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USER AGREEMENT

 

INDEX

  1. Definitions
  2. Introduction
  3. Agreement
  4. Duration
  5. User’s Rights and Responsibilities
  6. Matchi’s Rights and Responsibilities
  7. Payment
  8. Confidentiality
  9. Intellectual Property
  10. Warranties
  11. Liability and Indemnity
  12. Termination
  13. Governing Law
  14. Domicilium
  1. 1.DEFINITIONS AND INTERPRETATION

1.1  The meanings of the following words and phrases are set out below. Where these words are used in capitalised form in the Agreement, they will have the meanings ascribed herein below.

Agreement

means the agreement between the Parties, consisting of these Terms and Conditions and any other annexure, appendix or policy stipulated as being part hereof

Confidential Information

means all documents, software, data, records, forms and other information that the either Party provides to the other Party in order to give effect to the terms of this Agreement that:

  • are marked as confidential, or
  • the disclosing Party has advised as being confidential, or
  • due to its character and nature, a reasonable person would treat as confidential, or
  • any Solution and any and all Solution Details

Contract

means an agreement entered into between a Solution Provider and the User

Solution provider

means an authorised solution provider in good standing, who has subscribed to the Website, and who has created and developed or has an interest in, a concept or a Solution, which it wishes to or has submitted to the Website, for publication on the Website, subject to the terms of an agreement concluded between the Solution provider and Matchi

Solution

means a developed inventive or innovative concept or product developed-, constructed or otherwise produced by an Solution provider, which may range in maturity up to a fully developed concept or Solution, which is already a mature or viable prototype, pilot project, proof of concept or product, and includes the Solution Details

Solution Details

means the complete description of the Solution and how it works including all data, details, information, diagrams, videos and supporting documents

Intellectual Property

means and includes patents, inventions, registered designs, copyright, trade marks, know-how, trade dress, confidential information and other related intellectual property

KPMG/KPMG Member Firm(s)

means any one- or all member firms of the KPMG network of independent firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity, including KPMG South Africa as the context may indicate

KPMG Client/s

means a client of KPMG which is engaged by KPMG with a view of obtaining a right or license to use or obtain ownership of a Solution. Such KPMG Client may by agreement with KPMG Matchi become a User

KPMG South Africa

means KPMG Services (Pty) Ltd., a member firm of the KPMG network of independent firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity, which wholly owns all operational rights in KPMG Matchi

Law

means the law of the Republic of South Africa, which is and will be the law that will govern all aspects of the Agreement and all aspects of the relationship between the Parties

KPMG Service Pty Ltd

KPMG South Africa

KPMG Matchi News Content

means all articles, reports and trend briefings, both public and private and as provided by KPMG Matchi on the Website

 

 

Member

means and includes users and solution providers of the Website

Membership

refers to the status of a Member that is in compliance with the terms applicable to Members

 

Parties

means the parties to this Agreement and “Party” shall refer to either one as the case may be

Personal Information

means personal information as defined in the Protection of Personal Information Act, No. 4 of 2013 or any other law or regulation applicable to the information of a data subject and with which KPMG Matchi obligated to comply

Problem Statement

means a statement setting out the problem, challenge or difficulty the Solution seeks to address

Services

means the Services set out in this Agreement that KPMG Matchi agrees to provide in terms of this Agreement

User

means the person or entity interested in obtaining a right or license to use or obtain ownership of an Solution and who is a Member. The User is the counterparty to this Agreement as stipulated on the cover page hereof

Website

means the KPMG Matchi website which attracts and receives Solutions from Solution providers, and generally deals with facilitating, introducing and matching Solutions and Solution providers with Users

1.2          In this Agreement, unless the context otherwise requires:

1.2.1      if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;

1.2.2      in this Agreement, a Party includes a reference to that Party’s successors in title and assigns allowed in law;

1.2.3      any reference in this Agreement to:

1.2.3.1   "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;

1.2.3.2   "law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;

1.2.3.3   "person" means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality;

1.2.4      the words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "includes" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it; The eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples, and where general words follow particular and specific words, the general words must not be confined to the particular or specific words used in the context.

1.2.5      the words "shall" and "will" and "must" used in the context of any obligation or restriction imposed on a party have the same meaning;

1.2.6      words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;

1.2.7      words and expressions defined in this Agreement shall also apply in the interpretation of the same words and phrases in annexures or schedules to this Agreement;

1.2.8      a reference to any statutory enactment shall be construed as a reference to that enactment as at the Commencement Date and as amended or substituted from time to time;

1.2.9      unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day;

1.2.10    if the due date for performance of any obligation in terms of this Agreement is a day which is not a business day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day;

1.2.11    where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;

1.2.12    the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply;

1.2.13    the singular shall import and include the plural and vice versa;

1.2.14    words indicating a gender shall import and include other genders

1.2.15    in this Agreement, the words "clause" or "clauses" and "annexure" or "annexures" and "schedule" or "schedules" refer to clauses and annexures or schedules to this Agreement.

