Master Services Agreement
Master Services Agreement
Last Modified: 02 December 2021
This Master Services Agreement (“Agreement“) governs our provision and your use of the subscription services comprising various hardware, software, services, systems, databases, and/or other technology (“Services“) made available to you via your hosted instance(s) of the Services. This Agreement constitutes a binding contract between you (“you” or “your“) and BetTech Gaming (Proprietary) Limited (“BetTech“, also referred to as “we“, “our“, or “us” in this Agreement).
The term of this Agreement commences when you sign the Commercial Agreement, or when you access or use the Services, whichever occurs first in time (“Service Commencement Date“). You: (a) acknowledge that you have read and understand this Agreement; and (b) accept this Agreement and agree that you are legally bound by its terms. If you do not accept the terms of this Agreement, you may not access or use the Services.
Terms and Conditions
- Definitions and Interpretation
1.1. In this Agreement, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings:
1.1.1. “Applicable Law” means the laws of the Republic of South Africa, the Hosting Territory, and the Territory, including Consumer Protection and Data Protection Laws;
1.1.2. “Commercial Agreement” means the agreement concluded between you and BetTech setting out the commercial terms applicable to your access and use of the Services;
1.1.3. “Data Protection Laws” means any data protection or data privacy laws applicable in South Africa and/or the Territory from time to time;
1.1.4. “Documentation” means any literature whether functional, technical, descriptive, instructional, or otherwise informative—irrespective of form or format—pertaining to the Services where said literature is supplied by BetTech from time-to-time. For the purposes of this Agreement, Documentation excludes any similar literature provided by third parties whose software or services form part of, or are integrated into, the Services;
1.1.5. “Hosting Territory” means the countries where the instance(s) of the Services that you access and use are hosted;
1.1.6. “Parties” means you and/or BetTech, as the context requires;
1.1.7. “Party” means you or BetTech, as the context requires;
1.1.8. “Personal Information” means information relating to any natural or juristic person, including but not limited to:
220.127.116.11. Information relating to the race, gender, sex, marital status, national, ethnic or social origin, colour, or age,
18.104.22.168. disability, language, and birth date of the person;
22.214.171.124. information relating to the education or the medical, financial, criminal, or employment history of the person;
126.96.36.199. information relating to the financial affairs of the person;
188.8.131.52. any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person;
184.108.40.206. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature, or further correspondence that would reveal the contents of the original correspondence;
220.127.116.11. the views or opinions of another individual about the person;
18.104.22.168. the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person; and
22.214.171.124. any other information which may be treated or defined as “personal information” in terms of any Data Protection Laws;
1.1.9. “Support Agreement” means the agreement concluded between you and BetTech setting out the nature and commercial terms applicable to any enhanced support for the Services.
1.1.10. “Support Services Policy” means our generic support policy governing what we support and how we support it for the Services as may be amended by us from time to time. Among other matters, the Support Services Policy defines what support is provided free of charge.
1.1.11. “Territory” means, the countries in which you conduct your business and offer any products or services that require the functionality of the Services.
- Registering for the Services
2.1. In order to access and use any of the Services, you will need to provide us with certain Personal Information. BetTech will only use your Personal Information for purposes of providing the Services to you and performing our obligations under this Agreement. By submitting any information to us pursuant to the registration process, you warrant that:
2.1.1. the information you submit, including Personal Information is, and shall at all times remain accurate and complete; and
2.1.2. you have been duly authorised to share such information with BetTech.
2.1.3. You must promptly notify us of any updates and changes to your information.
2.2. You are responsible for protecting the user or login credentials (e.g., usernames, passwords, or keys) for your account(s), which you use to access and use any of the Services (“Credentials”). BetTech is entitled to rely on any actions taken by your account(s) as having been done or authorised to be done, by you, and BetTech will not be liable for any loss or damage which you may suffer due to any unauthorised access to, or use of, your account.
2.3. We may request you to provide additional information in order to amongst other things confirm your identity and to help ensure the security of the Services. It is your responsibility to ensure that any additional information provided by you is accurate, complete, true, and not misleading. BetTech reserves the right to reject or otherwise terminate your access to the Services at its sole discretion if it becomes aware that you are in breach of clauses 2.1.1 and/or 2.1.2. BetTech reserves the right to audit you and any documentation you provide prior to granting you access to any of the Services.
2.4. If we have reason to believe your account or the use of your Credentials has been compromised, we may suspend access to your account or the Services until the security thereof has been validated.
- Access Device
3.1. BetTech will not be responsible for your inability to access the Services, Your Content, and/or Your Data due to limitations specific to your personal computers, mobile phones, and other similar devices (“Access Device“). To access the Platform and the Services, you must have an Access Device which is able to among other things connect to the Internet and run modern web apps.
3.2. You at your own cost are responsible for obtaining and maintaining: (a) the Access Device; (b) adequate and reliable internet access; and (c) all information technology and telecommunication facilities, equipment, hardware, software, services, systems, and the like needed to access the Internet as well as access and use the Services. We are not responsible for any Internet access charges, service provider charges, and/or data usage charges. Such charges must be paid by you or the owner of the Access Device.
- Licence to Access and Use the Services
4.1. With effect from the Service Commencement Date, BetTech hereby grants you a non-exclusive and non-transferable right, without the right to grant sub-licences, to use the Services in the Territory solely for your internal business purposes, in accordance with the terms of this Agreement.
