For peace of mind, we recommend you only deal with one of our Certified Partners when selecting a biometric solution. Ideco offers free support to all our Certified Partners and their Customers who purchase biometric solutions from them.
1. DEFINITIONS
For the purposes of this agreement -
1.1. "Authorised user" means such persons who registered an account with any of the Ideco Identity Assurance products or application by providing the necessary information are required;
1.2. “Certificate” means a Class 4 Digital Certificate issued to natural persons to provide the highest level of assurance and which can be used as “advanced electronic signatures” as defined in terms of the ECT Act and accredited by the relevant South African Accreditation Authority;
1.3. “Compromise” means an unauthorised disclosure of, or loss of control over, a breach or suspected breach;
1.4. "Confidential Information" means any information or data belonging to or known by the parties, which are not data in public domain or by its nature or content identifiable as confidential or which is provided or disclosed in confidence;
1.5. “Consent” means any freely-given, specific and informed expression of will whereby a consumer agree to the processing of personal information relating to them;
1.6. “Consumer” means a consumer as defined in section 1 of the NCA;
1.7. “Consumer Credit Information” means that information as more fully set out in section 70 of the NCA;
1.8. “Customer” means the entity identified as such by registering on the application;
1.10. "Customer Non-Compliance" means:
(i) the use of the Services in ways other than as specified in the service descriptions;
(ii) the use of the Services in contravention of any legislative, regulatory or license requirements for the use of the Services;
(iii) the use of the Services in contravention of clause 4 of this Agreement;
(iv) the use of any hardware or software program that causes damaged to the Service;
(v) the use of the Services by Customer in breach of this Agreement;
(vi) accident, neglect, misuse, or abuse of the Services;
(vii) and or any other reason which may be regarded as non compliant in terms of any applicable Regulation or Law;
1.11. “Data” means the Personal Information as processed during the provisioning of the Service, which Personal Information may include, but not limited to Biometric Information of the Consumer.
1.12. “ECT Act” means the Electronic Communications and Transaction Act 25 of 2002 and the Accreditation Regulations;
1.13. "Intellectual Property" means any and all rights, title and interest in any Intellectual Property right (whether registered or not), including, past and future copyright, related rights, patents, utility models, trade marks, trade names, service marks, designs, databases, know-how, trade secrets and inventions (whether patentable or not), goodwill and all other identical or similar Intellectual Property as may exist anywhere in the world and any applications for registration of such Intellectual Property;
1.14. "Losses" means subject to the provisions of Ideco’s limited liability, all losses, liabilities, damages and claims, and all related costs and expenses (including legal fees on the scale as between party and party, tracing and collection charges, costs of investigation, interest and penalties);
1.15. “NCA” means the National Credit Act no.34 of 2005, as amended;
1.16. “Registration Authority” means the entity that has been appointed to collect the customer information and to manage the processes relating to digital certificate issue, renewal and revocation requests, including credential validation where required.
1.17. “Personal Information” means that information as more fully defined in the Protection of Personal Information Act 3 of 2013;
1.18. “Prescribed Purpose” shall mean those reasons for which the Service may be required or permitted as set out in the NCA, POPIA or any other applicable Legislation or Regulations as amended from time to time;
1.19. “POPIA” means the Protection of Personal Information Act 3 of 2013;
1.20. “Service” means the provision of Identity Verification products and services as offered by Ideco to the Customer, which may including the issuing, management, suspension, revocation and renewal of Digital Certificates;
1.21. "Specifications" means the functional and technical specifications for the Service;
1.22. "Ideco" means Ideco Biometric Security Solutions (Pty) Ltd.
2. APPOINTMENT
2.1 Ideco operates a cloud-based information system that offers data verification services to Customers for the purpose of identity assurance, profiling and clearing. The Customer requires access to this Services and wishes to appoint Ideco as its agent and service provider for the Service.
2.2 The Customer hereby appoints Ideco as its Service provider and Ideco hereby accepts such appointment.
2.3 The Customer acknowledges that Ideco shall be entitled to provide the Service and other services and/or products to other customers.
2.4 The Customer shall not be entitled to cede or delegate any of its rights or obligations in terms of this agreement without the prior written consent from Ideco.
