Terms and Conditions.

Introduction and definitions

1. 1. These terms and conditions of use (“Terms”) set out the terms and conditions for your non- exclusive and non-transferable right to use the humble Services which are offered to you by Humble Software (Pty) Ltd (registration number: 2012/114432/07) (“humble”) or its related companies (“us”, “we” or “humble”).
   2. The person or entity entering into these Terms as a user of the humble Services – as recorded in the Application Form / Sign Up webpage (http://qa.humblepos.com/sign-up/) together with all individual users using / accessing the humble Services on that person’s behalf (together, “you”, “your” or “User/s”) accept and agree to be bound by these Terms.
   3. Subject to these Terms humble grants you a limited, non-exclusive, non-transferable, revocable licence to use the humble Services.
   4. In these Terms, “humble Services” means humble’s point of sale and inventory management products and services, and any features, technologies or functionality provided by those products or services, offered by us from time to time including:
      1. the humble Till (i.e. the cloud based point of sale software referred to as the iPad / iPhone / iPod Till and the humble Web Till and Android);
      2. humble’s point of sale software program/s (i.e. the humble cloud based point of sale and inventory management software solution incorporating point of sale systems, customer relationship management solutions, analytics and customer loyalty software solutions);
      3. any other point of sale iOS (Apple) and Android applications (“Apps”); and www.humbletpos.com (“the Website”). (Including with, for the avoidance of doubt, all future updates, enhancements, modifications, upgrades to the humble Services and replacements and re-branding thereof)
   5. If you do not agree to any / all of these Terms, then you should not make use the humble Services. Please take note that all rights not expressly granted to you in these Terms are reserved by humble.

Amendments

1. 1. It may be necessary from time to time for us to change these Terms, and should we do so we will endeavour to notify you of such changes either via email or by displaying a notification when you next use the humble Services. If you thereafter continue to use the humble Services, your use will be governed by the updated Terms.
   2. In order to provide you with the best humble Services possible we may from time to time, add, make changes to or remove certain features or functionality of the humble Services. Apps Users may need to install a new or updated version to receive the benefit of those changes.
   3. We may also decide to cease providing all or some of the humble Services at any time, and nothing in these Terms is to be taken as a guarantee that the Apps or any humble Services will always be available either in its current form or at all, or that we will support, maintain or continue to offer the humble Services, or the App.

Account information

1. 1. Please note that you must be 18 years or older to access and use the humble Services.
   2. You agree to provide us with true, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, current and complete.

Cancellation of humble Services

1. 1. We can cancel or suspend your account with us at any time if, in our sole discretion, you have committed a material or persistent breach of these Terms or any other terms applying to your use of the humble Services.
   2. You are entitled to cancel your account with us at any time. You may cancel your account by emailing your request to cancel to support@humbletill.com
   3. If you cancel your account by giving humble notice of cancellation BEFORE your billing date of your current paid up month, your cancellation will take effect at the end of the month in which you have given the notice of cancellation. Any notice of cancellation given on or after your billing date will result in you being charged all Fees due by you for the following month. Your Billing date is the date that Humble Till invoices you each month. Please note that you will not be entitled to any refund of Fees which you may have paid in advance.
   4. If your account is cancelled:
      1. your account will be deactivated or deleted;
      2. all of your rights granted under these Terms will immediately come to an end; and
      3. all of your data and content may be deleted from our system immediately.
   5. Your content cannot be recovered once your account is cancelled. We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.

Fees

1. 1. The fees charged for your use of the humble Services are set out on the Website (“Fees”) and are subject to change. Refer to http://qa.humblepos.com/pricing/
   2. humble is entitled to increase the Fees at our discretion however we will endeavour to notify you (by email or by displaying a message when you next use the humble Services) at least 30 days before increasing the Fees.
   3. Fees are charged in advance on a monthly basis and are non-refundable, including if you only use part of the month or such period of time that you have subscribed for the humble Services. Unless required by law, we will not provide refunds in connection with the humble Services. humble is entitled to change the manner in which we charge for and process Fees at our discretion. We will however endeavour to notify you, (by email or by displaying a message through the humble Services), at least 30 days before such change.
   4. If you are carrying out a free trial of the humble Services (as offered on the Website or the Apps), the free trial will begin on the day that your account is opened and end 14 days later. If you wish to continue to use the humble Services at the end of the free trial period, you will need to pay the required month or year’s Fee.
   5. All Fees are inclusive of Value Added Tax (but exclude any other tax or levy) and you indemnify and hold humble harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest.
   6. humble shall be entitled, without having to provide any notice to you, to terminate / disable your access and / or your use of the humble Services, should you fail to make payment of any / all Fees charged by humble in terms of these Terms.