4.2. Without limiting the generality of the foregoing, you may not, and shall not permit any third party to:
4.2.1. sub-licence or transfer the Services in any way, either in whole or in part;
4.2.2. cause or permit anything to be done (or, as the case may be, not done) which may damage or endanger the Services (or any part thereof) in the Territory;
4.2.3. use the Services (or any part thereof) in any manner which contravenes any Applicable Laws;
4.2.4. challenge the validity or enforceability of, or BetTech’s entitlement to use, the Services (or any part thereof);
4.2.5. circumvent or bypass any technological protection measures in or relating to the Services;
4.2.6. allow the Services to become the subject of any charge, lien, or encumbrance;
4.2.7. copy, reverse engineer, decompile, disassemble, modify, duplicate, create derivative works from, download, distribute, or make error corrections to any portion of the Services or Documentation (or attempt to do any of the foregoing); and/or
4.2.8. use the intellectual property inherent to the Services, including but not limited to in the Documentation and/or any information provided by BetTech, to create any hardware, software, services, systems, databases, and/or other technology whose expression is substantially similar to that of the Services, or use such intellectual property in any manner which would be restricted by any intellectual property rights subsisting in the Services and the Documentation.
4.3. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and in the event of any such unauthorised access or use promptly notify BetTech.
- Service Obligations
5.1. BetTech shall:
5.1.1. use commercially reasonable endeavours to provide the Services in accordance with the functionality detailed within the Documentation or update the Documentation to reflect the latest functionality; and
5.1.2. have and comply with all necessary consents, licences, authorisations, approvals, permits, and permissions (including but not limited to the consents and licenses required to use Third Party Components) (“Approvals“) required for the provision of the Services in the Hosting Territory and Territory.
5.2. BetTech shall have no obligation to perform any services or provide any product not defined in this Agreement, or its annexures. This includes, but is not limited to, integrations into payment gateways or provision of any further content or services.
5.3. BetTech reserves the right at its sole discretion to modify, remove, update, or otherwise change any aspect of the Services and Documentation at any time.
5.4. BetTech shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
5.4.1. planned maintenance carried out during scheduled maintenance windows, which will be scheduled by BetTech when necessary; and
5.4.2. unscheduled maintenance performed outside the business hours of 07:00 – 23:00 South Africa Standard Time (“Normal Business Hours“), provided that where circumstances permit as determined solely by BetTech, BetTech has used reasonable endeavours to give you at least 4 (four) Normal Business Hours’ advance notice.
5.5. BetTech will as part of the Services and at no additional cost to you, provide you with our standard customer support services during Normal Business Hours in accordance with BetTech’s Support Services Policy in effect at the time that the Services are provided. BetTech may amend the Support Services Policy in its sole discretion from time to time. You may purchase enhanced support services separately at BetTech’s then-current rates subject to a separate Support Agreement concluded between you and us.
5.6. Notwithstanding the provisions within this section 5:
5.6.1. Should a third party for whatsoever reason restrict or terminate BetTech’s use of Third Party Components (or any part thereof), BetTech will have the right, without prejudice to its other rights or remedies, to restrict or terminate your access to any such Third Party Components; and
5.6.2. should an executive body, legislative body, regulator, committee, board, or similar government body within the Territory or any jurisdictional part thereof, for whatsoever reason restrict or terminate BetTech’s right to operate and/or make operation economically unviable including but not limited to revocation of BetTech’s licence or the levying of commercially prohibitive taxes, BetTech will have the right without prejudice to its other rights or remedies to restrict or terminate the Services with immediate effect in the affected Territory and any jurisdictional part thereof, which may constitute the immediate termination of this Agreement.
- Your Obligations
6.1. Subject to your compliance with the terms and conditions of this Agreement, you may access and use the Services.
6.2. In using the Services, you agree to:
6.2.1. comply with all Applicable Laws and all lawful instructions pursuant to BetTech’s provision of the Services notified to you by or on behalf of BetTech from time to time;
6.2.2. provide BetTech with all necessary co-operation in relation to this Agreement;
6.2.3. provide BetTech with access to such information as may be required by BetTech in order to provide the Services, including but not limited to, Your Content, Your Data, security access information, and configurations services; and
6.2.4. carry out all of your responsibilities set out in this Agreement in a timely and efficient manner.
6.3. In relation to specific Services, we may require you to agree to additional terms from time to time, which terms will supplement and be deemed to be incorporated by reference in, and read with and as part of, this Agreement.
6.4. You agree to conclude contracts with your end users that contain materially the same terms and conditions as set out in this Agreement (including with respect to intellectual property rights, audit rights, confidentiality, privacy, and warranties), to the extent the terms and conditions are relevant to the services provided by you to your end users in relation to the Services. For the avoidance of doubt, contracts concluded with your end users must incorporate warranties, obligations, undertakings, and indemnities required to give effect to your own warranties, undertakings, and obligations under this Agreement, and which are equivalent to, and provide protections which are the same in all material respects to, those given by you in clauses 2.2, 4, 6.5, 7.1, 8, 9, 11, 12, 14, 15, and 18. You hereby indemnify BetTech from any and all claims arising from your failure to comply with the provisions of your agreement with your end user (or any part thereof).
