User
Agreement
entered
into between:
CallOut IT Systems
(Proprietary) Limited
(trading as ‘CallOut
Solutions’)
Company
Registration No: 2023/785976/07
and
The
CallOut Solutions Platform User
(‘Customer’)
Tale of Contents
1. Interpretation and Definitions.................................................................. 1
2. The services.......................................................................................... 1
3. Service content..................................................................................... 2
4. Use of the Service.................................................................................. 3
5. Fees.................................................................................................... 5
6. Service Provider or Pro-registration and purchase leads................................ 6
7. Pay per lead (‘PPL’)................................................................................ 6
8. Fixed Price (“FP”)................................................................................ 7
9. B2B Project or jobs............................................................................. 7
10. Links and user content......................................................................... 7
11. Use of information.............................................................................. 8
12. Arrangements with service providers.................................................... 10
13. Intellectual property rights.................................................................. 11
14. Indemnity........................................................................................ 11
15. Limitation of liability.......................................................................... 12
16. Our rights........................................................................................ 13
17. General........................................................................................... 14
Schedule ‘A’.............................................................................................. 1
User
Agreement
entered
into between:
CallOut IT Systems
(Proprietary) Limited
(trading as ‘CallOut
Solutions’)
Company
Registration No: 2023/785976/07
and
The
CallOut Solutions Platform User
(‘Customer’)
Tale of Contents
1. Interpretation and Definitions.................................................................. 1
2. The services.......................................................................................... 1
3. Service content..................................................................................... 2
4. Use of the Service.................................................................................. 3
5. Fees.................................................................................................... 5
6. Service Provider or Pro-registration and purchase leads................................ 6
7. Pay per lead (‘PPL’)................................................................................ 6
8. Fixed Price (“FP”)................................................................................ 7
9. B2B Project or jobs............................................................................. 7
10. Links and user content......................................................................... 7
11. Use of information.............................................................................. 8
12. Arrangements with service providers.................................................... 10
13. Intellectual property rights.................................................................. 11
14. Indemnity........................................................................................ 11
15. Limitation of liability.......................................................................... 12
16. Our rights........................................................................................ 13
17. General........................................................................................... 14
Schedule ‘A’.............................................................................................. 1
1.
Interpretation
and Definitions
1.1
We
are CallOut IT Systems (Proprietary) Limited trading as CallOut Solutions. Our
registered company number is 2023/785976/07.
1.2
Our
registered address is 63 Ratanang Avenue, Ipopeng, Kimberley, 8301.
1.3
Where
we refer to ourselves in this Agreement, this is also taken to include (where
the context allows) our affiliates, and/or their employees, associated and
contracted persons, and persons supplying services to us or them. You may
contact us using the details and channels displayed on our website.
1.4
Where
we refer to ‘you’ in this Agreement, this also includes any person that
accesses or uses our Service on your behalf. The “Agreement” includes the terms set out here and the Privacy Policy
accessible here
2.
The services
2.1
The
“Service” consists of the use of the CallOut Solutions platform together with
our website, mobi-sites, the content, software applications and the services
made available to customers and service providers via the internet, mobile
devices and/ or any form of media constitutes the services we provide.
2.2
Any
person using the Service to promote their services (except us) shall be a
“Service Provider” or “Pro”. Any person using the Service with the intention of
employing one of the “Service Providers” enlisted thereon shall be a
“Customer”. Any service which the User intends to perform using one or more
Service Provider shall be referred to as a “Project” or “Job”. As part of
receiving the Service, you may from time to time upload information to the
Service or otherwise provide us or other users of the Service with information
relating to you or your subcontractors (“User Information”).
3.
Service
content
3.1
The
majority of the material on the Service originates from our users. We rely on Users
to objectively provide descriptions and feedback for any prior projects for
which they have utilised any of our Service Providers through the Service. We
have little or no editorial control over the material, and we therefore cannot
guarantee the accuracy, timeliness, completeness, performance or fitness for any particular purpose of the material available through the
Service.
