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TERMS OF SERVICE


This policy should be read in conjunction with the Book Me In (Pty) Ltd ("the company") Security Statement and Privacy Policy.

1. Interpretation

 

In this Agreement, clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention:

1.1. an expression which denotes any gender includes the other gender; a person includes a natural and an artificial or juristic person; the singular includes the plural and vice versa;

1.2. the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:

 

 

1.3. any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Commencement Date, and as amended or substituted from time to time;

1.4. if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;

1.5. where any term is defined within a particular clause other than this clause 1, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement; any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be.

 

2. INTRODUCTION

2.1. Booked-In Pro has created and developed the System and are the supplier of and have expertise in providing the Services.

2.2. The Customer requires Booked-In Pro to, and Booked-In Pro is willing to grant the Customer access to the Booked-In Pro Reservation System and SmartApp, and to provide the Services to the Customer in accordance with the terms and conditions set out in this Agreement.

 

3. DURATION

3.1. This Agreement shall commence on the Commencement Date and shall continue in force until terminated by either Party with reasonable notice.

3.2. The Customer may terminate the Agreement on reasonable notice, provided that any outstanding Fees are paid prior to termination.

3.3. Booked-In Pro may terminate the Agreement on reasonable notice and on grounds that Booked-In Pro believe to be reasonable, where after the Customer will have access to their data for a period of three (3) months.

 

4. ACCESS TO THE SYSTEM

4.1. For the duration of this Agreement, Booked-In Pro grants to the Customer a personal, non-transferable and non-exclusive right and license to access and make use of the System.

4.2. It is recorded that the System is proprietary to Booked-In Pro and that, as such, the Customer shall not be entitled to:

4.2.1. reproduce, publish, broadcast, translate, modify, adapt, decompile, disassemble or reverse engineer the System, as the case may be, or any concepts, methods and designs embedded in the System, or any part thereof; or

4.2.2. merge or combine the whole or any part of the System with any other components, elements or software without the prior written consent of Booked-In Pro; or

4.2.3. sell, lend, hire or transfer or make available the Use of any part of the System to any third party.

4.3. The System is to be accessed remotely therefore:

4.3.1. the Customer shall be responsible for accessing the System via the internet or another dedicated connection; and

4.3.2. the Customer shall be responsible for any and all costs associated with accessing the System.

4.4. It is expressly recorded that the Customer is at all times responsible for ensuring that it:

4.4.1. possesses or will possess all software and hardware required to access and/or utilize the System; and

4.4.2. complies with any laws and/or regulations related to its access and/or Use of the System.

4.5. Booked-In Pro will at all times use reasonable endeavors to ensure that the access to the System is continuous. In this regard, however, it is specifically recorded that Booked-In Pro cannot and does not guarantee that access to the System will remain uninterrupted at all times.

4.6. Booked-In Pro shall provide the Customer with reasonable notice of any scheduled maintenance that may interrupt access to the System, and shall, whenever possible, schedule such maintenance at times which are most convenient for the Customer.

 

5. PROVISION OF THE SERVICES

5.1. Booked-In Pro undertakes to provide email customer support to the Customer, between the hours of 9 am and 5 pm on Business Days.

5.1.1. 3rd Party Clients shall be required to direct any enquiries related to bookings to the Customer, who may then contact Booked-In Pro

5.1.2. Booked-In Pro reserves the right to refuse to provide Services to any 3rd Party client or other unrelated party

5.2. Booked-In Pro will at all times use its reasonable endeavors to ensure that the supply of the Services is continuous. In this regard, however, it is specifically recorded that Booked-In Pro cannot and does not guarantee that the supply of the Services will remain uninterrupted at all times.

5.3. In the event of any Services being interrupted during a critical period, Booked-In Pro shall, upon written request by the Customer, use all reasonable endeavors to make alternative facilities available to the Customer.

5.4. Booked-In Pro shall provide the Customer with reasonable notice of any scheduled maintenance that may interrupt the provision of any Services, and shall, whenever possible, schedule such maintenance at times which are most convenient for the Customer.