3 DURATION
3.1 Ideco reserves the right to verify any details provided during registration against external information sources and/or credit bureaus.
3.2 This Agreement shall commence on the Date from which the client has registered an account
4 TERMS OF USE OF THE SERVICES
4.1 The Customer guarantees that it will at all times comply in all respects with relevant legislative or regulatory requirements and rulings of any competent authority that has jurisdiction over the provision of the Service. Ideco undertakes no responsibility in respect of ensuring the Customer’s compliancy and the customer indemnifies Ideco in all respects.
4.2 The Customer undertakes that it will only use the Service for the Prescribed Purpose.
4.3 The Customer acknowledges that in its use of the Service, Ideco shall be entitled to do all things necessary in order to give effect to any legislation, regulation or ruling of a relevant competent authority.
4.4 The Customer is prohibited from allowing any person other than its Authorised users to access the Service through any of the Customer’s equipment, personnel and/or any other means.
4.5 The Customer agrees that any information returned or submitted to the Service shall
(i) be accurate, relevant and complete in order to give effect to any legislation, regulation or ruling of a relevant competent authority and
(ii) shall have the necessary consent and approvals required from the Consumer for submitting such information to the Service.
4.6 The Customer agrees that information retrieved from the Service will only be applied in a manner that is accurate, objective, fair and equitable to the Consumer with regards to the confidentiality and relevancy of such information.
4.7 The Customer agrees to keep accurate and complete proof of any information submitted to or retrieved from the Service. Proof of validity of such information will be made available on request.
4.8 The Customer acknowledges that every time Consumer information is retrieved, viewed or opened, the Ideco Information System will record a detailed log of such a transaction for audit, reference and billing purposes.
4.9 The Customer shall not commit, nor attempt to commit any act or omission which directly or indirectly:
(i) damages the Service in any way;
(ii) impairs or precludes Ideco from being able to provide the Service in a reasonable and businesslike manner; and
(iii) constitutes an abuse or malicious misuse of the Service, or is calculated to have such effect.
4.10 Upon the occurrence of any one or more of the events described in clause 4.9 above, should Ideco, in its sole discretion, consider it necessary to incur expenses to remedy any one or more of the situations envisaged in clause 4.9, Ideco reserves the right and Customer hereby recognises Ideco's right, to charge the Customer such amount or amounts as maybe reasonably required to reimburse Ideco for any such expenses so incurred.
4.11 In addition to the provisions of clause 4.10, upon the occurrence of any of the events set forth in clause 4.9, Ideco shall be entitled to summarily suspend the Customer's access to or use of the Service, including the removal of any Data submitted by the Customer.
4.12 Unless otherwise agreed between the parties in writing, the Customer is prohibited from selling, reselling, on-selling, leasing or otherwise dealing with the Service in any manner whatsoever other than the Prescribed Purpose without the explicit written consent from Ideco. Any consideration that the Customer may receive whilst acting in breach of this prohibition shall be forfeited to Ideco.
4.13 Without limiting the foregoing, Customer shall be responsible for the payment of any fines or penalties arising from Customer's non–compliance with any clause and hereby indemnifies and holds harmless Ideco and its Staff from any and all Losses arising from Customer's breach of the relevant clause.
5 Ideco's WARRANTIES
5.1 Ideco warrants to operate the Service in compliance with the relevant regulatory requirements in order togive effect to any legislation or regulation that may be applicable to offering the service.
5.2 While Ideco makes its best efforts to ensure that all data contained in the Service is correct, Ideco makes no representations and warranties and/or guarantees of whatever nature, whether express, implied in law, or residual, in respect of this Agreement, as to the Service and/or the quality, accuracy or correctness of the data contained in the Service.
5.3 Ideco will use its reasonable endeavours to provide Customer with continuous access to the Services. However, Ideco does not warrant that the Services will be accurate, error free or uninterrupted.
5.4 Ideco warrants that Digital Certificate will be issued within 48 hours of submitting the required supporting documentation to the Registration Authority. All dates are subject to the Consumer providing complete and accurate Data and subject to prompt response to any subsequent administrative requirements for the purpose of authentication.
5.5 Ideco warrants that the maintenance services and updates will be performed in a workman like manner with the necessary degree of skill prevalent in the industry. The Customer’s sole and exclusive remedy, and Ideco’s entire liability, for Ideco’s breach of this warranty is for Ideco to perform the maintenance services and updates in a manner consistent with this warranty.
