1. Your Acceptance
1.1. Thank you for choosing to use AP.POINT’s online application suite (herein after referred to as “Services”), which includes but is not limited to the OPUS, OPUS4business, OPUS4managers, OPUS4restaurants, travelsafeeatsafe application and/or website.
1.2. By using or accessing or continuing to use or access our services or clicking on the “I agree” button that is presented to you at the time of registration, you agree to these terms and conditions of use (“Terms”).
1.3. If you do not agree with these Terms, do not click the “I agree” button and stop using and uninstall the Service immediately.
2. Scope
2.1. These Terms govern your use of the Services as well as any technology, data, information, programs, material and other content that AP.POINT makes accessible to you that references these Terms.
2.2. These Terms incorporate and include AP.POINT’s Privacy Policy, as amended from time to time, a copy of which is available on the AP.POINT website. To the extent that any of the provisions of any applicable AP.POINT policy conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the Service.
2.3. Your use of these Services are further subject to any separate terms and conditions that apply to any contractual arrangements entered into with AP.POINT for subscription or other products provided.
2.4. These Terms shall also apply to any updates and upgrades subsequently provided by AP.POINT in respect of these Services. AP.POINT shall host the Service and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Service from time to time in its sole discretion and in accordance with these Terms as part of its ongoing mission to improve the Service and customers’ use of the Service.
3. Acceptable Use
3.1. You may not use our Services:
3.1.1. in a way prohibited by law, regulation, governmental order or decree;
3.1.2. to violate the rights of others;
3.1.3. to try to gain unauthorized access to or disrupt any service, device, data, account or network;
3.1.4. to spam or distribute malware;
3.1.5. in a way that could harm the Services or impair the use of the Services by anyone else; or
3.1.6. in any application or situation where a failure of the Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.
3.2. Unless permitted by law or as otherwise expressly permitted in these Terms, you must not (nor may you authorise any third person to):
3.2.1. rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Service to a third party;
3.2.2. reproduce, modify, adapt, create derivative works of, the Service;
3.2.3. reverse engineer, disassemble, decompile, transfer, exchange or translate the Service or otherwise seek to obtain or derive the source code or API;
3.2.4. remove or tamper with any disclaimers or other legal notices;
3.2.5. combine the whole or any part of the Service with any other software, data or material;
3.2.6. store or use any part of the data you do not own in an archival database or other searchable database.
3.3. Sharing Content
3.3.1. When you use the Services, any data, templates, information, content, code, video, images or other materials of any type (Materials) you enter remains confidential to you unless you choose to share any Materials with AP.POINT and/or other users.
3.3.2. When you choose to publicly share content, including Materials that you upload, submit or otherwise transmit to or through the Services or the site, or with us, including in the AP.POINT document Library:
3.3.2.1. you warrant that the Materials have not been misappropriated from or breach the intellectual property rights of any other person and that you have the rights to use and provide the Materials and to grant the licenses contained in this Section;
3.3.2.2. you grant to AP.POINT and/or other users of our technologies a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, license to use, publish, exercise the copyright and other intellectual property rights you have in the Materials.
3.3.2.3. You agree that this license includes the right for us to provide, promote, and improve the Services and to make Materials submitted to or through the Services or the site available to other companies, organizations or individuals who use the Services, with no compensation paid to you;
3.3.2.4. you agree to allow us to store or re-format the Materials and display the Materials on the site and in other materials in any way as we choose. We will only use personal information in accordance with our Privacy Policy;
3.3.2.5. you are responsible for ensuring that the Materials and their use, meaning, effect and placement is not:
3.3.2.5.1. defamatory, offensive, unlawful, obscene, harmful, of bad taste, inappropriate and otherwise comply with this provision;
3.3.2.5.2. false, misleading or inaccurate, or otherwise in contravention or in breach of any applicable law;
3.3.2.5.3. confidential or infringes upon any third-party’s personal information protection rights under the Protection of Personal Information Act and intellectual property rights;
3.3.2.5.4. in breach of these Terms; or
3.3.2.5.5. infected with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services; and
3.3.2.6. you indemnify AP.POINT and/or other users against any and all legal fees, damages and other expenses that may be incurred by us and/or other users as a result of a breach by you of the above Terms.
