Terms of Service for Jezreel Student Software

Effective Date: 12 August 2023

This Terms of Service Agreement (the “Agreement”) is entered into between:

Silver Surge (PTY) Ltd Registration Number: 2020/797132/07 70 Olivier Street, Potchefstroom, South-Africa (“Silver Surge,” “we,” “us,” or “our”)

And

The Subscribing Entity (“Agency,” “you,” or “your”)

This Agreement governs your access to and use of the Jezreel Student Software platform, including the website jezsoftware.co.za, the application portal (agency specific application instance), and any related software, services, and documentation (collectively, the “Service”).

By accessing or using the Service, you agree to be bound by this Agreement and our Privacy Policy https://jezsoftware.co.za/privacy-policy/, which is incorporated by reference. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms.

1. Definitions In this Agreement, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings:

• “Agreement”: This Terms of Service Agreement, including the Privacy Policy and any other policies or annexures referenced herein, as amended from time to time.
• “Agency Data”: Any data, information, or material provided, submitted, or uploaded by you or your Authorized Users to the Service, including Student personal information.
• “Applicable Law”: Any applicable South African law, including common law, statute, subordinate legislation, regulation, or directive having the force of law.
• “Authorized User(s)”: Your employees, agents, or representatives who are authorized by you to access and use the Service under your account, including those designated with roles such as “Admin,” “User,” or “Reviewer” within the Service.
• “Business Day”: Any day other than a Saturday, Sunday, or gazetted national public holiday in South Africa.
• “Confidential Information”:
  • The details of this Agreement and the negotiations or discussions leading to its execution.
  • All information relating to the business, operations, affairs, assets, and liabilities of either Party (including know-how, trade secrets, ideas, concepts, Agency Data, and operational information of the Service).
• “Fees”: The applicable fees payable by you to Silver Surge for the provision of the Service, as detailed in Section 5.
• “Intellectual Property”: All rights, title, and interest (statutory and common law) in respect of all forms of intellectual property, including without limitation Confidential Information, copyright in all subject matter in which copyright subsists or may in the future subsist (including the Service software and its components), trademarks (whether registered or unregistered), and any applications for the foregoing.
• “Service”: The Jezreel Student Software platform, including the website jezsoftware.co.za, the application portal (agency specific application instance), and any related software, services, support, and documentation provided by Silver Surge.
• “Student”: An individual (typically a student applicant or resident) whose personal information is processed through the Service by an Agency.
• “Subscription Period”: The period for which you have subscribed to the Service (e.g., monthly or annually).
• “Tax Invoice”: Shall have the meaning ascribed to it in section 1 of the Value-Added Tax Act, No. 89 of 1991 (“VAT Act”).

2. Service Description and License Grant

• 2.1 Service: Silver Surge provides the Jezreel Student Software, a platform designed to assist student accommodation management agencies with managing student applications, accommodation details, and related administrative tasks. Hosting of the Service and Agency Data shall be through Silver Surge or its designated providers.
• 2.2 License Grant: Subject to your compliance with this Agreement and payment of applicable Fees, Silver Surge grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Subscription Period to access and use the Service solely for your internal business operations related to student accommodation management.
• 2.3 Restrictions on Use: You shall not, and shall ensure your Authorized Users do not:
  • Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Service or any part thereof.
  • Modify, adapt, translate, or create derivative works based on the Service.
  • Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Service available to any third party (except as expressly permitted for Authorized Users).
  • Use the Service for any unlawful purpose or in violation of any Applicable Law or third-party rights, including privacy rights and intellectual property rights.
  • Use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
  • Use the Service to store or transmit malicious code (e.g., viruses, worms, Trojan horses).
  • Interfere with or disrupt the integrity or performance of the Service or third-party data contained therein.
  • Attempt to gain unauthorized access to the Service or its related systems or networks.
  • Remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any component of the Service.
  • Split student accommodation buildings or units between multiple Agency accounts or manipulate student numbers in a way intended to circumvent the prescribed Fee structure without prior written consent from Silver Surge.