6.5. You agree that you and your agents, representatives, employees, or personnel shall not, when accessing or using the Services:
6.5.1. perform any action that violates this Agreement;
6.5.2. do anything that exploits, harms, or threatens to harm children;
6.5.3. perform any action which is illegal, unlawful, fraudulent, or violates or infringes any rights, title, or interest (including, but not limited to, any intellectual property rights) in or to the Services;
6.5.4. upload inappropriate content, data, or material, whether as part of Your Content, Your Data, or otherwise, that does not comply with Applicable Laws;
6.5.5. use the Services for spam or for phishing;
6.5.6. damage, disable, overburden, impair, or gain unauthorised access to the Services;
6.5.7. use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously;
6.5.8. infringe or misappropriate our intellectual property rights or those of any third party (including, without limitation, our licensors and other users of the Services);
6.5.9. engage in any activity that violates the privacy or data protection rights of others;
6.5.10. interfere with any other person’s use and enjoyment of the Services;
6.5.11. record, process, or mine information about other users; access, retrieve, scrape, or index the Services to construct or populate a database; or use any robot, spider, site crawler, search service, or other retrieval hardware, software, service, database, process whether automated or manual, or other means to access, retrieve, scrape, or index the Services or any content available via the Services;
6.5.12. submit false, inaccurate, or misleading information on the Services or conduct yourself in a false, inaccurate, or misleading fashion or conduct fraudulent activities; or
6.5.13. provide or otherwise make available the Services, in whole or in part (including any object code), in any form to any person without our prior written consent,
6.5.14. all of the above are referred to as the “Prohibited Conduct”.
6.6. If we become aware that you have violated this section 6 or have permitted a third party to conduct any Prohibited Conduct through the Services, we may in our sole discretion suspend or terminate your access to, and use of, the Services or part thereof.
- Your Content and Your Data
7.1. To the extent that the Services (or any part thereof) permit you to post or store content, links, graphics, banners, documentation, or other information (“Your Content”) in or on the Services, you will not (and you will not allow any other person to) post, store, upload, transmit, distribute, publish, or otherwise disclose through the Services any content that violates the restrictions set forth in clause 6.5, and you warrant that you have all necessary rights to make Your Content available in accordance with the terms of this Agreement.
7.2. To the extent that the Services (or any part thereof) permit your end users to register accounts, create profiles, make deposits, place bets, make withdrawals, share bets, or otherwise engage in activities that create data (“Your Data”) in or on the Services, you will not (and you will not allow any other person to) post, store, upload, transmit, distribute, publish, or otherwise disclose through the Services any data that violates the restrictions set forth in clause 6.5, and you warrant that you have all necessary rights to make Your Data available in accordance with the terms of this Agreement.
7.3. Any suggestions, comments, ideas, or other feedback provided by you or any of your employees, contractors, or agents to BetTech in respect of the Services or BetTech, may be used by BetTech as it sees fit (including by exploiting, distributing, or otherwise disclosing the same), without any obligation, compensation, or restriction of any kind.
7.4. Any of Your Content or Your Data that BetTech deems useful in its sole discretion for the purposes of analysis, machine learning, artificial intelligence, service improvement and development, or any other internal purpose may be used by BetTech as it sees fit without any obligation, compensation, or restriction of any kind save for the anonymising of identifying information.
7.5. BetTech reserves the right at any time and in its sole discretion to refuse, block, suspend, or remove any of Your Content and/or Your Data that it determines:
7.5.1. violates its terms and conditions or any BetTech policies, or
7.5.2. is in breach of any contractual obligations or Applicable Laws, or
7.5.3. would reasonably be expected to be threatening to or cause offence to any person or group regardless of intent, or
7.5.4. constitutes Prohibited Conduct; or
7.5.5. is in any way discriminatory, defamatory, obscene, or offensive.
7.6. BetTech does not assume any liability for Your Content or Your Data, and cannot be held responsible for content, data, or the like that others upload, store, or share using the Services.
- Your Systems
8.1. You are solely responsible, and BetTech will have no responsibility or liability of any kind, for the use, content, development, operation, support, or maintenance of your hardware, software, services, systems, databases, and/or other technology that are developed, controlled, or operated by you or on your behalf (“Your Systems“), including: (a) the technical installation and operation of Your Systems; (b) creating and displaying information and content on, through, or within Your Systems; (c) procuring, maintaining, and securing Your Systems including all network connections and telecommunications links from Your Systems to BetTech’s data centres; (d) ensuring that Your Systems are configured to access the Services; (e) ensuring that Your Systems do not violate or infringe the intellectual property rights of any third party; (f) ensuring that Your Systems are not offensive, profane, obscene, libellous, or otherwise illegal; (g) ensuring that Your Systems do not contain or introduce viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature into any part of the Services or data stored or transmitted using the Services; (h) ensuring that Your Systems are not designed to, or utilised for, the purpose of spamming any BetTech subscribers, agents, or end users; and (i) ensuring that Your Systems and any content or data that you submit to us do not violate any Applicable Law or third-party rights.
- Third Party Components
9.1. You acknowledge that the Services may enable or assist you to access the content and data of, correspond with, and purchase, the hardware, software, services, systems, databases, other technologies, and/or other materials owned by third parties, and which are used by BetTech and/or incorporated into the Services with the approval of such third parties (“Third Party Components“). Third Party Components may allow you to, amongst other things, share Your Content and/or Your Data with the provider of such Third Party Components.