  1. 2.INTRODUCTION
  2. 1This Agreement and any terms or conditions, policies and/or documents referred to in or incorporated into the Agreement comprise the entire Agreement between the Parties. This Agreement applies to the relationship between the Parties before and after acceptance of the User as a Member.
  3. 2The primary purpose of the Website and of KPMG Matchi in relation to the Website is to facilitate the submission of Solutions by Solution providers, to publish Solutions on the Website, and to enable the User to view, assess and by agreement with Solution providers, use or obtain Solutions. This Agreement between KPMG Matchi and the User specifically excludes the facilitation of transactions between a Solution provider and the User. In the event that KPMG South Africa is requested by a Solution provider or a User to facilitate a transaction as envisaged herein, separate terms shall be agreed to, to govern such facilitation.
  1. 3.AGREEMENT
  2. 1This Agreement sets out the whole agreement between the Parties related to the subject matter hereof. No change to the Agreement will be of any effect or consequence unless in writing and signed by an authorised representative of each of the Parties.
  1. 4.DURATION

The duration of the User’s Membership is indefinite, subject to the terms of this Agreement, as may be amended from time to time, as well as either Party’s right to terminate this Agreement as provided herein further below.

  1. 5.USER’S RIGHTS AND RESPONSIBILITIES
  2. 1Users have the option of subscribing to the Website for either one of two categories, namely:
    1. 1.1Sampler User; or
    2. 1.2Corporate User
  3. 2Rights and Responsibilities of Sampler Users:
    1. 2.1Users in this category shall have limited rights on the Website.
    2. 2.2Users in this category shall not be required to pay a subscription fee.
    3. 2.3Users in this category shall in particular have the right to view anonymised Solutions and have access to KPMG Matchi News Content.
    4. 2.4Users in this category shall have no other rights of access other than as stipulated in clause 5.2.3 above and shall specifically have no right to view full Solution content or engage with Solution providers for the obtaining of any right to Solutions published on the Website.
  4. 3Rights and Responsibilities of Corporate Users:
    1. 3.1Users in this category shall be required to pay a subscription fee in accordance with the payment terms set out herein further below.
    2. 3.2Users in this category shall have full access to all Solutions (excluding Solution Details).
    3. 3.3 Users in this category shall be enabled, subject to this Agreement, to engage with Solution providers to negotiate in good faith for obtaining of license to use- or ownership of Solutions.
    4. 3.4Users in this category shall be entitled to view KPMG Matchi News Content.
  1. 4Rights and Responsibilities of all Users:
    1. 4.1The User shall be bound by this Agreement in all transactions relating to the viewing of Solutions and further authorised use of the Website as stipulated in clauses 5.2 and 5.3 above.
    2. 4.2Subject to the parameters provided in clauses 5.2 and 5.3 the User is entitled to view an unlimited number of Solutions and the same Solutions for an unlimited amount of times until the Solution is removed from the Website in terms of the agreement between KPMG Matchi and an Solution provider or the Solution is otherwise obtained for exclusive use by another User.
    3. 4.3The User shall submit its full details, onto the Website.
    4. 4.4The User may become a Solution provider subject to separate agreement between the User and KPMG Matchi.
    5. 4.5In the event that a User is interested in acquiring ownership or a license for use of the Solution, they may contact the Solution provider initially via , for preliminary discussions. The User may subsequently, at its option, choose to communicate directly with the Solution provider in order to negotiate terms for such transaction.
    6. 4.6In dealing with KPMG Matchi and other Members, the User shall exercise good faith and act with integrity. The User shall be honest in its dealings with other Members and refrain from fraudulent, dishonest and any other objectionable conduct.
    7. 4.7The User shall comply with all laws and regulations in force from time to time. The User shall not be involved in any criminal or unlawful activity.
    8. 4.8The User shall ensure that its workplaces and employment environment comply with international standards regarding issues such as health and safety and employment equity. The User shall not make use of slavery or child labour.
    9. 4.9The User may not engage in any discriminatory conduct, including, without limitation, discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
    10. 4.10The User shall avoid all forms of harassment of other Members or any other persons.
    11. 4.11The User shall at all times comply with all laws and rules regulating competition and anti-trust matters. The Solution provider shall refrain from all anti-competitive conduct and unlawful competition.
    12. 4.12The User shall at all times adhere to the KPMG Anti-Bribery and Corruption Policy.
  1. 6.KPMG MATCHI’S RIGHTS AND RESPONSIBILITIES
  2. 1KPMG Matchi shall on receipt of the User’s details on the Website, as required, and after the satisfactory completion of the necessary KPMG South Africa risk management procedures, review the User’s details in accordance with the applicable KPMG South Africa risk management policy and procedure and either accept or decline the User as a Member. KPMG Matchi reserves the right, at any stage, to terminate the User’s Membership, in its sole discretion and without cause.
  3. 2KPMG Matchi shall, subject to the remainder of the provisions of this Agreement, make available such content to the User as is permitted dependent on the category of the User as per clause 5 above.
  4. 3KPMG Matchi shall reserve the right to elect Solutions to be published on the Website. KPMG Matchi is under no obligation to place any submission or Solution on the Website and shall not be liable in any manner whatsoever for a failure to do so. KPMG Matchi reserves the right to, at any stage, attend to a full review of Solutions published on the Website and, in it’s sole discretion, remove it from the Website. KPMG Matchi shall not be obliged to provide any reasons for any decision relating to the removal of a submission or Solution.
  5. 4KPMG Matchi may remove any Solution that has become the subject of a Contract between an Solution provider and a User. KPMG Matchi shall not be obligated to provide the User with any reasons for such removal.
  6. 5KPMG Matchi makes no warranty or representation, express or implied, regarding Solution providers or the Solutions they submit or which is published on the Website. The User shall be responsible for obtaining independent professional advice regarding Solution providers, their Solutions and transactions pertaining thereto, including negotiations and finalisation of Contracts.
  7. 6KPMG Matchi shall not incur any liability of whatever nature arising, in any way from any injury, claim, loss or damage to any person, including the User, as a result of any participation on the Website or the use of any Services provided by KPMG Matchi.
  8. 7KPMG Matchi does not act as the agent of the User or that of Solution providers. Furthermore, nothing herein contained shall constitute either Party to be the partner, representative, agent, joint-venturer or employee of the other Party.
  9. 8KPMG Matchi shall process all the User’s Personal Information submitted on the Website (if any) in accordance with the provisions of the Protection of Personal Information Act, No. 4 of 2013 or other data protection legislation or regulation which may be applicable to the relevant Member and with which Matchi is obligated to comply.
  1. 7.PAYMENT