3.4. Downloading Materials
3.4.1. When downloading Materials, you are doing so at your own risk and understand that you are downloading content that has been developed by a third party, has not been validated in any way and is not specific to your requirements and should be not be relied upon in any way.
3.4.2. It is your responsibility to modify any Materials to suit your own specific requirements. Professional advice from a qualified person should be obtained in order to make the Materials specific for your intended use.
3.5. It is your responsibility to satisfy yourself that your use of the Services will allow you to meet any legal obligations applicable to you in respect of your Data and Materials, and AP.POINT disclaims all liability for your non-compliance with any such laws or standards arising from your use of the Services.
3.6. Passwords and login information
3.6.1. You may register your personal information with us via the OPUS Mobile Application and/or Website.
3.6.2. If you register your personal information we will provide you with a user name and password.
3.6.3. You must not provide your username or password to anyone. You are solely responsible for keeping your username or password secret.
3.6.4. You are solely responsible for any Loss you may suffer should any other person use your username or password
4. Intellectual Property Rights
4.1. You agree that all intellectual property of any sort in or associated with the Services, including all code, libraries, programs, software, documentation, content, databases, systems, logos and trademarks are owned either directly by us or by our licensors. You are not authorised to use any of our intellectual property except as is expressly allowed under these Terms.
4.2. Subject to these Terms you may modify a template, training course or incident workflow in the Services for the purposes of developing customizations and additional features of a template, training course or incident workflow.
4.2.1. Any such modifications constitute “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Services, but you may not distribute Your Modifications to any third party.
4.2.2. Notwithstanding anything in these Terms to the contrary, AP.POINT has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Services.
4.2.3. You indemnify, defend and hold AP.POINT harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Service) or your breach of this Section. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of AP.POINT at your expense.
4.3. We may use your company name(s) and logo(s) on our Site, in case studies and other promotional materials.
5. Protection of personal information and Privacy
5.1. AP.POINT recognise the importance of protecting your privacy in respect of your personal information (as this phrase is defined in POPI) collected by us when you use the services and commits itself to complying with the Protection of Personal Information Act (POPIA), 2013.
5.2. In adopting this Privacy Policy, we wish to balance our legitimate business interests and your reasonable expectation of privacy. Accordingly, we will take appropriate and reasonable technical and organisational steps to prevent unauthorised access to, or disclosure of your personal information.
5.3. Where there are reasonable grounds to believe that your personal information has been accessed or acquired by any unauthorised person, we will notify you and the Information Regulator which is appointed in terms of POPIA.
5.3.1. We may delay notifying you of the unauthorised access or acquisition of your personal information if a public body responsible for detection, prevention or investigation of offences or the Information Regulator informs us that notifying you will impede a criminal investigation.
5.3.2. When we notify you of the compromise to the security of your personal information, we will provide you with sufficient information to allow you to take protective measures against the potential consequences of the compromise.
5.4. By using or accessing or continuing to use or access our services, you consent to the collection, collation, processing, storage and/or destruction (hereinafter referred to as “process / processing” and as defined in POPIA), of your personal information amongst for the following purposes:
5.4.1. the purposes of providing you with the Services,
5.4.2. fulfilling any of AP.POINT’s legal obligations, and
5.4.3. fulfilling the legitimate purpose of AP.POINT’s business.
5.5. You acknowledge that all personal information Processed by us may be stored by us and used for any of the purposes above.
5.6. We reserve the right to vary the terms of this Privacy Policy. It is your responsibility to familiarise yourself with the most recent version of this Privacy Policy each time you access the Services.
5.7. What types of personal information do we Process?
5.7.1. The types of personal information that we may Process includes information necessary for our legitimate business interest and the categories of personal information identified in POPI. This may include (amongst other things), in the case of Individuals: your name and identity number, e-mail and physical addresses, postal address, contact information, information relating to your race, gender, ethnic or social origin, age, medical conditions, prescription medication, views or preferences and the pages of the Services viewed by you;
5.7.2. We will limit the types of personal information we Process to only that to which you consent, and which is necessary for our legitimate business interests.
5.8. When will we Process (i.e.collect) your personal information?
Personal information may be Processed by us in several ways, including, when:
5.8.1. you register to make use of the Services;
5.8.2. you make use of the Services;
5.8.3. web servers serving the OPUS Mobile Application and/or Website automatically collect information about pages you visit;
5.8.4. we carry out demographic research; and
5.8.5. you browse the Services and any of the websites associated with the Services.