 

6. CONSIDERATION AND PAYMENT

6.1. The Customer shall pay to Booked-In Pro the processed booking fees, to a maximum of USD10.00 or the equivelant in the Customer's local currency, payable:

6.1.1. monthly; in arrears

6.2. Booking Fees may escalate annually, on 1 January, with one (1) month’s notice to the Customer at either:

6.2.1. the annual inflation rate as determined by the Consumer Price Index for the preceding calendar year; or

6.2.2. 12% (twelve percent)

6.3. Notwithstanding the above, Booked-In Pro reserves the right to escalate Booking Fees at other times and at other percentages upon furnishing the Customer with six (6) months’ notice of such increase

6.4. Booked-In Pro shall, for the duration of this Agreement, furnish the Customer with a written invoice setting out:

6.4.1. the amount of the Booking Fee due by the Customer to Booked-In Pro in terms of clause 6.1.1, which amounts shall be invoiced by Booked-In Pro and payable by the Customer as set out in clause 6.5.2 below; and

6.4.2. any administration fee due by the Customer to Booked-In Pro resulting from manual processing of payments, which amount shall be invoiced by Booked-In Pro and payable by the Customer as set out in clause 6.5.2 below

6.4.3. the net amount due and payable by the Customer to Booked-In Pro in respect of each invoice.

6.5. Unless otherwise clearly stipulated in a Schedule, all amounts stipulated as being payable by the Customer to Booked-In Pro in terms of this Agreement:

6.5.1. are exclusive of VAT; and

6.5.2. shall be payable by the Customer to Booked-In Pro within 7 days of receiving an invoice from Booked-In Pro and the outstanding balance of the Customer’s account equaling or surpassing one hundred (100) rand, failing which the account will be frozen .

6.6. The Customer shall not, under any circumstances, be entitled to withhold payment of any amount due under this Agreement, save for as provided for in clause 6.5.2. In the event that the Customer fails to make due and timeous payment of any amount owing to Booked-In Pro under this Agreement:

6.6.1. Booked-In Pro shall be entitled to suspend access to the System and the provision of the Services, until such time as the Customer shall have paid to Booked-In Pro such fees, it being specifically recorded that in the event that payment of any amount is to be made in advance, Booked-In Pro shall not be obliged to grant access to the System and/or commence with the provision of the Services, until such payment has been made by the Customer in full

6.7. Where the Customer requests that Booked-In Pro undertake ad hoc development work, and such work is for the sole benefit of the Customer, Booked-In Pro reserves the right to charge a reasonable fee, subject to prior consultation with, and agreement by, the Customer

 

7. EXCUSED PERFORMANCE

7.1. Booked-In Pro shall be relieved of the obligation to perform in accordance with the provisions of this Agreement and shall, in addition, not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising, where Booked-In Pro’s failure, delay or inability to perform its obligations in terms of this Agreement is due to:

7.1.1. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement;

7.1.2. the Customer’s failure to confirm the accuracy and integrity of any data or information processed for and on behalf of it by Booked-In Pro;

7.1.3. circumstances beyond Booked-In Pro’s reasonable control or events that constitute an event of force majeure in terms of clause 23;

7.1.4. all telecommunications infrastructure and communication line faults;

7.1.5. power failure or power interruptions;

7.1.6. failure or unreasonable delay by the Customer to report faults, problems or defects in the quality of the System to Booked-In Pro;

7.1.7. the Customer making changes to its information technology system or environment or any portion thereof;

7.1.8. the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) of any third party on whom the Customer relies (whether directly or indirectly) to access and utilize the System and/or the Service, and/or on which Booked-In Pro relies to provide access to the System or to provide the Services;

7.1.9. loss or damage caused directly or indirectly by the negligent and/or incorrect Use of the System by the Customer; and/or

7.1.10. the suspension of the Services for maintenance, repair and improvements; provided that, where possible, Booked-In Pro shall provide the Customer with reasonable notice of any such suspension.