Adding and removing additional tills from your account

1. 1. You may add additional tills to your account at any time by following the prompts when you are logged into your account on the Website. The additional till(s) will become available immediately.
   2. The Fee charged by humble for additional tills is set out on the Website. (i.e. the monthly Fee calculated on a pro rata basis for the period outstanding in that month/s),
   3. If you wish to remove any additional till/s previously added to your account, you will need to give notice of the removal of the additional till/s by following the prompts which will be available to you when you are logged into your account on the Website (https://account.humbletill.com/login).
   4. Notice of removal of the additional till/s must be given on or before the last business day of your current paid up month in order for the additional till/s to be removed at the end of the current month in which you have given the notice of the removal. Any notice of removal given after such date will result in you being charged the monthly Fee, for all tills on your account prior to the notice of removal being given, for the following month. Again please note that you will not be entitled to any refund of Fees paid in advance.
   5. Removing additional tills from your account may cause the loss of content, or features of capacity of your account. If you choose to remove additional tills from your account, humble does not accept any liability for the resulting loss of data, content, features or capacity.

humble Services are provided to you “as is”

1. 1. The humble Services are provided on an “as is” and “as available” basis, and your use of them is at your sole risk.
   2. We will try to promptly address (during normal business hours) all technical issues that arise in connection with the humble Services. Where possible humble will use its best endeavours to notify you in advance of any failure of, or interruption to the humble Services and where applicable any required maintenance and repairs which may have to be carried out or be performed in order to rectify any such failure, interruption or unavailability of the humble Services where it is in a position to do this.

Warranties

1. 1. We do not warrant that:
      1. the humble Services will meet your specific requirements;
      2. the humble Services will not infringe on any third party rights
      3. the humble Services will be uninterrupted, timely, secure, or error-free;
      4. the humble Services will be accurate or reliable;
      5. the quality of any products, services, information, or other material purchased or obtained by you through the humble Services will meet your expectations; or
      6. any errors in the humble Services will be corrected.
   2. You acknowledge that in using the humble Services you may require a third party supplier to provide you hardware, software, networking, connectivity, storage and other technology in order for you to make use of the humble Services. The acts and omissions of those third party suppliers are outside of humble’s control, and humble does not accept any liability for any loss or damage suffered as a result of any act or omission by a third party supplier.
   3. You are responsible for the payment of charges or extra charges levied by any such third party supplier. This includes but is not limited to the charge levied by an Internet Service Provider and / or provider of hardware, pursuant to your use of the humble Services.
   4. humble shall incur no liability or obligation whatsoever in relation to any transactions and / or contract entered into by you, with any third party supplier.

humble’s liability is limited

1. 1. You indemnify humble and it’s employees, associates, and assigns, against any claims brought by any third parties (including a financial institution) which directly or indirectly arises from the use of the humble Services, regardless of the kind of loss or damage the party attempting to claim may suffer, including direct, indirect, special, incidental or consequential damages, and whether due to the use of, or inability to use, the humble Services.
   2. To the maximum extent permitted by law, humble shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill use, data or other intangible losses (even if humble has been advised of the possibility of such damages), resulting from:

1. 1. 1. the use or the inability to use the Service (in whole or in part) or any technical malfunctions;
      2. the cost of procurement of substitute goods and services;
      3. unauthorised access to, or alteration of, your communications or data;
      4. statements or conduct of any third party regarding the humble Services; or
      5. any other matter relating to the humble Services.
   2. In any case, humble’s maximum aggregate liability under or in connection with these Terms or your use of the humble Services is limited to the amount of the Fees paid by you in the past 12 months.
   3. You are responsible for your use of the humble Service and you indemnify us from any liability suffered by either you or a third party that results from you failing to comply with the specifications, instructions and recommendations for the operation, service and maintenance of the humble Services or any other instrument or device which you may from time to time use which facilitates your use of the humble Services. (Refer to the Quick Start Guides and all updates thereto, provided by humble from time to time, which are available on the Website and / or at https://support.humbletill.com )
   4. You are responsible for all activity that results from the use of the humble Services through your account. You acknowledge and accept that you use the humble Services at your own risk and that you agree to pass such conditions of usage on any third party who too will be compelled to accept that any use of the humble Services is at their own risk, and regardless of when or how such liability arose and whether in contract, delict or otherwise and regardless of whether the liability was foreseen or reasonably foreseeable by humble.
   5. You are responsible for maintaining the security of your account and password. humble will not be liable for any loss or damage that may result from any failure to keep User Names and Passwords secure.
   6. You indemnify humble against all forms of liability, actions, proceedings, demands, costs, charges and expenses which humble may incur or suffer as a result of the use of the humble Services through your account or as a result of your failure to comply with these Terms.
   7. humble shall have no liability to you if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond humble’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant machienry, fire, flood, storm or default of third party supplier.

No malicious or illegal use of the humble Services by you.

1. 1. You must not:
      1. use the humble Services in any unlawful manner, for any unlawful or fraudulent purpose, or in any manner inconsistent with these Terms;
      2. infringe our intellectual property rights or those of any third party in relation to your use of the humble Services;
      3. transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the humble Services;
      4. use the humble Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
      5. collect or harvest any information or data from the humble Services or our systems or attempt to decipher any transmissions to or from the servers running any humble Services;
      6. disclose or distribute information relating to another User of the humble Services to any third party, or use any other User’s information for any marketing purposes unless you have that User’s express permission to do so; or
      7. access or register User logins via bots or other automated methods.
   2. You must not process electronic transactions that you know or should know are fraudulent or unauthorised by the relevant party. You agree that you are responsible for the actions of your employees at all times.