5.9. How do we Use your personal information?
We may use your personal information for the following, including but not limited to:
5.9.1. In the provision of Services under these Terms of Use;
5.9.2. to verify your identity on the OPUS Mobile Application and/or Website when making use of the Services;
5.9.3. to retain and make available to you information on the OPUS Mobile Application and/or Website as part of the Services;
5.9.4. as a user, to notify and authenticate your identity when you view and access your files, information and or data, and in providing the Services;
5.9.5. as a professional, to check that you are duly registered with professional bodies, organisations, forums etc (as the case may be);
5.9.6. for storage, security and backing up of the information across servers and stored cross-border using the Microsoft Azure services. This may involve a transfer of your information to the OPUS servers across borders
5.9.7 for administrative and legal purposes;
5.9.8. for customer relations;
5.9.9. to monitor web traffic and for internal review, to tailor information to individual visitors and for traffic audits; and
5.9.10. for helping us in any future dealings with you.
5.10. Sharing of your personal information
5.10.1. AP.POINT will not disclose any of your personal information to third parties, except when we have your permission to do so or where we are required to do so in terms of law.
5.10.2. You agree that your de-identified aggregate personal information may be shared under the following circumstances:
5.10.2.1. to our holding companies, subsidiary companies, agents, advisers, service providers and suppliers;
5.10.2.2. to monitor web traffic: web servers serving the OPUS Mobile Application and/or Website automatically collect information about pages you visit. This information is used for internal review, to tailor information to individual visitors and for traffic audits. This information (as well as information from third-party market researchers), on an aggregated, anonymous basis, is provided to advertisers advertising on the OPUS Mobile Application and/or Website. Should you provide personal information online as part of an online advertising promotion or in order to access a third-party service, such information may be provided directly to the advertiser or the third party concerned;
5.10.2.3. promotions: many promotions offer opportunities to request additional information from sponsors or third parties. When you request more information about a particular promotion, your e-mail address may be shared with the sponsor of that promotion;
5.10.2.4. for statistics and advertisement purposes: we may perform statistical analyses in order to measure interest in the various areas of the OPUS Mobile Application and/or Website (for product development purposes) and to inform advertisers as to how many consumers have seen or “clicked” on their advertising banners. We may also use aggregated demographic information to allow advertising banners on the Website to be targeted, in aggregate.
5.10.2.6. for storage, security and backing-up: information will be transferred and stored cross-border using the Microsoft Azure services. AP.POINT ensures that the Hosting services used are POPIA compliant.
5.10.2.5. government and law enforcement agencies, where the law requires that we disclose your personal information to a party, and where we have reason to believe that a disclosure of personal information is necessary to identify, contact or bring legal action against a party who may be in breach of these Terms or may be causing injury to or interference with (either intentionally or unintentionally) our rights or property, other users, or anyone else that could be harmed by such activities.
5.11. Your rights
5.11.1. You have the right to request, that we correct, destroy or delete any of your personal information that we have Processed in accordance with these Terms. The personal information that you may request us to correct, destroy or delete is personal information that has been Processed in accordance with these Terms that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, obtained unlawfully or that we are no longer authorised to retain.
5.11.1.1. You have the right to not have your personal information Processed for purposes of direct marketing by means of unsolicited electronic communications from third parties unknown to you.
5.11.2. You have the right to withdraw your consent for us to Process your personal information at any time.
5.11.3. The withdrawal of your consent can only be made by you on the following conditions:
5.11.3.1. the withdrawal of your consent does not affect the Processing of your personal information before the withdrawal of your consent; or
5.11.3.2. the withdrawal of your consent does not affect the Processing of your personal information if the Processing is in compliance with an obligation imposed by law on us; or
5.11.3.3. the withdrawal of your consent does not affect the Processing of your personal information where such Processing is necessary for the proper performance of a public law duty by a public body; or
5.11.3.4. the withdrawal of your consent does not affect the Processing of your personal information as required by law; or
5.11.3.5. the withdrawal of your consent does not affect the Processing of your personal information as required to finalise the performance of a contract in which you are a party; or
5.11.3.6. the withdrawal of your consent does not affect the Processing of your personal information as required to protect your legitimate interests or our own legitimate interests or the legitimate interests of a third party to whom the information is supplied.