9.2. Any interaction you have with Third Party Components is solely at your own risk. BetTech makes no representation, warranty, or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third Party Components, or any transactions completed, and any contract entered into by you with any such third party.
9.3. BetTech does not licence any intellectual property to you as part of any Third Party Components. You agree to assume all risk and liability arising from your use of any such Third Party Components.
9.4. Any contract entered into and any transaction completed in respect of any Third Party Components is between you and the relevant third party, and not BetTech.
10.1. For use of the Services, you will pay BetTech the fees indicated to you by BetTech in writing (“Service Fees“).
10.2. Payment terms for Service Fees are 10 (ten) business days from date of invoice payable by electronic funds transfer (EFT) into a bank account of BetTech’s choosing.
10.3. BetTech has the right to charge:
10.3.1. a late payment fee of 10% (ten percent); and
10.3.2. overdue interest based on the Prime interest rate of South Africa on any amount not paid within 10 (ten) calendar days from the due date thereof.
10.4. Late payments may result in temporary suspension of access to the Services and access will only be reactivated upon receipt of payment in full.
10.5. The Service Fees are stated exclusive of applicable taxes (“Taxes“). If any Taxes are properly chargeable on the provision of any of the Services under this Agreement, you shall pay BetTech, in addition to the Service Fees, an amount equal to the amount of the applicable Taxes against delivery of an invoice that is appropriate and valid under the applicable tax rules.
10.5.1. All amounts due to BetTech shall be paid without any deduction of any kind, whether due to taxes or any other reasons, which is your sole responsibility. For the avoidance of doubt, this includes any potential statutory withholding tax even to the extent it may be eligible to a relief or reclaim.
10.6. BetTech may at any time and without notice to you set off any liability of BetTech to you against any liability you owe to BetTech (in either case howsoever arising and whether any such liability is present or future, liquidated or un-liquidated, and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by BetTech of its rights in this clause shall be without prejudice to any other rights or remedies available to BetTech under this Agreement or Applicable Law.
- Intellectual Property Rights
11.1. The intellectual property rights belonging to a Party as at the effective date shall remain vested in that Party.
11.2. It is agreed that, as between the Parties, BetTech is the proprietor of and/or holds exclusive rights, title, and interests in and to the Services (including all additions, Documentation, intellectual property, and any BetTech tools and methodologies contained therein).
11.3. Except for the licence rights contemplated in section 4, you shall have no rights, title, or interests in and to the Services, and all such rights shall remain solely and exclusively with BetTech and/or its licensors (as applicable).
11.4. All intellectual property rights in and to any Third Party Components vest in and shall remain vested in the third party proprietors of such Third Party Components.
11.5. To the extent required and permissible by law, you hereby cede, assign, transfer, and make over to BetTech any and all intellectual property in the Services that may vest in you by operation of Applicable Law, which cession, assignment, transfer, and making over BetTech hereby accepts. You agree to take any and all steps as may be required by BetTech to (a) give effect to this clause and (b) protect (by registration or otherwise) and/or enforce BetTech’s rights in any jurisdiction in the world. In this regard, you shall provide all reasonable information, materials, co-operation, and/or assistance to enable BetTech to prove subsistence of its intellectual property rights in and to the Services and BetTech’s title to them before any court or wherever such proof may reasonably be required.
11.6. It is expressly agreed that BetTech shall be free to use any general knowledge, skill and experience, and any underlying ideas, concepts, know-how, methodologies, and techniques acquired by BetTech as a result of this Agreement or the provision of the Services.
12.1. Notwithstanding the cancellation or termination of this Agreement, neither Party (“Receiving Party“) shall at any time in the course or after the conclusion of this Agreement disclose to any person or use in any manner whatever the other Party’s (“Disclosing Party“) information which is proprietary and/or confidential (“Confidential Information“). Notwithstanding the aforegoing, the Receiving Party may disclose the other Party’s Confidential Information:
12.1.1. to the extent required by Applicable Law (other than in terms of a contractual obligation of the Receiving Party); and
12.1.2. to permit the use thereof by its employees, representatives, and professional advisers to the extent strictly necessary for the purpose of implementing or enforcing this Agreement, obtaining professional advice, or conducting its business; it being specifically agreed that any disclosure or use by any such employee, representative, or adviser of such Confidential Information or other information for any other purpose shall constitute a breach of this Agreement.
12.2. The provisions of this section 12 will not apply to any Confidential Information of a Party which:
12.2.1. is publicly available at the time of its disclosure or becomes publicly available (other than as a result of disclosure by the Receiving Party or any of its authorised agents contrary to the terms of this Agreement); or
12.2.2. was lawfully in the possession of the Receiving Party or its authorised agents (as can be demonstrated by its written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to it being so disclosed; or
12.2.3. following such disclosure, becomes available to the Receiving Party or its authorised agents (as can be demonstrated by its written records or other reasonable evidence) from a source other than the Disclosing Party (or its authorised agents), which source is not bound by any duty of confidentiality owed directly or indirectly to the Disclosing Party in relation to such information.
- Advertising and Attribution Rights
13.1. BetTech shall have the right to publicise the fact that the Services are being used by you with your approval (not to be unreasonably withheld).
13.2. Subject to clause 13.1, you will allow BetTech to use your use of the Services as a global reference site to showcase BetTech’s technology to other potential licensees. BetTech will ensure that you experience minimal disruption during any such showcasing and that the potential licensee will not be exposed to any of your Confidential Information.