Using the humble Services in a reasonable way

1. 1. You agree to use the humble Services in a reasonable way. If we determine that your use of the humble Services is not reasonable or that your use is causing degraded performance of the humble Services for you or for other Users, we may impose limits on your use of the humble Services.
   2. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.
   3. Limits on your use of the humble Services may include (but are not limited to) the quantities and volumes of the following parameters, per retailer:
      1. storage required to host and backup retailer data;
      2. sales transactions per calendar month;
      3. website views per five (5) minute period;
      4. bandwidth usage per twenty-four (24) hour period; or
      5. outlets, registers, users, products and customers.

Intellectual property

1. 1. You agree that humble owns all of the intellectual property rights existing in the humble Services.
   2. You agree not to challenge or do anything inconsistent with such ownership. You may not publish or use humble’s brand, branding or logos except with humble’s prior written consent.
   3. humble hereby grants you a non-exclusive, perpetual and non-transferable licence to use the humble Services in accordance with these Terms.
   4. You agree that you shall only be entitled to use the humble Services for its intended purpose and you shall not, or cause any other person to:
      1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any portion of the humble Services and/or in any form or media or by any means nor shall you modify or reverse engineer the humble Services, or create derivative works of the humble Software; or
      2. sub-license the humble Services to third parties; or
      3. use the humble Services outside of the use permitted in terms of these Terms.
   5. You acknowledge and agree that humble owns all rights to the intellectual property in the humble Services and except where it is otherwise provided for in these Terms, humble does not grant you any rights to or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other intellectual property rights, other rights or licences in respect of the humble Services.
   6. You agree to permit humble to use information and/or data collected by humble through your use of the humble Services at no cost to humble. In turn humble undertakes to ensure that when making use of such information and/or data your identity is not disclosed by humble to any third party and furthermore that information or data is aggregated before being used. We acknowledge that we have no intellectual property rights to the information or data that you might input and / or disclose to us when making use of the humble Services.
   7. You are invited to provide us with comments, feedback or suggestions on the humble Services and you agree that we will be permitted to use, modify and incorporate any such suggestions without any obligation to you.

Restrictions 

You shall not display any logo or signage of whatsoever nature, relating to the humble Services other than that which is prescribed by humble.

Personal information

1. 1. Both you and humble agree to protect each other’s personal information.
   2. humble undertakes to treat your personal information as confidential and will take all reasonable steps to ensure such protection. humble will only disclose your personal information if it has a legal duty to do so or where you have given your consent to such disclosure. Likewise you undertake to treat humble’s personal information as confidential and to take all reasonable steps to ensure such protection. You agree that you will only disclose humble’s personal information should you have a legal duty to do so or if humble has consented to such disclosure.
   3. You expressly agree that humble may, as part of their credit rating and account maintenance processes, obtain or check your personal information using information from a third party, such as a credit bureau or a government agency and for this purpose humble may disclose your personal information.

Surety

1. 1. If the User is a legal entity, the person who accepts these Terms on behalf of the User will be held responsible for the payment of all amounts due by the User to humble, should the User fail to pay these amounts. This is known as a surety undertaking.
   2. The person who is accepting these Terms on behalf of the User (i.e. you – “the Surety”) are doing so on behalf of the User the Surety acknowledges that he binds himself jointly and severally as surety and co-principal debtor in solidium for all amounts which are now or might in the future become payable by User, including its successors-in-title, assigns, to humble, both current and future and from any other cause howsoever arising.
   3. The Surety agrees to make payment of any legal costs that may be awarded against the Surety on an attorney and own client scale.

General including Breach and Limitation of Liability

1. 1. If we do not insist that you perform any of your obligations under these Terms or should we not immediately enforce our rights against you that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.
   2. Notwithstanding any provision to the contrary contained in these Terms, humble shall not be liable to you for any indirect or consequential loss or damage, including without limitation, loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract.
   3. Should you breach these Terms humble shall have the right to terminate its relationship with you and in doing so humble will have the right to:
      1. retain all amounts already paid by you;
      2. claim all arrear amounts, which are due and owing by you to humble up to date of termination; or
      3. claim payment of all direct and indirect damages resulting from your breach, including but not limited to loss of revenue, all legal costs and disbursements incurred by humble as a result of your breach, including legal costs on the attorney and own client scale, costs incurred in collecting or endeavouring to collect all or any amounts payable by you, collection commissions, all of which will be payable on demand.
      4. The humble Services are provided for use in business, so you are not a consumer.
      5. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Consumer Protection Act 68 of 2008 and the National Credit Act 34 of 2005) do not apply to the humble Services, these Terms or our relationship with you.

Each clause in these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them.

These Terms shall be governed by South African law, and you submit to the exclusive jurisdiction of the South African courts for any matter or dispute arising in relation to these Terms.