3. Account Registration and Responsibilities

• 3.1 Account: You must register for an account to access the Service. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.
• 3.2 Security: You are responsible for maintaining the confidentiality of your account credentials (including passwords) for all Authorized Users. You are responsible for all activities that occur under your account. You agree to notify Silver Surge immediately of any unauthorized use of your account or any other breach of security.
• 3.3 Authorized Users: You are responsible for the compliance of your Authorized Users with the terms of this Agreement.

4. Service Availability, Support, and Maintenance

• 4.1 Availability: Silver Surge will use commercially reasonable efforts to make the Service available to you, subject to planned downtime for maintenance and updates, and unscheduled downtime caused by circumstances beyond our reasonable control (e.g., force majeure events, internet service provider failures).
• 4.2 Support: Silver Surge will provide reasonable technical support for the Service. “24/7 customer support”.
• 4.3 Maintenance and Updates: Silver Surge may, from time to time, perform maintenance on or release updates, upgrades, or new versions of the Service. We will endeavor to provide reasonable notice of planned maintenance. Bug fixes for the core Service will be provided free of charge.
• 4.4 Backups: Silver Surge will perform regular backups of Agency Data.

5. Fees, Payment, and Subscription Terms

• 5.1 Fees: You agree to pay Silver Surge the fees for the Service (“Fees”) based on your usage and subscription plan. The current standard rate is R20 (twenty Rand) per active Student managed through the Service per month, exclusive of VAT.
• 5.2 Minimum Usage: A minimum charge equivalent to 50 (fifty) Students per month will apply, even if your active Student count is lower.
• 5.3 Volume Discount: If you manage 1000 (one thousand) or more active Students through the Service in a given month, a 50% (fifty percent) discount will be applied to the per-Student rate for all Students managed during that month.
• 5.4 Billing and Payment:
  • Fees will be billed in advance [Specify: monthly or annually, based on subscription choice].
  • Payments are due within [Specify number, e.g., 7, 15, or 30] days of the Tax Invoice date.
  • All payments shall be made to Silver Surge (PTY) Ltd in South African Rand (ZAR) via Electronic Funds Transfer (EFT), debit order, online subscription(Payfast).
  • You are responsible for providing complete and accurate billing and contact information to Silver Surge and notifying us of any changes to such information.
• 5.5 Taxes: All Fees are exclusive of Value-Added Tax (VAT) and any other applicable taxes, duties, or levies, which you shall be responsible for paying as required by Applicable Law. Silver Surge will issue valid Tax Invoices.
• 5.6 Late Payments: If any invoiced amount is not received by Silver Surge by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 15% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future subscription renewals and order forms on payment terms shorter than those specified in this section.
• 5.7 Fee Adjustments: Silver Surge reserves the right to adjust Fees and Fee structures. We will provide you with at least 60 days’ prior written notice of any Fee changes applicable to your subscription.