- Data Protection
14.1. You will comply with all applicable Data Protection Laws in processing any Personal Information that you provide to, or receive from, us in the context of the Services including any and all Personal Information of your end users. You agree that you are solely responsible for posting and adhering to any privacy notices and policies as well as obtaining any consents from end users of Your Systems, which may be required under applicable Data Protection Laws for their use of Your Systems and for your provision or use of any Personal Information relating to them in the context of the Services.
14.3. You will provide all reasonable cooperation, assistance, and information required to enable us to comply with our obligations under applicable Data Protection Laws including but not limited to assisting us:
14.3.1. in responding to requests from data subjects wishing to exercise their privacy rights;
14.3.2. in ensuring compliance with any security breach notification and communication, and privacy impact assessment requirements;
14.3.3. in responding to requests from competent supervisory authorities in relation to Personal Information processed in the context of this Agreement; and
14.3.4. in conducting any assessment to validate compliance with applicable Data Protection Laws.
14.4. You will implement all reasonable measures in accordance with Applicable Laws (including all applicable Data Protection Laws) to protect the Services (including any Personal Information processed in the context thereof) from any unauthorised access or use through Your Systems.
14.5. If at any time you become aware of or have reasonable grounds to suspect the occurrence of any unlawful or unauthorised access to Personal Information provided by you or on your behalf through the Services (“Security Breach“), then you will without undue delay: (a) notify us; (b) proactively and at our request provide us with all information reasonably required subject to Applicable Laws in respect of the Security Breach; and (c) cooperate with us in taking any reasonable and appropriate action to address the Security Breach, and mitigate any adverse effects for BetTech, its affiliates, any involved third party, and any involved data subjects. Subject to mandatory requirements under Applicable Law, you will, prior to disclosing any information about any Security Breach relating to the Services to any third party (including any supervisory authority), use your best efforts to consult with us and take into account our reasonable requirements as to the timing, contents, and manner of disclosure, and the parties to whom disclosure is made.
- Warranties, Indemnities, and Limitations of Liability
15.1. Except as expressly and specifically provided in this Agreement:
15.1.1. you assume sole responsibility for results obtained from the use of the Services by you and for conclusions drawn from such use. BetTech shall have no liability for any damage caused by errors or omissions in any information, instructions, Documentation, or scripts provided by BetTech to you in connection with the Services, or any actions taken by BetTech at your direction; and
15.1.2. the Services are provided on an “as is” basis.
15.2. You acknowledge that the Services will not always run error free or without interruption. BetTech takes every reasonable precaution it deems appropriate against bugs and other errors, but it does not warrant that the Services will meet any special requirements of condition, quality, performance, merchantability, or fitness for any purposes, or that the Services will generate particular revenues or profits when you use them.
15.3. Any information that you wish to rely on from BetTech must be obtained in writing from an authorised BetTech representative. You cannot rely on oral representations made or purportedly made by BetTech or on descriptions, illustrations, or specifications contained in any catalogues or publicity material produced by BetTech, which are only intended to convey a general idea of the Services mentioned in them.
15.4. Each Party warrants and represents that as at the Service Commencement Date:
15.4.1. it has full capacity, right, power, and authority to enter into and perform its obligations under this Agreement; and
15.4.2. there are no actions, suits or proceedings, or regulatory investigations pending or, to that Party’s knowledge, threatened against or affecting that Party before any court, administrative body, or arbitration tribunal that might affect the ability of that Party to meet and carry out its obligations under this Agreement.
15.5. Nothing in this Agreement shall constitute any representation or warranty by BetTech that:
15.5.1. technical assistance, support, Documentation, and training made available to you in terms of this Agreement shall result in you being successful in the conducting of your business; or
15.5.2. access to and the use of any of the Services will result in the improvement, optimisation, and/or advancement of your business.
15.6. You hereby warrant that you have as at the Service Commencement Date obtained and will maintain for the duration of this Agreement, all necessary Approvals required in terms of any Applicable Laws for the lawful operation of your business and your use of the Services. For the avoidance of doubt, the licence granted to you in this Agreement shall not extend to those jurisdictions in which you do not have all relevant Approvals and/or have not complied with Applicable Laws. Your failure to obtain and/or maintain any required Approvals shall entitle BetTech to terminate this Agreement immediately.
15.7. Except to the extent expressly set out in this Agreement, the Services are provided “as is” and BetTech, to the extent permitted under mandatory obligations of Applicable Laws, specifically disclaims all warranties, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice.