5.6 Ideco does not provide any warranty in respect of and shall not be liable for any loss or damage, including any loss of profits, business or revenue, or any consequential loss suffered by the Customer as a result of:
5.6.1 the information provided by the Service;
5.6.2 any information not provided by the Service;
5.6.3 any delay, defect or other failure in the provision of the Service rendered by Ideco or any of its authorised agents;
5.6.4 any negligence or gross negligence on the part of Ideco or any of its authorised agents.
5.6.5 any representation other than contained in the official documentation of Ideco.
5.7 None of the parties involved in creating, producing, or delivering this Service is liable for any direct, incidental, consequential, indirect, or punitive damages, or any other losses, costs, or expenses of any kind (including legal fees, expert fees, or other disbursements) which may arise, directly or indirectly, through the access to, use of this Service, including but not limited to anything caused by any viruses, bugs, human action or inaction or any equipment or system malfunctions, or any other errors, failures or delays in computer transmission or network connections.
5.8 Except as specifically set forth in this clause 5.8, the Service is provided "as is" without warranties of any kind. Without limiting the foregoing, Ideco disclaims any and all warranties and representations of any kind, whether express, implied, or statutory, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Both Parties acknowledge that they have not entered into this Agreement in reliance upon any warranty or representation other than those set forth in clause 7.
6 MAINTENANCE & SUPPORT
6.1 While Ideco uses its best efforts to provide the Services as an online real time service, it cannot guarantee the time period within which the Service is provided.
6.2 Ideco will provide the Customer with technical specifications from time to time in order to ensure that the functionality and security of its Information System is not compromised. The Customer undertakes to abide by these specifications and to implement them as soon as possible after release. Failure to abide by these specifications is construed a breach of this Agreement.
6.3 Where Ideco is required to perform emergency maintenance, Ideco shall use its best efforts to restore the Services within a reasonable period of time and with due regard to the nature of the emergency maintenance required.
6.4 Should Ideco be required to carry out an onsite visit in order to provide maintenance services and updates on behalf of the Customer and should it subsequently transpire that the provision of the maintenance services and updates by Ideco was necessitated as a result of Customer Non-Compliance, then and in such event, Ideco shall be entitled to charge for such services as an Additional Service.
7 SUSPENSION OR TERMINATION
7.1 Should:
7.1.1 Ideco believe that the Customer have submitted inaccurate, incomplete, fraudulent, false or misleading information in support of a Service request; or
7.1.2 Ideco is unable to validate conclusively any data that was provide as part of the Service request; or
7.1.3 Any of the supporting information such as valid identity document; fingerprints; electronic photo or proof of residence that may be required as part of the Service request be of an unaffiliated Consumer, Ideco retains the rights to withhold, suspend or terminate any or all parts of the service.
7.2 Ideco may, at its sole discretion and without incurring any liability to the Customer or to any other person, at anytime and from time to time, suspend the Service in whole or in part in any of the following circumstances:
7.2.1 if a technical failure affect the provision of the service; or
7.2.2 if modification or maintenance of the system is required provided that Ideco will use its reasonable endeavours to procure the resumption of the services as soon as reasonably practicable; or
7.2.3 if changes to or termination of the Service is required by any legislation, data supplier, governmental or regulatory authority;
7.2.4 if the customer fails to comply with any of the terms and conditions of this agreement including default in the payment of any amounts owing to Ideco and until the breach (if capable of remedy) is remedied,
7.3 Not withstanding any suspension of the services under this clause, the customer shall, subject to this Agreement, remain liable for all charges payable hereunder, including throughout the period of suspension, unless Ideco at its sole discretion otherwise advises in writing.
7.4 Ideco shall not be liable for any delay in performing or any failure to perform any of its obligations in terms of this agreement caused by force majeure, being any cause beyond the control of Ideco, or caused by any act or omission of government, regulatory or other competent authority, or by any company or institution owned, controlled or operated by the State, whether such act or omission be official or otherwise.
