of the Terms shall be valid or binding on either party unless made in writing. This also applies to the cancellation of this written-form requirement.
3. Yoummday (Pty) Ltd reserves the right to amend the Terms from time to time in its sole discretion upon giving the Customer reasonable prior notice thereof.

2. Offers, Individual Transactions

1. Offers by Yoummday (Pty) Ltd are non-binding unless expressly designated as binding by Yoummday (Pty) Ltd in writing, in which case the offer will be binding for two weeks.
2. Orders by the Customer shall only become binding upon acceptance in writing or in electronic form (including fax and email) by Yoummday (Pty) Ltd. Yoummday (Pty) Ltd may accept orders within two weeks from their receipt.
3. Individual transactions may be concluded by order and acceptance, by means of a service letter, by means of a service sheet or otherwise in writing or in electronic form (including fax and email).
4. Yoummday (Pty) Ltd is not obliged to accept orders by the Customer or to conclude any (minimum number) of individual transactions.

3. Services

1. Unless agreed otherwise in an individual transaction, the Services include: (a) selection, training, provision and support of the agreed number of phone agents ("Agents") with appropriate skills; (b) set up of the agreed number of Agent and Customer accounts; (c) configuration of the technical infrastructure; (d) handling of the incoming phone calls in a friendly and competent manner and pursuant to the reasonable standards of the Customer; (e) provision of call reports in intervals reasonably requested by the Customer (e.g. daily); (f) if agreed, processing of the incoming emails in a friendly and competent manner and pursuant to the reasonable standards of the Customer; (g) quality management; and (h) invoicing of the Services.
2. So far as the Services are not specified in an individual transaction, Yoummday (Pty) Ltd will provide the Services in its reasonable discretion.
3. Yoummday (Pty) Ltd may replace Agents at any time in its reasonable discretion, also taking into account Yoummday (Pty) Ltd's overall capacity and strategy planning.
4. The Services will be provided during the agreed periods and times.
5. The parties may vary the number of Agents, Agent and Customer accounts as well as the periods and times in writing or in electronic form (including fax and email) at any time.

4. Fees, Terms of Payment

1. The Customer shall pay to Yoummday (Pty) Ltd the agreed fees. Fees for phone calls will be charged at minute intervals.
2. All fees are understood net in ZAR. Applicable sales tax, VAT or any other applicable taxes and levies will be invoiced separately and shall be borne by the Customer.
3. All fees are subject to reasonable adjustments by Yoummday (Pty) Ltd if (a) the calculation basis provided by the Customer (e.g. anticipated average processing time of emails) does not prove to be true or, (b) after the conclusion of the individual transaction, cost changes occur, in particular due to price increases by the Agents or other sub-suppliers. Yoummday (Pty) Ltd will inform the Customer of any fee adjustments in advance if possible.
4. Recurring fees will be invoiced on a monthly basis. All fees will be invoiced at the end of the month in which the respective Services were provided.
5. Payments shall be made (a) in ZAR; (b) within 30 days after receipt of the invoice; (c) without any deductions (e.g. of bank or transfer charges); and (d) to a bank account designated by Yoummday (Pty) Ltd.
6. Yoummday (Pty) Ltd reserves the right to change payment terms (e.g. switch to prepayment) or to discontinue performance under an individual transaction at any time in case, in Yoummday (Pty) Ltd’s opinion, the Customer’s financial condition or previous payment record so warrants.
7. Payment is effected when the amount invoiced is credited to the bank account designated by Yoummday (Pty) Ltd. If the Customer does not pay an amount when it is due, the Customer shall pay interest at the amount of 12% per annum.

5. Service Levels, Disclaimer of Warranties

1. In case Yoummday (Pty) Ltd does not comply with an agreed service level for a Service ("Affected Service"), the fee payable by the Customer for the Affected Service will be reduced as follows: (a) the fee will be reduced at one percent for each one percent for which Yoummday (Pty) Ltd falls below the agreed service level; (b) the fee will be reduced on a pro rata-basis for the time during which Yoummday (Pty) Ltd fails to comply with the respective service level; and (c) the reduction will be calculated on the basis of the net fee for the Affected Service. In case the Customer has paid the respective fee to Yoummday (Pty) Ltd, an amount equaling the reduction will be credited to the Customer's account.
2. EXCEPT AS STATED IN CLAUSE 5.1, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUMMDAY (PTY) LTD DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUMMDAY (PTY) LTD ALSO LIMITS THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES OR CONDITIONS.

6. Limitation of Liability

1. IN ADDITION TO THE WARRANTY DISCLAIMERS ABOVE, IN NO EVENT WILL YOUMMDAY (PTY) LTD BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA, LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM, OR RELATING TO AN INDIVIDUAL TRANSACTION OR THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF YOUMMDAY (PTY) LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. YOUMMDAY (PTY) LTD'S TOTAL CUMULATIVE LIABILITY ARISING FROM, OR RELATED TO AN INDIVIDUAL TRANSACTION OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY PAID FOR THE SERVICES BY THE CUSTOMER DURING THE PERIOD OF TWELVE MONTHS PRECEDING THE DAMAGING EVENT.
3. THE AGENT'S CONDUCT OR RESPONSE MAY NOT BE ADEQUATE OR HELPFUL, AND THE INFORMATION PROVIDED BY THE AGENTS MAY BE INCORRECT OR NOT CURRENT. YOUMMDAY (PTY) LTD DOES NOT ASSUME ANY REPRESENTATION, WARRANTY OR GUARANTY IN THIS RESPECT. THE CUSTOMER USES THE SERVICES AT ITS OWN DISCRETION AND RISK.
4. THE CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THE RESPECTIVE INDIVIDUAL TRANSACTION WOULD BE SUBSTANTIALLY DIFFERENT.
5. THE FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY; (II) FRAUDULENT MISREPRESENTATION; OR (III) YOUMMDAY (PTY) LTD'S LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