15.8. BetTech shall not be liable to you whether in contract, delict, under statute, or otherwise (including in each case negligence) for any of the following types of losses or damages arising under or in relation to the Agreement, the Services, or any part thereof (irrespective of whether you were advised in advance of the possibility of such loss or damage):
15.8.1. any losses, damages, claims, or expenses arising from or relating to the Services where such losses, damages, claims, or expenses are not directly attributable to a destructive element in the BetTech source code developed by BetTech;
15.8.2. any losses, damages, claims, or expenses arising from any negligence of BetTech or its employees that fall short of gross negligence;
15.8.3. special, indirect, or consequential loss or damage whatsoever; or any indirect loss of profits, business contracts, anticipated savings, goodwill, or revenue; experienced by you;
15.8.4. any delay, failure, breakdown, damage, or injury caused to you by:
126.96.36.199. hardware, software, services, systems, databases, other technologies, and/or support services supplied to, or obtained from, third parties irrespective of whether said items are supplied or obtained by you or, to the extent allowed by Applicable Law, by BetTech;
188.8.131.52. anything pertaining to the Documentation and/or the Services modified, corrected, or adapted by you or any third party not authorised to do so in terms of this Agreement;
184.108.40.206. the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software;
220.127.116.11. damage to the Services caused by you;
18.104.22.168. neglect of Your Systems infrastructure through which the Services are accessed;
22.214.171.124. failure of electrical power (unless caused by the negligence of BetTech and/or its personnel); and
126.96.36.199. a combination of hardware, software, services, systems, databases, and/or other technology functioning in conjunction with the Services where the said items have not been approved (by way of a written notice to you by BetTech) as being compatible with the Services.
15.9. You hereby agree to indemnify BetTech from claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services provided that BetTech has given you prompt notice of such claims and provides reasonable co-operation to you in the defence of such claims.
15.10. Subject to clause 15.11, BetTech will indemnify you against any claim that your use of the Services in accordance with this Agreement infringes any South African patent effective as at the Service Commencement Date.
15.11. To the extent allowed by Applicable Law, BetTech’s total liability whether in contract delict (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract shall in no circumstances exceed a sum equal to EUR 50,000.00 (fifty-thousand Euros).
15.12. BetTech will not be responsible or liable for any failure to perform or delay in its performance of its obligations under this Agreement to the extent that such failure or delay is due to circumstances beyond BetTech’s reasonable control (such as labour disputes, acts of God, war or terrorist activity, malicious damages, accidents, or compliance with any Applicable Law). BetTech will endeavour to minimise the effects of such events and to perform those of its obligations that are not affected.
15.13. You hereby indemnify and keep BetTech indemnified against all fines, levies, penalties, losses, damages, costs, or expenses and other liabilities (including legal fees) incurred by, awarded against, or agreed to be paid by BetTech in circumstances where any of your end users makes a claim or complaint with regards to our actions to the extent that such actions directly result from instructions received from you.
15.14. You hereby indemnify BetTech to the fullest extent permitted by Applicable Law against any claim howsoever arising from your end users access and use of the Services. Such indemnity includes but is not limited to claims arising from a breach by you or your end users of data privacy and protection, and consumer protection laws. Your breach of this clause 15.14 shall constitute a breach of this Agreement and any costs incurred by BetTech resulting from such breach will be recoverable in full from you, including but not limited to any fines, judgements, civil claims, etc. arising from any claims contemplated in this section 15.
16.1. This Agreement does not constitute either of the Parties an agent or legal representative of the other for any purposes whatsoever and neither of the Parties shall be entitled to act on behalf of, or to represent, the other unless duly authorised thereto in writing.
16.2. Each Party appoints the relationship managers who shall be primarily responsible for the management of the relationship between the Parties (“Relationship Managers“) and shall act as the primary point of contact in communications and negotiations between the Parties.
16.3. Either Party may at any time notify the other Party of a change in any Relationship Manager by giving a written notification of such change to the other Party (including by email) with such change being effective on receipt by the addressee of such written notification.
- Breach and Termination
17.1. Each Party will have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately on written notice to the other Party if the other Party (“Defaulting Party“) is in material breach of any of its material obligations under this Agreement and provided that the breach in question is capable of remedy, the Defaulting Party has failed to remedy that breach within 5 (five) days after receiving written notice requiring it to remedy that breach.
17.2. BetTech shall be entitled to terminate this Agreement immediately on written notice to you if you:
188.8.131.52. commit an act of insolvency as defined in the Insolvency Act 24 of 1936, or being a corporate body commit an act which would be such an act of insolvency if committed by a natural person;
184.108.40.206. become insolvent, are declared bankrupt, or become financially distressed;
220.127.116.11. take steps to place yourself, or you are placed, in liquidation or under business rescue;
18.104.22.168. enter into or attempt to enter into any scheme similar to, or in the nature of, a composition, compromise, or scheme of arrangement, release, or novation with any or all of your creditors;
22.214.171.124. take steps to de-register yourself or you are de-registered;
126.96.36.199. cease trading or conducting business in the ordinary course thereof; and/or
188.8.131.52. have given any representation or warranty in terms of this Agreement that proves to be incorrect in any material manner or respect whatsoever.
17.3. BetTech shall be entitled to terminate the Agreement immediately on written notice to you in the event of a change to Applicable Law which materially impacts:
17.3.1. the provision and/or use of the Services in the Territory; or
17.3.2. the commercial rationale underlying either this Agreement or the Commercial Agreement governing your use of the Services.
- Consequences of Termination
18.1. Termination of this Agreement for whatever reason shall not affect the rights of the Parties that have accrued prior to the date of termination.
18.2. Upon termination or expiration of this Agreement, you must immediately:
18.2.1. pay to BetTech any sums due to BetTech in terms of this Agreement that are still outstanding;
18.2.2. cease any and all activities authorised in this Agreement; and
18.2.3. surrender to BetTech or destroy (as directed by the BetTech) all content, data, information, and other items provided during the course of this Agreement (and all copies thereof) excluding Your Content and Your Data.