Corporate Users as defined in clause 5 herein above, shall pay a monthly subscription fee of XXXXX. HOW WILL THIS PAYMENT BE MADE???

  1. 8.CONFIDENTIALITY
  2. 1KPMG Matchi may receive Confidential Information about the User’s business in the course of providing the Services. The User may similarly receive Confidential Information regarding KPMG Matchi’s business, or that of Solution providers. Both Parties will keep confidential and will not disclose the other Party’s Confidential Information or that of the Solution providers to any third party. This does not apply to Confidential Information that:
  3. 1.1is in the public domain; or
  4. 1.2a Party is required by Law to disclose; or
  5. 1.3a Party is required to disclose to its insurers or legal advisers; or
    1. 1.4is necessary for a Party to disclose in order reasonably to perform the Services which includes disclosure to Solution providers; or
  6. 1.5is information that a Party independently developed; or
    1. 1.6a Party received from a third party without restriction and without a breach of a duty of confidentiality.
  7. 2KPMG Matchi may, once a User is registered as a Member on the Website, share all Confidential Information with a Solution provider as and when the User wishes to engage in discussions with a Solution Provider. Solution providers will be bound by appropriate Confidentiality measures prior to receiving disclosure of any Confidential Information.
  8. 3The provisions of this clause 8 shall be regarded as a stipulatio alteri in favour of a Solution provider as it pertains to the Confidential Information of a Solution Provider and may be enforced by a Solution Provider at any time at its election.
  9. 4The User agrees to keep confidential and not to disclose to any third party any methodology or technology KPMG Matchi uses to perform the Services.
  10. 5Any and all information (including Confidential Information and Personal Information) received from the User, shall be stored and processed by KPMG Matchi in the Republic of South Africa.
  1. 9.INTELLECTUAL PROPERTY
  2. 1KPMG Matchi shall at all times retain full ownership and all rights in respect of all Intellectual Property it owns and which relate to the Website and the KPMG Matchi business and system.
  3. 2Rights granted in terms of this Agreement does not grant either Party or any third party a license to use- or the assignment of any Intellectual Property. Such further use, assignment or transfer of ownership shall be the subject of a Contract between the User and a Solution provider.
  4. 3The User grants to KPMG Matchi the right to use the User’s name, trademarks, logo, biographical information, pictures, images and likeness in any part of the Website (including public and secure areas) and in correspondence with Solution providers, as well as in marketing and promotional correspondence and materials and for any purpose related to the provision of the Services.
  1. 10.WARRANTIES
  2. 1The User warrants and undertakes that:
    1. 1.1the User possesses all rights, consents and permissions to participate as a Member on the Website;
    2. 1.2The User shall not submit any Personal Information to the Website in respect of which it does not have the right to submit. The User warrants that it shall only submit its own Personal Information or that of its personnel and confirms that it has the right and/or all necessary permissions to submit such Personal Information. The User further warrants that it has- or has procured the right for KPMG Matchi to process such Personal Information. In the clause, the word “process” shall be interpreted to include any action necessary to be taken by KPMG Matchi in order to provide the Services.
  3. 2The User indemnifies and holds KPMG Matchi harmless against all liability, claims, costs, expenses and penalties suffered or incurred by KPMG Matchi arising from any breach by the User of the warranties set out in this clause.
  4. 3KPMG Matchi makes no representations whatsoever and gives no guarantee whatsoever in relation to any submission or Solution submitted or placed on the KPMG Matchi Website. All representations, conditions and warranties whatsoever, whether implied or otherwise, are hereby expressly excluded.
  5. 4KPMG Matchi does not warrant that the User’s participation on the Website shall result in the conclusion of any Contracts with Solution providers. KPMG Matchi expressly disclaims and excludes all implied or other warranties relating to the submission of Solutions by Solution providers and the participation by the User on the Website.
  6. 5The entire risk as to the performance, competence, viability, merchantability or any aspect of Solutions is assumed by the Solution provider and will be the subject of a Contract between the User and the relevant Solution provider.
  7. 6Except as expressly set out in this Agreement, KPMG Matchi makes no other representations, extends no warranties, express or implied, and assumes no liabilities or responsibilities with respect to any aspect or facility provided by or relating to the Website.
  1. 11.LIABILITY AND INDEMNITY