6. Subscription Term, Renewal, and Termination

• 6.1 Initial Term: This Agreement shall commence on the date you first accept these terms or access the Service and shall continue for the initial subscription period selected by you (e.g., 12 months for annual subscriptions, 1 month for monthly subscriptions) (“Initial Term”).
• 6.2 Renewal:
  • Annual Subscriptions: Unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant Subscription Period, annual subscriptions will automatically renew for additional periods of 12 months.
  • Monthly Subscriptions: Monthly subscriptions will automatically renew on a month-to-month basis unless either party gives the other written notice of cancellation at least 30 days before the end of the current monthly period.
• 6.3 Termination by You:
  • You may terminate this Agreement in accordance with the renewal provisions above.
  • Annual subscriptions are generally non-refundable if terminated mid-term by you, though access will continue for the paid duration.
  • Monthly subscriptions can be cancelled with notice as per clause 6.2.2, and are non-refundable for the current active month.
• 6.4 Termination or Suspension by Silver Surge: We may terminate this Agreement or suspend your access to the Service, in whole or in part, immediately upon written notice if:
  • You breach any material provision of this Agreement (including failure to pay Fees) and fail to cure such breach within 10 (ten) Business Days of receiving written notice thereof.
  • You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
  • We believe, in our reasonable opinion, that your use of the Service violates Applicable Law or infringes on the rights of a third party, or is otherwise fraudulent or harmful.
• 6.5 Effect of Termination or Expiry:
  • Upon termination or expiry of this Agreement for any reason:
    • All rights and licenses granted to you hereunder will immediately cease.
    • You shall immediately cease all use of the Service.
    • You shall pay any outstanding Fees owed to Silver Surge within 30 days.
    • Upon your request made within 30 days after the effective date of termination or expiry, Silver Surge will make your Agency Data available to you for export or download in a common format. After such 30-day period, Silver Surge shall have no obligation to maintain or provide any of your Agency Data and may thereafter, unless legally prohibited, delete all Agency Data in its systems or otherwise in its possession or under its control.
    • Each Party shall return or destroy (and certify destruction of) all Confidential Information of the other Party.
  • Provisions that by their nature should survive termination or expiry (including, without limitation, provisions regarding intellectual property, confidentiality, disclaimers, limitations of liability, indemnification, payment obligations accrued prior to termination, and dispute resolution) shall survive.

7. Intellectual Property Rights

• 7.1 Silver Surge IP: Silver Surge owns and retains all right, title, and interest, including all Intellectual Property rights, in and to the Service (including all underlying software, documentation, and visual interfaces), and any modifications, improvements, updates, derivative works, and feedback related thereto. This Agreement does not grant you any ownership rights in the Service. Any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any Authorized User relating to the Service (“Feedback”) shall be owned exclusively by Silver Surge. You hereby irrevocably assign to Silver Surge all right, title, and interest in and to such Feedback.
• 7.2 Agency Data: As between you and Silver Surge, you exclusively own all rights, title, and interest in and to all your Agency Data. You grant Silver Surge a worldwide, non-exclusive, royalty-free license to host, copy, transmit, display, and use your Agency Data as reasonably necessary to provide, maintain, and improve the Service in accordance with this Agreement and our Privacy Policy. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Agency Data.

8. Confidentiality

• 8.1 Obligation: Each Party (the “Receiving Party”) agrees to keep confidential all Confidential Information disclosed to it by the other Party (the “Disclosing Party”) and not to disclose it to any third party or use it for any purpose other than as necessary to perform its obligations or exercise its rights under this Agreement.
• 8.2 Permitted Disclosures: A Receiving Party may disclose Confidential Information to its employees, officers, directors, agents, subcontractors, and professional advisors who have a need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those herein.
• 8.3 Exceptions: The obligations of confidentiality do not apply to information that: (a) is or becomes publicly known through no wrongful act of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to disclosure; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is required to be disclosed by law, court order, or governmental authority, provided the Receiving Party gives the Disclosing Party prompt written notice of such requirement (where legally permissible) and cooperates in limiting disclosure.
• 8.4 Non-Reverse Engineering: You agree not to reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software provided as part of the Service.

9. Data Protection and Privacy

• 9.1 Privacy Policy: Our collection, use, and processing of personal information (including Student personal information processed as Agency Data) is governed by our Privacy Policy https://jezsoftware.co.za/privacy-policy/, which is incorporated into this Agreement. You confirm that you have read, understood, and agree to the terms of the Privacy Policy.
• 9.2 Your Obligations: You warrant that you have all necessary rights, consents, and legal bases (in compliance with POPIA and other Applicable Laws) to collect, process, and share Agency Data (including Student personal information) with Silver Surge for the purposes of using the Service. You are responsible for ensuring that your use of the Service and your instructions to Silver Surge regarding the processing of Agency Data comply with all Applicable Laws relating to data protection and privacy.
• 9.3 Silver Surge Obligations: Silver Surge will implement and maintain appropriate technical and organizational measures to protect the security, confidentiality, and integrity of Agency Data, as further described in our Privacy Policy. Silver Surge will only process Agency Data in accordance with your lawful instructions, this Agreement, and our Privacy Policy.