18.3. You may request a copy of Your Content and/or Your Data from BetTech on termination of the Agreement no later than 30 (thirty) calendar days from service termination (“Data Demobilisation Period”). Any such request will be honoured by BetTech to you subject to availability of resources and the payment of an appropriate fee indicated at the time of the request. Subject to BetTech’s rights in clause 18.4, any data not so requested and not used by us shall be deleted after the 30-day period.
18.3.1. You are solely responsible for ensuring that before the end of the Data Demobilisation Period, that you request from us any of Your Content, Your Data, or any other of your information or data (including transactional data) that you may require post termination (“Demobilisation Data”) and that you do so in accordance with your rights under this Agreement or with our prior written consent (not to be unreasonably withheld).
18.3.2. In relation to any Demobilisation Data received by you from us, it is your sole responsibility to confirm the accuracy of the information contained therein.
18.4. On termination of this Agreement for any reason whatsoever, BetTech:
18.4.1. will not be responsible for managing the return or destruction of any of Your Content and/or Your Data which has been made available by you to Third Party Components;
18.4.2. will have no obligation to retain any data including Your Content or Your Data. We shall only retain such data as we are specifically required to retain subject to clause 18.4 for our own compliance or record keeping purposes. For the avoidance of doubt, we shall not retain any of your data for your purposes including but not limited to your compliance or tax purposes and we make no undertaking in this regard;
18.4.3. shall retain at its sole discretion: any data including Your Content and/or Your Data that may be required by Applicable Law; and any content, data, and other information related to your use of the Services including Your Content and Your Data on an anonymised basis, which data shall include but not be limited to derivatives of such data; (“Retained Data”); and
18.4.4. does not commit or otherwise undertake to retain the Retained Data in its original form, or otherwise in a complete or accurate form, or in any form that might be usable to anyone other than BetTech and/or its supervisory authorities.
18.5. BetTech shall not be responsible for any harm that you may suffer as a result of a failure to observe or account for the provisions set out in this clause 18, and BetTech gives no warranties express or implied in relation to the substance of any Demobilisation Data, and accepts no responsibility whatsoever in regard to the correctness thereof.
- Dispute Resolution
19.1. If the Parties are unable to resolve any dispute arising under this Agreement by means of joint co-operation or discussion between the individuals directly involved with the execution of this Agreement, within one week after a dispute arises or such extended time period as the Parties may in writing allow, then such a dispute shall be submitted to the most senior executives of the Parties who shall endeavour to resolve this dispute, within 10 (ten) calendar days after it having been referred to them.
19.2. Should the dispute not be resolved in the aforesaid manner, then it shall be referred to mediation.
19.3. If the Parties are unable to agree to a mediator or to resolve any dispute by way of mediation within 10 (ten) days of any Party to the dispute in writing requesting that the dispute be resolved by mediation, then the dispute shall be submitted at the instance of any Party to, and decided by, arbitration as set out below.
20.1. Any dispute arising out of, or in connection with, this Agreement or the subject matter of this Agreement, including without limitation any dispute concerning:
20.1.1. the existence of the Agreement apart from this clause;
20.1.2. any claims relating to intentional misconduct, including fraud or fraudulent misrepresentations;
20.1.3. any claim relating to the enforceability and enforcement of this Agreement;
20.1.4. the interpretation, application, and effect of any provisions in the Agreement;
20.1.5. the Parties’ respective rights or obligations under the Agreement;
20.1.6. the rectification of the Agreement;
20.1.7. any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority, or other cause relating to, or in any way connected with, the Agreement or any part or portion thereof;
20.1.8. the breach, expiry, termination or cancellation of the Agreement, or any matter arising out of the breach, expiry, termination, or cancellation; and
20.1.9. any claims in delict, compensation for unjust enrichment, or any other claim, whether or not the rest of the Agreement apart from this clause is valid and enforceable, shall be referred in the first instance to mediation as set out in 19.2, failing which to arbitration as set out in this clause 20.
20.2. A dispute which cannot be settled by mediation as set out in clause 19.2 shall be administered and finally determined in accordance with Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa (“AFSA“) without recourse to the ordinary courts of law, except as explicitly provided for in clause 20.10.
20.3. Either Party may initiate arbitration proceedings pursuant to this clause by sending a request for arbitration to the other Party to this Agreement and to AFSA.
20.4. The existence and content of arbitration proceedings as well as any ruling, award, or outcome shall be treated as confidential by the Parties as well as the members of the arbitral tribunal. This will apply unless:
20.4.1. the Parties will require disclosure to the extent that it is required by a Party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a court, forum, or tribunal;
20.4.2. the Parties consent in writing to the disclosure of certain information;
20.4.3. the information is needed for the preparation or presentation of a claim, or defence in the arbitration;
20.4.4. the information is already in the public domain without any Party breaching this clause; or
20.4.5. the arbitral tribunal has ordered that it be disclosed upon application by a Party.
20.5. The Parties shall agree on the arbitrator who shall be an attorney or senior advocate (with at least 10 (ten) years’ experience in commercial legal practice). If agreement is not reached within 10 (ten) business days after any Party calls in writing for such agreement, the arbitrator shall be an attorney or senior advocate (with at least 10 (ten) years’ experience in commercial legal practice and who need not be on the panel of arbitrators of AFSA) nominated by the Chairman of AFSA for the time being.