 

8. OBLIGATIONS OF THE CUSTOMER

8.1. The Customer shall, for the duration of this Agreement:

8.1.1. be solely responsible for confirming the accuracy and integrity of any data or information processed for and on behalf of it by Booked-In Pro;

8.1.2. be solely responsible for the protection of its Proprietary Information;

8.1.3. not commit or attempt to commit any act or omission which directly or indirectly:

8.1.3.1. impedes, impairs or precludes Booked-In Pro from being able to grant access to the System and/or provide the Services in a reasonable and business-like manner;

8.1.3.2. constitutes an abuse

8.1.3.3. or malicious misuse of the System and/or the Services; or

8.1.3.4. is calculated to have either of the abovementioned effects,

and in the event of the Customer committing any act or omission listed in 8.1.3, should Booked-In Pro incur expenses to remedy the situation, Booked-In Pro reserves the right to charge the Customer the amount necessary to cover Booked-In Pro’s additional expenditure or to take any other appropriate action it may deem necessary to remedy the situation;

8.1.4. not sell, resell or otherwise deal with the System in any manner whatsoever and, without limitation to the afore going, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to Booked-In Pro;

8.1.5. not allow any person other than its employees or other authorized parties access to the System and/or the Services;

8.1.6. not withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Booked-In Pro, its servants, its agents or any other persons for whom it may be liable in law if Booked-In Pro interrupts access to the System or refrains from providing the Services to Customer in the event that the Customer is in default of any of its obligations under this Agreement to Booked-In Pro;

8.1.7. not at any time use the System and/or the Services in contravention of any South African law and, in this regard, the Customer acknowledges that Booked-In Pro has no obligation to assist the Customer in obtaining knowledge and/or clarity in terms of the applicable South African law; and

8.1.8. not make any warranty or representation in respect of the System and/or the Services other than those authorized in writing by Booked-In Pro.

 

9. WARRANTIES

The Customer warrants and represents that:

9.1. the supply of the System and/or the rendering of the Services by Booked-In Pro in terms of this Agreement shall not give rise to:

9.1.1. a breach of any licensing arrangement or agreement concerning the Customer’s computer systems, including, without limitation, the Customer’s software;

9.1.2. or an infringement of any copyright or similar right held by any licensor/s of any of the Customer’s computer systems and, in particular, the Customer’s software.

9.2. If, in Booked-In Pro’s opinion, the supply of the System and/or the rendering of any of the Services will constitute a breach of any license or the infringement of any copyright or similar right held by any person in respect of any of the Customer’s computer systems and/or the Customer’s computer software, Booked-In Pro shall not be obliged to supply the System and/or provide any such Services.

Booked-In Pro warrants and represents that:

9.3. it has full capacity and authority and all the necessary licenses, permits and consents to enter into and perform in terms of this Agreement and to provide access to the System and/or to provide the Services to the Customer;

9.4. it is the owner of or has the right to use under license the Intellectual Property Rights employed by it during or as part of providing access to the System or supplying the Services;

9.5. it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;

9.6. access to the System shall be granted and the Services shall be provided in accordance with the provisions of this Agreement and in compliance with South African law; and
9.7. the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with industry standards.

9.8. Save as expressly set out in clause 9.3 above, Booked-In Pro does not make any representations nor give any warranties or guarantees of any nature whatsoever in respect of the System and/or the Services and all warranties which are implied or residual at common law are hereby expressly excluded.

 

10. LIMITATION OF LIABILITY

10.1. Booked-In Pro shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where such loss is due to the occurrence of any of the following events:

10.1.1. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement; or

10.1.2. circumstances that constitute an event of force majeure as contemplated in clause 23 below; or

10.1.3. all telecommunications infrastructure and communication line faults; or

10.1.4. failure or unreasonable delay by the Customer to report faults/problems to Booked-In Pro; or

10.1.5. the failure by the Customer to adequately confirm the accuracy and integrity of any data or information processed for and on behalf of it by Booked-In Pro; or

10.1.6. the failure by the Customer to adequately protect its Proprietary Information; or

10.1.7. the failure of any hardware, software program, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to access the System and/or use the Services and/or on which Booked-In Pro relies to grant access to the System and/or provide the Services.