8 CUSTOMER WARRANTIES
8.1 Customer acknowledge and warrants that -
8.1.1 All passwords to be used in conjunction with the Service and / or Certificates will be kept under strict control at all times and will remain confidential;
8.1.2 All material representations made for purposes of obtaining Certificates, including all information known and represented in the Certificate, will be accurate and complete;
8.1.3 All Consumer Data at the time of application will be obtained with explicit consent from the Consumer and will not include any information or material, any part of which, or the use of which, is unlawful;
8.1.4 All reasonable precautions to prevent any loss,disclosure or unauthorized use of the Private keys will be taken and that these keys will be kept within strict control;
8.1.5 If anyone else, with or without explicit approval,uses these Certificates, it will be treated as a breach of this Agreement, in which event Ideco may, without notice, request to revoke the Certificates. In addition, the Customer may be liable for any loss or damage suffered as a result thereof.
8.1.6 Once the Certificates are issued, Ideco shall have no continuing duty to monitor or otherwise investigate the accuracy of Consumer Data contained in Digital Certificates or whether the private keys of these Certificates are under the sole control of the Consumer;
8.2 The Customer further warrants that:
(i) the information, both written and oral, given by Customer to Ideco prior to the Effective Date of this Agreement and upon which Ideco has placed significant reliance in order to determine the scope of the Service and pricing, is accurate and complete; and
(ii) it has not been induced to enter into this Agreement by any prior representations, warranties or guarantees,whether oral or in writing, except as expressly contained in this Agreement.
9 INTELLECTUAL PROPERTY RIGHTS
The parties agree and acknowledge that:
9.1 Any and all of the copyright, trademarks and all other intellectual property rights used or subsisting in or in connection with the products shall vest in and shall be the sole property of either party.
9.2 The Parties shall keep and maintain as strictly confidential all the Intellectual Property and Confidential Information furnished to it pursuant to this Agreement.
9.3 The Parties shall use its utmost efforts and diligenceto guard and protect each other’s Intellectual Property and Confidential Information and shall exercise reasonable care in restricting access to the Trade Secrets and Confidential Information to its officers, directors, employees and associates.
10 INDEMNITIES AND LIMITATION OF LIABILITY
10.1 The Customer acknowledges that any information released to the Customer shall in no way be construed as an opinion of Ideco on the identity, solvency, financial standing,credit worthiness, integrity or motives of any Consumer reported upon but merely reflects a recording of Data received by the Ideco Information System from various sources from time to time. Use of the information system requires the Customer’s interpretation and judgment. The Customer shall be solely liable for all opinions, recommendations, forecasts or comments made or actions taken in connection with the interpretation of the information contained in the Service.
10.2 The Customer therefore indemnifies and holds Ideco harmless from any and all Losses arising from any of the following:
(i) any claim or action arising from the indemnifying party's breach of any obligation with respect to Confidential Information; and
(ii) any claim of infringement of any Intellectual Property or other proprietary rights against the indemnifying party.
10.3 The Customer agrees to indemnify and hold harmless Ideco, from liabilities arising from any information supplied by the Customer infringing or allegedly infringing on the privacy of a Consumer.
10.4 The Customer hereby unconditionally and irrevocably indemnifies and holds Ideco, and its officers, directors, staff, successors, and assigns, harmless from any and all losses arising from, in connection with, or based upon allegations by any staff memberof the Customer, business invitee, or business visitor or other person of, any of the following:
(i) the death or bodily injury of such person caused by the Indemnitor;
(ii) the damage, loss or destruction of any real or tangible personal property of such person caused by the Indemnitor; and
(iii) any claim,demand, charge, action, cause of action, or other proceeding asserted by such person against the Indemnitee but resulting from an act or omission of the Indemnitor in its capacity as an employer of a person.
10.5 Neither the Customer nor any other person shall have any claim against Ideco for any direct, consequential, incidental, indirect or special loss or damages including (without being limited to) business interruption, loss of business information, loss of data or other pecuniary loss, arising from the unavailability of, or interruption in the Service, regardless of whether such claim is based on breach of contract, delict, breach of implied warranties or otherwise and even if the possibility of such loss or damages could have been foreseen.
10.6 In all cases (and excluding any liability which may not by law be excluded or limited), Ideco’s total liability, whether in contract, negligence or otherwise, under or in connection with this agreement will not exceed in aggregate 50% (fifty per centum) of the total fees received by Ideco with respect to the Service giving rise to the liability during the 12(twelve) month period prior to the last cause of action.