3.2
We
cannot accept responsibility for errors, omissions, or inaccurate material
available through the Service, and make no warranty that the Service will be
uninterrupted or error free, or that any defects will be corrected.
3.3
Whilst
we take steps to prevent misuse of our systems, we cannot warrant that the
Service will be free of viruses or other malicious code and accept no liability
for loss or damage caused from the transmission of such code.
3.4
We
recommend that you always use up-to-date firewalls and anti-virus software to
protect your equipment and data.
3.5
The
ratings and other information about Service Providers found on the Service are
provided by our users, not by us. Unless governed by a specific agreement, we
do not endorse or recommend any particular Service Provider and where a Pro is
put in contact with a User on the CallOut Solutions Platform, unless specified
otherwise, this contact will be based on algorithmic technology based on the
project and location of the job of the User.
3.6
Any
material you obtain from the Service is used at your own risk, and we will not
be liable for any loss or damage arising out of or in connection with access or
use of the Service (except to the extent that such liability cannot be excluded
by law).
3.7
When
you use our Service to establish contact with any of the Service Providers, we
do not guarantee that the Service Provider will be willing or able to perform
work on your Project.
4.
Use of the
Service
4.1
You
are responsible for ensuring that you are legally entitled to publish any
information which you upload to our Service. You may only use the Service for
genuine projects, for which you have a genuine intention to appoint one or more
of our Service Providers and your intention is to do so subject to agreeing to
appropriate terms. You may not utilise any of our Service Providers for any
Project which is not legal.
4.2
It is
your responsibility to select a suitable Service Provider and to negotiate the
terms of any Project to be performed by the Service Provider selected. Although
we take care to supply information to Users pertaining to Service Providers
which we believe to be true, we do not guarantee the veracity of any such
information.
4.3
We
make no warranty regarding any goods or services purchased or obtained through
conducting a Project having utilised the Service, or any transactions entered
into through the Service, and you should in all cases make your own enquiries.
In particular, it is ultimately your responsibility to carry out appropriate
checks on any Service Provider that you are considering engaging and to request
evidence of relevant trade or industry accreditations, and to satisfy yourself
that the Service Provider is solvent and has appropriately qualified and
certified personnel to complete the Project prior to contracting.
4.4
You
should not engage any Service Provider or make any deposit or other payment to
them without having conducted such checks to your full satisfaction. While our
hope is that you will be happy with every Service Provider you find through the
Service, you should not engage any Service Provider if you have any doubts or
concerns about it.
4.5
We
will not be a party to any contract made between you and any Service Provider
and therefore we shall not be liable for any loss or damage that results from
any dealings between you and any Service Provider including but not limited to
any direct, indirect or consequential or inconsequential loss of any kind.
4.6
You
agree not to use the Service in any unlawful manner and in particular shall
not:
4.6.1
defame, abuse, harass, stalk, threaten or
otherwise violate the legal rights (including rights of privacy and publicity)
of others;
4.6.2
publish, post, upload, distribute or disseminate
(“Post”) any inappropriate, defamatory, abusive, infringing, obscene,
discriminatory or otherwise unlawful material;
4.6.3
Post any material that infringes any patent,
trademark, copyright, trade secret or other proprietary right of any person;
4.6.4
Post any corrupted files, files that contain
viruses, or any other code that may damage the operation of a computer or other
electronic device;
4.6.5
conduct or forward surveys, contests and shall
not forward pyramid schemes or chain letters;
4.6.6
download any file Posted by another user that
the user knows, or reasonably should know, cannot be legally distributed in
such manner;
4.6.7
impersonate another person or entity, or
falsify or delete any author attributions, legal or other proper notices or
proprietary designations or labels of the original or source of software or
other material contained in a file that is Posted;
4.6.8
cause the Service to be interrupted, damaged,
rendered less efficient or such that the effectiveness or functionality of the
Service is in any way impaired; or
4.6.9
restrict or inhibit any other user from using
and enjoying the Service.
4.7
You
agree that you will comply with the Privacy Policy.