5.11.4. Objecting to the processing of your personal information.
5.11.4.1. You have the right to object to the Processing of your personal information at any time, on reasonable grounds relating to your situation, unless clause 5.11.3 is applicable.
5.11.4.2. You have the right to object to the Processing of your personal information, at any time, if the Processing is for purposes of direct marketing other than direct marketing by means of unsolicited electronic communications and you have not given your consent for that Processing.
5.11.5. You have the right not to be subjected, to a decision which is based solely on the basis of the automated processing of your personal information intended to provide a profile of you. Decisions that you may not be subjected to are decisions that result in legal consequences for you or affect you to a substantial degree without taking appropriate measures to protect your legitimate interests; without being for the execution of a contract that you have received performance for; or decisions made that are not in terms of law or of a code of conduct that specifies what appropriate measure must be taken to protect your legitimate interests.
5.11.6. You have the right to submit a complaint to the Information Regulator regarding an alleged interference with the protection of personal information Processed in accordance with these Terms. The Information Regulator’s contact details will be published by the Government in due course in terms of POPI. When they are published POPIA places a duty on us to inform you what those contact details are and we will do so.
5.11.7. You have the right to institute civil proceedings regarding an alleged interference with the protection of your personal information Processed in accordance with these Terms.
5.11.8. Use of cookies
5.11.8.1. Cookies are pieces of information a Website transfers to a user’s hard drive for record-keeping purposes. Cookies make surfing the web easier for you by saving your preferences and, tracking your online habits, traffic patterns, and making sure you do not see the same advertisement too often. The use of cookies is an industry standard.
5.11.8.2. We may place a “cookie” on your browser to store and sometimes track information about you.
5.11.8.3. While most browsers are initially set up to accept cookies, you can reset your browser to refuse all cookies or indicate when a cookie is being sent. Please note that some parts of the Website will not function properly if you refuse cookies.
5.11.9. Use of IP address
5.11.9.1. An IP address is a number that is automatically assigned to a computer whenever it is connected to the Internet. We log IP addresses, or the location of computers on the Internet.
5.11.9.2. IP addresses are used for the purposes of push notifications to your Internet browser.
5.11.10. Links to other sites
5.11.10.1. When you are using the OPUS Mobile Application and/or Website, you could be directed to other sites that are beyond our control. These other web sites may send their own cookies to you, collect data or solicit personal information. We do not control the privacy policies of those third party web sites.
6. Security
6.1. By using the Services, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a Device for the purposes of the Services, for all transactions and other activities carried out while using the Service, whether authorized or unauthorized.
6.2. You understand that use of the Services involves transmission of your data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks.
6.3. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. However, we will take all reasonable necessary steps to protect your date in accordance with our responsibilities with POPIA.
7. Disclaimer, Limitation on Liability and Indemnity
7.1. Except as expressly stated in these Terms, we do not make any representation or warranty (express or implied) in respect of the Services, any Materials or any other goods or services provided by AP.POINT to you, including, without limitation, any implied warranty:
7.1.1. of merchantability.
7.1.2. of fitness for a particular purpose.
7.1.3. arising from a course of performance, course of dealing, or usage of trade;
7.1.4. of non-infringement of third party rights; or
7.1.5. against hidden defects.
7.2. The Service any Materials are provided on an “as is”, “with all faults” and “as available” basis and without any further warranties of any kind. We make no warranty that operation of the Service or any Materials will be uninterrupted or error free or that all defects will be corrected.
7.3. Without limiting the above, you acknowledge that:
7.3.1. you are using the Services at your own risk;
7.3.2. the Services are not a substitute for professional advice;
7.3.3. you are solely responsible for the use of the Service and agree that any safety audits, training courses or incidents conducted using the Service are only part of establishing a safe system of work, which would typically require you to undertake additional and comprehensive gap analysis and risk assessments along with specific safe work method statements and safety training; and
7.3.4. you have not relied on any representation in ordering the Services or any goods and services from us.