11. FEES
11.1. Access to the Service as well as subscription fees are charged per transaction.
11.2. Where applicable, transactions processed by the Service are invoiced and paid monthly in arrears.
11.3. The Customer hereby agrees that –
11.3.1. Service charges shall be subject to an annual increase.
11.3.2. all payments to be made by the Customer to Ideco shall be made free of deduction, set-off, bank charges or commission;
11.3.3. all amounts payable in respect of the Service are exclusive of value-added tax. In the event that therate of value-added tax or such other similar taxation be varied from time to time, the payments to be made by the Customer to Ideco shall be adjusted accordingly;
11.3.4. a certificate under the signature of any manager or director of Ideco shall constitute prima facie proof of the amount of the indebtedness of the Customer to Ideco at any time, including any interest, the rate of interest and the method of calculation thereof. It shall not be necessary to prove the appointment or signature of the manager or director signing any such certificate;
11.3.5. any amount which is not paid on due date as contemplated in terms of this agreement shall, without prejudice to any other rights which Ideco may have, bear interest at the prime overdraft lending rate of ABSA Bank Limited from time to time as certified by any manager of ABSA Bank Limited (whose appointment neednot be verified and which certificate shall constitute prima facie proof thereof) plus 2% (two per centum), from due date to date of final payment;
11.3.6. the then prevailing rates for the Service shall apply where no rate has been agreedin writing between the parties.
12. BREACH
In the event that –
12.1. the Customer fails to effect payment of any amounts due to Ideco in terms of this agreement on due date;
12.2. there is any change in direct and/or indirect control, ownership or management of the Customer;
12.3. either party commits a breach of any of the terms of this agreement and fails to remedy such breach within 14 (fourteen) days of receipt of written notice from the other party, then Ideco or the Customer (“the aggrieved party”), as the case may be, shall be entitled without prejudice to any other remedies which the aggrieved party may have in law (including but not limited to specific performance) to cancel this agreement and claim any damages that the aggrieved party may have suffered.
13. FORCE MAJEURE
If force majeure cause delays in or failure or partial failure of performance by a party of all or any of its obligations hereunder, this agreement, or as the case may be, the effected portion thereof, shall be suspended for the period during which the force majeure prevails, but if the force majeure affects any material part of the agreement only for a maximum period of 60 (sixty) days, then Ideco shall be entitled on 7 (seven) days written notice to the Customer to cancel this agreement. For the purpose hereof, force majeure includes strikes, riots, lockouts, fire, floods, drought or any other cause beyond the control of the parties.
14. GENERAL
14.1. This document constitutes the sole record of the agreement between the parties in regard to the subject matter hereof and Ideco shall not be bound byany express, tacit or implied terms, representation, warranty promise or the like if not recorded herein.
14.2. Save as otherwise specifically provided herein, no addition, variation, or consensual cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
14.3. No indulgence, which Ideco may grant to the Customer, shall constitute a waiver of any of the rights of Ideco who shall not thereby be precluded from exercising any rights against the Customer which may have arisen in the past or which might arise in the future.
14.4. These terms and conditions will be governed, construed and take effect in all respects in accordance with the laws of the Republic of South Africa and the parties hereby consent to the exclusive jurisdiction of the South African Courts.
14.5. The Customer chooses as its domicilium citandi et executandi for all purposes arising from this agreement, the address set out in the application form and any notice given by Ideco to the Customer at such address by prepaid registered post shall be deemed to have been received by the Customer and brought to its notice –
14.5.1. on the 7th (seventh) day after the date of posting;
14.5.2. within 24 (twenty four) hours of being faxed to the Customer;
14.5.3. onbeing delivered by hand to the Customer or any representative of the Customer.
14.6. The Customer shall be liable for all costs as between attorney and own client, which are incurred by Ideco in the pursuance of its rights under this agreement. Such costs shall include the cost of tracing as well as collecting commission.
14.7. The Customer shall not be entitled to cede or assign this agreement or any of its rights under this agreement nor to delegate any obligation under this agreement to any party without the prior written consent of Ideco.
14.8. The invalidity of any part of this agreement will not affect the validity of any other part.