20.6. The arbitration shall be held through technological means in a virtual forum, where the participants may be in different locations, through the use of teleconferencing, video conferencing, or web conferencing or other technologies which may be used for the same or similar purposes in future (“Virtual Arbitration“). The Virtual Arbitration shall be held during times based on South African Standard Time. The Parties shall endeavour to ensure that it is completed as expeditiously as possible after notice requiring the dispute to be referred to arbitration is given.
20.7. The decision of the arbitrator shall be final and binding on the Parties who shall summarily carry out that decision, and either of the Parties shall be entitled to have said decision made an order of any court with competent jurisdiction.
20.8. In addition to any other powers that an arbitrator might have, the arbitrator shall have the power to:
20.8.1. grant any remedy or relief permissible in law, whether provisional or final, including but not limited to conservatory relief and injunctive relief; and
20.8.2. rule on his or her own jurisdiction including any objections with respect to the existence, validity, or effectiveness of the arbitration agreement. The arbitrator may make such ruling in a separate award on jurisdiction or in an award on the merits, as he or she considers appropriate in the circumstances.
20.9. There shall be no appeal against any award or decision of the arbitrator.
20.10. No clause in this Agreement which refers to arbitration shall mean, be deemed to mean, or interpreted to mean that either of the Parties shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
21.1. You acknowledge and agree that we have the right in our sole discretion to modify this Agreement from time to time. You will be notified of modifications through updates on https://www.bettech.com/en/masterservicesagreement or via email to your elected Relationship Manager. You will be responsible for reviewing and becoming familiar with any such modifications. Changes will not apply retroactively and will become effective after they are posted, but changes required by Applicable Law may if required thereunder be effective immediately.
- Notices and Domicilia
22.1. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by email.
22.2. Any notice to a Party: –
22.2.1. must be sent by the sending Party’s board of directors or executives, and addressed to the receiving Party’s board of directors or executives unless sent by, or addressed to either Party’s attorneys of record;
22.2.2. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
22.2.3. delivered by hand to a responsible person during business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
22.2.4. sent by e-mail to its chosen e-mail address, shall be deemed to have been received on the date after despatch (unless the contrary is proved).
22.3. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
- Miscellaneous Matters
23.1. In this Agreement:
23.1.1. references to a statutory provision include any subordinate legislation made from time to time;
23.1.2. words importing the masculine gender include the feminine and neuter genders, and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
23.1.3. where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a business day, in which event the last day shall be the next succeeding business day;
23.1.4. any provision in this Agreement which is or may become illegal, invalid, or unenforceable in any jurisdiction affected by this Agreement shall as to such jurisdiction be ineffective to the extent of such prohibition or unenforceability, and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction; and
23.1.5. the use of any expression covering a process available under South African law (such as but not limited to insolvency or business rescue) shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction.
23.2. Consumer Laws. If this Agreement and/or the Services provided under this Agreement are regulated by consumer protection and/or electronic communications and transaction laws, it is not intended that any provision of this Agreement contravenes any provision of the consumer protection and/or electronic communications and transaction laws, and therefore all provisions of this Agreement must be treated as being qualified, if necessary, to ensure that the provisions of the consumer protection and/or electronic communications and transaction laws (as applicable) are complied with.
23.3. No stipulation for the benefit of a third person. Save as is expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of a third person (i.e., a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.
23.4. No representations. A Party may not rely on any representation which allegedly induced that Party to enter into this Agreement unless the representation is recorded in this Agreement.
23.5. Variation, cancellation, and waiver. No contract varying, adding to, deleting from, or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
23.6. Indulgences. The grant of any indulgence, extension of time, or relaxation of any provision by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent, or adversely affect, the exercise by the grantor of any existing or future right of the grantor.
23.7. Cession and delegation
23.7.1. BetTech may cede any or all of its rights, or delegate any or all of its obligations under this Agreement to any person (including but not limited to any group or affiliate companies) without your prior written consent, provided that BetTech gives you notice thereof.
23.7.2. You may not cede any or all of your rights, or delegate any or all of your obligations under this Agreement without the prior written consent of the BetTech.
23.8. Applicable law. This Agreement is to be governed, interpreted, and implemented in accordance with the laws of the Republic of South Africa.
23.9. Jurisdiction of South African courts. The Parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape High Court, Cape Town for any proceedings arising out of or in connection with this Agreement.
23.10.1. Each Party shall bear its own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing, and implementation of this Agreement.
23.10.2. Any costs (including all legal costs on an attorney and own client basis) and VAT, incurred by a Party arising out of or in connection with a breach by another Party shall be borne by the Party in breach.
23.11. Independent advice
23.11.1. Each of the Parties hereby respectively agrees and acknowledges that:
184.108.40.206. it has been free to secure independent legal advice as to the nature and effect of each provision of this Agreement and that it has either taken such independent legal advice or has dispensed with the necessity of doing so; and
220.127.116.11. each provision of this Agreement (and each provision of the annexures) is fair and reasonable in all circumstances, and is part of the overall intention of the Parties in connection with this Agreement.
23.12. Good faith. The Parties shall at all times act in good faith towards each other and shall not bring any of the other Parties into disrepute.
23.13. Co-operation. Each of the Parties undertakes at all times to do all such things, perform all such acts, and take all such steps, and to procure the doing of all such things, within its power and control, as may be open to it and necessary for and incidental to the putting into effect or maintenance of the terms, conditions, and import of this Agreement.
23.14. Survival. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for such survival.