4.8
It is
recorded that CallOut IT Systems may from time to time engage in affiliate or
joint programmes with other organisations for the purposes of promoting the
CallOut Solutions Platform Service in some way or other and you hereby consent
to the processing of your personal information for the purposes of such
engagements.
5.
Fees
5.1
Our
fees are quoted in ZAR (South African Rands), and we may change them from time
to time, either temporarily – for example, in connection with certain
promotions or the launch or marketing of new services, or for an extended
period or permanently until our next fees review. We will notify you of such
changes to our fees by posting such changes through the Service. Such changes
will not affect any existing payment obligation to us, but they will be
effective for any new or further use of the relevant service from the date on
which we post the revised fees on the Service.
5.2
You
are responsible for paying all applicable fees when they are due. If you fail
to pay the relevant fees, without prejudice to any other right or remedy we may
be entitled to under this Agreement or by law, we may limit your ability to use
the applicable services. If your payment method fails or your account is past
due, we may collect fees owed using other collection mechanisms.
5.3
You
acknowledge and agree that if you breach any of the provisions set out in the
section entitled ‘Use of the Service’ above, we may suspend or terminate your
access to any paid-for features, and/or remove
any content you have Posted, including content included in Postings or
otherwise relating to Projects.
5.4
We
reserve the right to charge a fee for using any specific feature(s) of the
Service in the future. Where we charge a fee for using a specific Service
feature, this will be made clear to you through the Service and
you will not be charged unless you specifically request that feature, for
example by clicking on the relevant ‘Book Now’ button.
5.5
The User
shall pay for the services in any manner that may be prescribed from time to
time by Callout IT Systems.
5.6
The
parties record that, presently, the User shall settle the account for the
services received as per the rules set out in Schedule ‘A’.
5.7
Our
fees are typically as follows:
5.7.1
Service Provider or Pro registration
and access to leads
5.7.1.1
Service Providers or Pros are not required to
pay any fees during registration but are required for access to leads.
5.7.2
Pay per lead (“PPL”)
5.7.2.1
The Service Provider or Pro will pay to
CallOut IT Systems the applicable fee for accessing the lead to be connected to
the User.
5.7.2.2
The User will be connected to as many Service
Providers or Pros as the service allows within their surrounding area as
decided by the Service Provider and agree the terms of the job directly with
the Service Provider or Pro, including acceptance of quote and payment requirements.
5.7.2.3
The User will be required from time to time
depending on nature of service be required to pay some service booking fees to
CallOut IT Systems and will also be responsible for all dealings with the Pro.
5.7.2.4
We will not be held liable for any payments
made to the Pros.
5.7.3
Projects for jobs
5.7.3.1
The User processes payment directly using the
online payment facility on the CallOut Solutions Platform or using Cash.
CallOut IT Systems will make payment to the Service Provider or Pro upon
completion of the project or job and reconcile electronic and cash payments
once weekly.
6.
Service Provider
or Pro-registration and access to leads
6.1
Service Providers or Pros are not required to pay fees during
registration but are required for the accessing of leads.
7.
Pay per lead
(‘PPL’)
7.1
The Service Provider or Pro will pay to CallOut IT Systems the
applicable fee for access to the lead to be connected to the User.
7.2
The User will be connected with as many Service Providers as possible
within their area as per the settings of the Service Providers on their
application and agree to the terms of the job directly with the Service
Provider or Pro, including acceptance of quote and payment requirements. The User
will be required to pay from time to time and per nature of service a booking
fees to CallOut IT Systems and is solely responsible for all dealings with the
Pro. We will not be held liable for any payments made to the Pros.
8.
Fixed Price and Variable Price (“FP” and “VP”)
8.1
The User will pay the price as quoted and accepted for a project or job
to CallOut IT Systems. The User and Service Provider or Pro agrees for CallOut IT
Systems to accept such payment on behalf of the Service Provider or Pro and
then to make payment on behalf of the User to the Service Provider or Pro upon
completion of the project or job, less the applicable commission fee that
CallOut IT Systems will charge to the Service Provider or Pro.