7.4. To the maximum extent permitted by law, we exclude completely all liability whatsoever for any claims, liability, loss or damage of any kind however caused (including negligence) arising out of or in connection with any goods or services provided by us including the Services and its access, use or performance, including, without limitation, we are not liable for:
7.4.1. misuse of the Services or any Materials;
7.4.2. use of the Services or any Materials with third party data, software or hardware which is incompatible with the Services and/or not recommended by us;
7.4.3. reduced performance or non-availability of the Services or any Materials as a result of network connections; or
7.4.4. errors in the Services or any Materials resulting from your configuration or manipulation of the Services or any Materials, in each case not specifically recommended in writing by us.
7.5. Under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, the Services or any Materials.
7.6. To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.
7.7. Notwithstanding the above, to the maximum extent permitted by law, in no event shall our aggregate liability for any claims arising out of or related to these Terms exceed the amount that you paid, if any, to us for access to or use of the Service during the six months period immediately prior to the event giving rise to such liability.
7.8. You agree to indemnify AP.POINT and its related parties, officers, agents and employees (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses (on a full indemnity basis) arising from or relating to:
7.8.1. your use of the Service or any Materials;
7.8.2. a breach of these Terms by you; and
7.8.3. your breach of any applicable law.
8. Breach of these Terms
8.1. In the event of a breach of any of these Terms, your use of the Services may be immediately suspended and terminated, in accordance with this provision.
8.2. Entirely at the discretion of AP.POINT your use of the Services may be suspended until such time as the cause of the breach has been removed and/or the breach rectified. In the event that you fail to rectify the breach within 7 days’ of receipt of the notification from AP.POINT to do so, your access and any registration account will be deactivated and terminated.
8.3. Without limiting any other remedies available, AP.POINT has the unfettered right to remove, delete or modify any Materials that it considers to be inappropriate, at its absolute discretion, without consultation with you.
8.4. You must promptly notify us in writing of any breach of these conditions of use, and the steps taken you to rectify or cure the breach where possible.
8.5. The termination of Services will be without prejudice to any other remedies available to AP.POINT under these Terms, in law, or otherwise.
8.6. You may terminate at any time with notice to AP.POINT, but you will not entitled to any credits or refunds as a result of convenience termination, in the case of prepaid but unused Services.
8.7. Upon termination of your use of the Services and/or your account registration:
8.7.1. the rights and licenses granted by AP.POINT to you will cease immediately (except as set forth in this Section);
8.7.2. you must cease all use of the Services and any third party Materials;
8.7.3. you are required to delete the Services and any third party Materials made available to you under these Terms, including any AP.POINT confidential information from your systems as applicable (including any third party systems operated on your behalf) and, if requested by us, provide written certification to us that you have done so at our request; and
8.7.4. you undertake not to attempt to access the Services or any data stored in the Services, any third party Materials or the Site after the date of termination.
8.8. After termination AP.POINT will provide you access to, the data, including email, provided, generated, transmitted or displayed via the Services by you for a commercially reasonable period of time at ours then-current rates for the applicable Services. After a commercially reasonable period of time, we will delete your data by removing pointers to it on our active and replication servers and overwriting it over time.
9. Amendments
9.1. We may update or modify these Terms from time to time, including any referenced policies and other documents.
9.2. Where a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate, posting on our Site, through your account, or in the Services itself).
9.3. In the event that you object to the updated Terms, as your exclusive remedy, you may choose not to renew and/or consent, and cancel and terminate the Services and your account registration with AP.POINT.
10. General
10.1. These Terms are to be governed by the laws in force in the Republic of South Africa.
10.2. The parties agree to submit to the non-exclusive jurisdiction of the courts of the Republic of South Africa.
10.3. If any provision of these Terms is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms shall be construed in a manner as to give greatest effect to the original intention of these Terms.
10.4. The waiver of any right or failure of either of us to exercise in any respect any right provided in these Terms in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms.
10.5. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and internet disturbance) that was beyond the party’s reasonable control (Force Majeure).
10.6. Your use of any website or software that is not provided by us to access or download the Services shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Services.
10.7. Any notices to you may either be posted on the Site or given in writing (which may be by email) to the address last notified by you to AP.POINT.
10.8. Any notices to AP.POINT, and any questions, concerns or complaints relating to the Service shall be in writing and addressed to:
Enquiry Officer, AP.POINT Unit 10, 52 Chartwell Drive, Umhlanga Rocks, 4320 South Africa
or given by email to: info@ap-point.co.za
10.9. You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.