7. Force Majeure

1. "Force Majeure Event" means any circumstance not within a party's reasonable control including, without limitation (a) acts of God, flood or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, riots, war, armed conflict; (d) nuclear, chemical or biological contamination; (e) any law or any action taken by an authority, including without limitation imposing an export or import restriction, sanction or embargo, or that authority failing to grant a necessary license; (f) collapse of buildings or fire; (g) labor disputes, strikes or lockouts; or (h) any energy shortages, system outages, non-performances by sub-suppliers or business or transport disruption.
2. With the exception of payment obligations, if a party is prevented or delayed from or in performing any of its obligations by a Force Majeure Event, it shall not be in breach or otherwise liable. The time for performance of the respective obligations shall be extended accordingly. The affected party will provide notice to the other party of the commencement and the anticipated end of any such circumstances at the earliest possible date.
3. Where the Force Majeure Event continues for eight weeks or longer, each party shall be entitled to rescind the affected individual transaction.

8. Obligations of the Customer

1. The Customer shall provide to Yoummday (Pty) Ltd all information agreed in an individual transaction and all other information necessary for the provision of the Services (e.g. reasonable standards for phone calls and email processing) in due course. WITHOUT PREJUDICE TO ANY OTHER LIMTIATION OF LIABILITY PURSUANT TO THE TERMS, SO FAR AS THE CUSTOMER DOES NOT PROVIDE THE RELEVANT INFORMATION, YOUMMDAY (PTY) LTD SHALL NOT BE LIABLE FOR NOT PROVIDING THE SERVICES.
2. The Customer is responsible for adequately protecting its systems and backing-up its data.
3. The Customer warrants complying with all applicable laws and regulations, including without limitation all applicable data protection laws.
4. The Customer shall not sell, offer or otherwise commercially exploit any personal data of the Agents. In the event of a violation of this obligation, the Customer shall pay a contractual penalty equaling the fees payable by the Customer for the Services during the period of six months preceding the violation. Yoummday (Pty) Ltd may claim additional damages. The contractual penalty shall not be offset against any other rights or remedies Yoummday (Pty) Ltd may have under the Terms or provided by law.

9. Confidentiality, Publications

1. During the parties' business relationship and for a period of three years thereafter, both parties shall (a) hold in confidence all information of the other party which is marked or designated as "confidential" or in a similar manner or is confidential by its nature ("Confidential Information"); (b) adequately protect Confidential Information; (c) disclose Confidential Information only to such personnel having a specific need to know, provided that they are bound by confidentiality obligations no less restrictive than this Clause 9; and (d) not use Confidential Information for any purpose other than the performance of the individual transaction. The recipient shall immediately return or destroy Confidential Information as well as all copies thereof upon completion of the individual transaction.
2. The foregoing confidentiality obligations shall not apply to information that is or becomes publicly known through no unauthorized act of the recipient or is required to be disclosed under applicable laws.
3. Yoummday (Pty) Ltd may make reference to the Customer in advertising and publications.

10. Termination

1. Each party may terminate an individual transactions for good cause, including without limitation, in the event (a) the other party becomes insolvent; (b) an application to initiate insolvency proceedings against the other party has been filed, any such application has been rejected due to lack of assets; (c) any executions against the other party have been fruitless or any execution measures have been initiated against the other party which have not been cancelled within one month (e.g. cancellation of seizure); or (d) in the case of a delayed performance, after the fruitless expiry of a reasonable grace period set by the noneinfringing party, or without grace period if such period is expendable in the circumstances.
2. Notices of termination shall only be effective if given in writing.

11. Applicable Law, Place of Jurisdiction

1. All legal relations between Yoummday (Pty) Ltd and the Supplier shall be governed exclusively by the laws of South Africa.
2. The exclusive place of jurisdiction shall be at 5 Carey Street, Woodstock, 7025, Cape Town, South Africa. However, Yoummday (Pty) Ltd may at its choice sue the Customer at the Customer's registered office.

Miscellaneous

1. The Customer may only assign its rights and obligations in whole or in part with the prior written consent of Yoummday (Pty) Ltd. Yoummday (Pty) Ltd is permitted to assign its rights and obligations in whole or in part, in particular to Yoummday (Pty) Ltd affiliates.
2. The Customer shall not be entitled to exercise a right of retention or set-off.
3. If provisions of an individual transaction or the Terms should be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby.
4. The failure or delay of Yoummday (Pty) Ltd to exercise any right hereunder shall not be deemed to be a waiver of such right in that or any future circumstance. No waiver of Yoummday (Pty) Ltd shall be effective unless in writing.
5. The parties are independent contractors, and are not intended and shall not be deemed to be partners or joint ventures, or to have an employment, distributor, or agency relationship.