9.
Links and user
content
9.1
It is
not possible for us to review all websites which are linked to from the Service
(or link to the Service), and you should therefore take care when following any
link. We cannot accept liability for any loss or damage that may be suffered as
a result of following any links. You agree not to Post links to any websites.
9.2
Although
our hope is that all users will use the Service responsibly, and we require all
users to ensure that all content that they post on the Service is lawful, we
are not responsible for reviewing or policing user content and so it is
possible that our Service may carry offensive, harmful, inaccurate or otherwise
inappropriate material, or in some cases, reviews that have been mislabelled or
are otherwise deceptive. We urge you to exercise proper judgement and to use
caution and common sense when using our Service.
9.3
We
have no obligation to monitor the information posted on the Service. You are responsible for your own communications and for any
consequences arising out of them.
9.4
We do
not guarantee the truthfulness, accuracy, or reliability of any material Posted
on the Service, or endorse any opinions expressed on the Service. You should
take all due care in relying on material Posted on the Service, as this is done
at your own risk.
9.5
It is
important for you to note that all posted material is made public, and that
others may read communications made via the Service without the author’s
knowledge. Always use caution when giving out any personally identifying
information about yourself, and do not give personally identifying information
about any other person unless entitled to do so.
10.
Use of
information
10.1
General
10.1.1
You are solely responsible for the content,
accuracy, and completeness of the User Information, and agree only to provide
true, accurate, current and complete information.
10.1.2
You acknowledge that we may edit, modify or
remove any parts of User Information, at our discretion. This includes, but is
not limited to cases where breach of any of the provisions of this Agreement
has occurred. In such a breach, we reserve the right to suspend or terminate
your access to the Service without notice.
10.1.3
By providing User Information you grant to us
a royalty-free, perpetual, irrevocable, non-exclusive license to use, copy,
reproduce, modify, publish, edit, translate, distribute, perform, and display
the material alone or as part of other works in any form, media, or technology
whether now known or hereafter developed, and to sub-license such rights
through multiple tiers of sub-licensees. The foregoing grants shall include the
right to exploit any proprietary rights in such materials, including but not
limited to rights under copyright, trademark, service mark or patent laws under
any relevant jurisdiction. You also waive any moral rights you have in the
materials. Do not Post any materials on the Service that you would not want us
to use in this way.
10.1.4
You consent to information about the device
you use to access the Service being collected and processed for fraud
prevention purposes and we may use third parties (and information they provide)
to help us prevent fraud or unauthorised access to our Service.
10.1.5
You agree not to copy, reproduce, modify,
create derivative works from, distribute or publicly display any content
(except for your User Information) from the Service without our prior written
permission.
10.2
Compliance
with the Protection of Personal Information Act 4 of 2013
10.2.1
In order to provide our Service we process personal
information of Service Providers and may share certain personal information
with you. To the extent that we provide you with personal information or any
other information of a Pro, you agree that you shall:
10.2.1.1
treat such as confidential and not share the
information with any other person;
10.2.1.2
only use such information for the purpose of
contacting them in relation to the particular project or job for which you were
provided such information, and for no other purpose whatsoever;
10.2.1.3
delete all information relating to the Pro upon
completion of the project or job and only retain information deemed necessary
in order to comply with any applicable laws; and
10.2.1.4
at all times and in all respects comply with the law
when provided with such information.
10.2.2
You further agree, accept, understand and
consent to the processing of your personal information by the Company for the
purposes of providing our Service to you as well as in accordance with the
Company’s compliance with applicable laws and legislation.
11.
Arrangements
with service providers
11.1
The User
shall under no circumstances, at any time engage with or contact a Service
Provider other than through the Platform, failure to comply with this provision
may result in the User being barred access to the platform. We will further not
be held liable for any dealings and arrangements directly between Users and
Pros.