Without derogating from the generality of any of the provisions hereof, KPMG Matchi shall not at any time be liable for any claims of whatsoever nature and howsoever arising for direct, indirect or consequential loss or damage which may be suffered by the User or any other third party in connection with the Service provided by KPMG Matchi, the Users participation on the Website or any resultant Contracts, including loss of profit or loss of business and whether the User has been informed of such possibility or not and the User hereby indemnifies KPMG Matchi against all such claims, loss or damage.

  1. 12.TERMINATION
  2. 1KPMG Matchi may terminate or suspend this Agreement on notice to the User without cause and at any time in KPMG Matchi’s sole and absolute discretion.
  3. 2The User may terminate this Agreement on 30 (thirty) days’ written notice to KPMG Matchi.
  4. 3If either Party terminates or suspends the Agreement, both Parties will keep any rights that it may have at time of termination.
  5. 4If either party materially breaches any term or condition of the Agreement, the other Party may cancel the Agreement in the manner allowed by the Law.
  6. 5When the Agreement is terminated or cancelled either Party must return any property belonging to the other that is in its respective possession, if the other Party asks for it.
  7. 6The termination of the Agreement will not affect

any provision of the Agreement that needs to have effect after the end of the Agreement, even if this is not expressly stated in the provision.

  1. 13.GOVERNING LAW AND DISPUTES
  2. 1This Agreement will be governed and construed in accordance with the Law.
  3. 2Any dispute arising between the Parties from this Agreement, including its existence, enforceability, validity, interpretation or termination, the Parties endeavour to settle such dispute in the following manner:
    1. 2.1The Parties shall, upon a dispute arising, endeavour to settle such dispute amicably by discussion between a nominated person of each Party. The attempt to bring about an amicable settlement is considered to have failed as soon as one of the Parties hereto gives a notice thereof to the other Party in writing, provided that the Parties have attempted to resolve the dispute for a period of at least 30 (thirty) days.
    2. 2.2If an attempt to resolve a dispute amicably by discussion between the Parties has failed, the dispute shall be referred to and finally resolved by arbitration under the rules of the Arbitration Foundation of Southern Africa (“AFSA”), which rules are deemed to be incorporated by reference into this clause.
    3. 2.3The costs of the arbitrator shall be borne by the unsuccessful Party or as the arbitrator otherwise directs.
    4. 2.4Nothing in this clause 13 shall prevent either Party from having recourse to a court of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional relief as it considers necessary to avoid irreparable damage.
  1. 14.DOMICILIUM
  2. 1The User chooses its domicilium address details as those which have been submitted to the Website or as otherwise notified to KPMG Matchi in writing from time to time.
  3. 2The Domicilium address of KPMG Matchi is as follows:

Physical Address:             85 Empire Road, Parktown, Johannesburg

                Telephone Number:       011 647 7111

                Email:                                   

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