10. Warranties and Disclaimers

• 10.1 Mutual Warranties: Each Party warrants that it has the legal power and authority to enter into this Agreement.
• 10.2 Silver Surge Warranties: Silver Surge warrants that it will provide the Service using a commercially reasonable level of skill and care and in accordance with Good Industry Practice.
• 10.3 Your Warranties: You warrant that:
  • You have accurately identified yourself and will maintain the accuracy of such identification.
  • You have the full legal right, or consent of the data owner, to process all Agency Data sent to or through the Service.
  • Your use of the Service will comply with all Applicable Laws and this Agreement.
  • You will not use the Service in any manner that infringes the legal rights of any third party.
• 10.4 Disclaimer of Other Warranties: EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” SILVER SURGE MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SILVER SURGE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.

11. Limitation of Liability and Indemnification

• 11.1 Limitation of Liability:
  • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SILVER SURGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, DELICT/TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF SILVER SURGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SILVER SURGE’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, IN ANY CALENDAR YEAR, SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU TO SILVER SURGE FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM AROSE.
  • These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
• 11.2 Indemnification by You: You agree to indemnify, defend, and hold harmless Silver Surge, its affiliates, officers, directors, employees, and agents from and against any and all third-party claims, allegations, judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
  • Your use of the Service in breach of this Agreement or Applicable Law.
  • Your Agency Data, including any claim that your Agency Data infringes or misappropriates the intellectual property or privacy rights of a third party.
  • Your gross negligence or willful misconduct.

12. Dispute Resolution

• 12.1 Good Faith Negotiation: In the event of any dispute arising out of or relating to this Agreement, the Parties shall first attempt to resolve the dispute amicably through good faith negotiations between their respective senior representatives within 10-15 Business Days.
• 12.2 Mediation: If the dispute cannot be resolved through negotiation, the Parties agree to submit the dispute to mediation administered by the Arbitration Foundation of Southern Africa (“AFSA”) or another mutually agreed mediator, before resorting to arbitration or litigation. The mediation shall take place in Potchefstroom, South Africa, and the costs of the mediator shall be shared equally.
• 12.3 Arbitration: If mediation is unsuccessful, the dispute shall be finally resolved by arbitration administered by AFSA in accordance with its prevailing rules for commercial arbitration. The arbitration shall be held in Potchefstroom, South Africa, before a single arbitrator appointed in accordance with such rules. The arbitral award shall be final and binding. Nothing herein shall prevent either Party from seeking urgent interim relief from a competent court. (This dispute resolution clause is adapted from your SLA. Ensure the locations and AFSA reference are still preferred.)

13. Governing Law and Jurisdiction

• This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
• The Parties consent to the non-exclusive jurisdiction of the High Court of South Africa Gauteng Division for any proceedings arising out of or in connection with this Agreement, subject to the dispute resolution provisions in Section 12.

14. General Provisions

• 14.1 Entire Agreement: This Agreement (including the Privacy Policy and any other documents incorporated by reference) constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
• 14.2 Amendments: Silver Surge reserves the right to modify this Agreement from time to time. We will provide you with reasonable notice of any material changes (e.g., via email or a notification within the Service). Your continued use of the Service after such notice will constitute your acceptance of the modified Agreement.
• 14.3 Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
• 14.4 Waiver: No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
• 14.5 Assignment: You may not assign or transfer any of your rights or delegate any of your obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Silver Surge. Silver Surge may assign this Agreement in its entirety (including all order forms), without your consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
• 14.6 Notices: All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by confirmed facsimile or email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant system administrator designated by you. Notices to Silver Surge should be addressed to the contact details specified at the beginning of this Agreement or as otherwise updated by Silver Surge.
• 14.7 Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
• 14.8 No Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement.
• 14.9 Force Majeure: Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving such Party’s employees), or Internet service provider failures or delays.

By clicking “I Agree,” creating an account, or otherwise accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this Terms of Service Agreement.