11.2
The
Service Provider is not in any way affiliated with CallOut IT Systems. In other
words, the Service Provider is not an employee, representative, agent or
contractor of CallOut IT Systems. CallOut IT Systems shall in no way, manner or
form be regarded as a temporary employment service provider. It is therefore
the User’s sole responsibility to agree to the terms of the Services (including
but not limited to, what services will be provided, working hours and fees)
with the Service Provider and to enter into an appropriate agreement with the
Service Provider. For the avoidance of doubt, CallOut IT Systems shall not be a
party to such agreement and shall not in any way accept any obligations or
liability under such agreement.
11.3
It is
the User’s responsibility to ensure that it takes the required and necessary
precautions for all projects or jobs with Service Providers. Should you have a
dispute with a Service Provider, you must address such dispute directly to the
Service Provider concerned. However, you agree to notify the details of the
dispute to us as soon as reasonably practicable.
11.4
We
may decide to investigate any grievances held by you or by Service Providers
and may discuss any such investigation with all involved parties. We may take
any lawful action we deem necessary in the event of a grievance, but likely
outcomes of a grievance investigation include:
11.4.1
you and the Service Provider being allowed to
continue using the Service;
11.4.2
your and/or the Service Provider’s access to
the Service being suspended for a period of time;
11.4.3
your and/or the Service Provider’s access to
the Service being terminated and banned for a definite or indefinite period.
11.5
Save as provided above, we cannot be involved
in your dealings with Service Providers and, in the event that you have a
dispute with one or more Service Providers, you hereby release us from any and
all claims, demands and damages of every kind and nature, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way connected with
such disputes.
12.
Intellectual
property rights
12.1
You
acknowledge that all present and future copyright and other intellectual
property rights subsisting in, or used in connection with, the Service and any
part of it (the “Rights“), including the manner in which the Service is
presented or appears and all information and documentation relating to it is
our property (or that of our licensors), and nothing in this
Agreement shall be taken to transfer any of the Rights to you.
12.2
Solely for the purposes of receiving the Service,
we hereby grant to you for the period during which the Service is provided a
non-exclusive, non-transferable licence to use the Rights.
13.
Indemnity
13.1
It is
your responsibility to ensure that you are entitled to provide the User
Information and you therefore agree to indemnify us against any and all
expenses, damages and losses of any kind (including reasonable legal fees and
costs) incurred by us in connection with any actual or threatened claims of any
kind (including without limitation any claim of trademark or copyright
infringement, defamation, breach of confidentiality, false or misleading
advertising or sales practices) arising from your provision of User
Information.
13.2
We
shall indemnify you against any and all expenses, damages and losses of any
kind (including reasonable legal fees and costs) incurred by you in connection
with any actual or threatened claims of any kind (including without limitation
any claim of trademark or copyright infringement, defamation, breach of
confidentiality, false or misleading advertising or sales practices) that any
material on the Service generated and uploaded by us infringes the intellectual
property of any third party.
14.
Limitation
of liability
14.1
Notwithstanding any other provision, nothing in
this Agreement shall exclude or limit either party’s liability for death or
personal injury caused by that party’s negligence, fraud or fraudulent
misrepresentation, or any other liability that cannot lawfully be excluded or
limited.
14.2
The sole warranty that we make is that we promise
to provide any features of the Service that you pay for with reasonable skill
and care.
14.3
If you are dissatisfied with the Service, or the
terms of this Agreement, your sole remedy under this Agreement shall be to
discontinue use of the Service.
14.4
Without limiting the foregoing, we shall have no
liability for any failure or delay resulting from any matter beyond our
reasonable control.
14.5
Other
than as set out above, we shall not be liable in contract, delict, negligence,
statutory duty, misrepresentation, or otherwise for any loss or damage
whatsoever arising from or in any way connected with this Agreement.
14.6
Save
as expressly set out herein, all conditions, warranties and obligations which
may be implied or incorporated into this Agreement by statute, common law, or
otherwise and any liabilities arising from them are hereby expressly excluded
to the extent permitted by law.
14.7
We shall not be liable for any loss of
business, loss of profits, business interruption, loss of business information,
loss of data, or any other pecuniary loss (even where we have been advised of
the possibility of such loss or damage).
14.8
We
cannot guarantee the day or time that we will respond to any email, telephone
or written enquiries or Website form submissions. Each of the provisions of
this clause shall be construed separately and independently of the others
15.
Our rights
15.1
We
reserve the right at all times to edit or remove from the Service any
information or materials which we consider breaches or is likely to breach this
Agreement, or which is or may be otherwise illegal or objectionable, and to
disclose any information we deem appropriate to satisfy any applicable law,
regulation, legal process, police request or governmental request.
15.2
Without
prejudice to the generality of the above, we reserve the right to terminate the
provision to you of the Service or restrict your access to the Service at any
time and/or to terminate this Agreement immediately on notice in the event that
you are in material breach of this Agreement.
15.3
We
reserve our rights to:
15.3.1
modify or discontinue temporarily or permanently all or part of the
Service;
15.3.2
terminate the provision to you of the Service or restrict your access to
the Service; and/or terminate this Agreement at any time without notice for any
reason whatsoever, without liability of any kind to you (provided always that
any such termination shall be without prejudice to the rights and liabilities
of each party accrued prior to such termination).
15.4
We
may vary the terms of this Agreement from time to time and shall post the
revised terms on the Website and Mobile Application. If you do not agree to the
revisions made by us to the terms of this Agreement then you have the right to
stop using Service, and should do so immediately. All revisions that we make to
the terms of this Agreement shall become effective on the date four business
days after the date on which the revised terms in question are posted on the
Website and Mobile Application.
15.5
Your
continued use of the Service after that date will constitute acceptance of the
amended Agreement.
16.
General
16.1
Clause
headings are inserted for convenience only and shall not affect the
interpretation of this Agreement.
16.2
If
any provisions hereof are held to be illegal or unenforceable, such provisions
shall be severed and the remainder of this Agreement shall remain in full force
and effect unless the business purpose of this Agreement is substantially
frustrated, in which case it shall terminate without giving rise to further
liability.
16.3
You
may not assign, transfer or sub-contract any of your rights hereunder without
our prior written consent. We may assign, transfer or sub-contract all or any
of our rights at any time without consent.
16.4
No
waiver shall be effective unless in writing, and no waiver shall constitute a
continuing waiver so as to prevent us from acting upon any continuing or
subsequent breach or default.
16.5
This
Agreement constitutes the entire agreement as to its subject matter and
supersedes and extinguishes all previous communications, representations (other
than fraudulent misrepresentations) and arrangements, whether written or oral
with the exception of the Terms of Use and/or the Service Provider User
Agreement where these have been entered into.
16.6
You
acknowledge that you have placed no reliance on any representation made but not
set out expressly in this Agreement.
16.7
Any
notice to be given under this Agreement may be given via e-mail, regular mail,
or by hand to the address provided on the Website or otherwise as notified by
one party to the other.
16.8
Nothing
herein shall create or be deemed to create any joint venture, principal-agent
or partnership relationship between the parties and neither party shall hold
itself out in its advertising or otherwise in any manner which would indicate
or imply any such relationship with the other.
16.9
Notwithstanding
any other provision in this Agreement a person who is not a party hereto has no
right to rely upon or enforce the terms of this Agreement.
16.10
This
Agreement shall be subject to the laws of South Africa and the parties shall
submit to the exclusive jurisdiction of the South African courts.
16.11
In
the event of any comments or questions regarding this Agreement including the Privacy Policy you can contact us
[email protected] style="mso-bidi-font-size:12.0pt;line-height:150%;mso-ascii-font-family:Calibri;
mso-ascii-theme-font:minor-latin;mso-fareast-font-family:Arial;mso-hansi-font-family:
Calibri;mso-hansi-theme-font:minor-latin;mso-bidi-font-family:Calibri;
mso-bidi-theme-font:minor-latin;color:#1155CC">here.
Schedule ‘A’
Internet
merchant requirements card processing