10.2. In no event shall Booked-In Pro be liable for any incidental, consequential, or any other indirect loss or damage (including but not limited to loss of profits or revenues and loss of data), nor for exemplary or punitive damages. These limitations of liability shall apply regardless of the form of action, whether in contract, delict or otherwise and regardless of whether the Customer has been advised as to the possibility of such damages and/or losses occurring.

 

11. INTELLECTUAL PROPERTY RIGHTS

11.1. All Intellectual Property Rights vested in any of the Booked-In Pro documentation or in any software and/or any other documentation and works (whether stored in printed or electronic form) furnished by Booked-In Pro to the Customer, and/or developed by or created by Booked-In Pro or any of its employees, agents, or sub-contractors in the course of or for the purpose of granting access to the System and/or providing the Services to the Customer (whether or not created by Booked-In Pro in connection with this Agreement), shall be the property of and vest solely and absolutely in Booked-In Pro on the date upon which same is created.

11.2. The Customer shall only be entitled to utilize the Intellectual Property Rights referred to in 11.1 above, or any portion thereof, for the purposes of the accessing and utilizing the System and/or the Services in terms of this Agreement, and shall not publish, circulate or copy same for use by any third party whomsoever.

11.3. To the extent necessary, the Customer hereby cedes, assigns, transfers and makes over to Booked-In Pro any Intellectual Property Rights in respect of any of the software, documents and/or works referred to in 11.1.

 

12. TRADEMARKS

12.1. The Customer shall not acquire any right, title or interest entitling it to use the name, service marks, trademarks or logos of Booked-In Pro. In this regard, the Customer undertakes in favor of Booked-In Pro not to perform any act which would injure the reputation or goodwill attaching to Booked-In Pro’s name and trademarks, or which would prejudice Booked-In Pro’s rights in and to such names and trademarks.

12.2 The Customer may, with written permission from Booked-In Pro, utilize the Booked-In Pro logo in its marketing material, print media and social media advertising.

 

13. SECURITY AND PROTECTION OF PROPRIETARY INFORMATION

Booked-In Pro’s Proprietary Information

13.1. The Customer will keep in confidence and protect any Proprietary Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement.

13.2. The Customer acknowledges that the unauthorized disclosure or use of Proprietary Information may cause substantial economic loss to Booked-In Pro. All printed materials, containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for the Customer’s authorized use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.

13.3. The Customer shall ensure that its employees comply with its obligations under this clause 13. This clause 13 shall survive termination or cancellation of this Agreement. Unless specifically otherwise agreed to, this Agreement does not transfer to the Customer any rights contained in any Proprietary Information of Booked-In Pro. Notwithstanding the provisions of clauses 13.1 to 13.3 above, the Parties agree to observe any additional security measures that may be required from time to time, such measures shall be agreed upon in writing between the parties..

The Customer’s Proprietary Information

13.4. The Customer acknowledges and agrees that it shall at all times be solely responsible for the protection of its own Proprietary Information.

 

14. NON-SOLICITATION

14.1. The Customer shall not at any time, during this Agreement, nor for a period of one (1) year after termination of this Agreement, for any reason whatsoever, either for itself or as the agent of anyone else, persuade, induce, solicit, encourage or procure any employee, agent, sub-contractor or authorised representative of Booked-In Pro to:

14.1.1. become employed by or interested in any manner whatever in any business, firm, undertaking or company, directly or indirectly in competition with the business carried on by Booked-In Pro; or

14.1.2. terminate his employment with Booked-In Pro.

 

15. DISPUTE RESOLUTION

15.1. In the event of any dispute relating to or arising out of this Agreement, including regarding the scope, effect, validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, such dispute shall be finally resolved on the terms as provided for below:

15.1.1. a senior nominee of each of the Parties shall meet, or otherwise attempt to settle such dispute or difference within a period of 10 (ten) Business Days of the raising of the dispute, unless expressly agreed otherwise by both parties.

15.1.2. in the event that the respective Parties’ senior nominees fail to resolve the dispute or difference within such period as stated in clause 15.1.1, such dispute or difference shall be finally resolved by arbitration in accordance with the Arbitration Act 42 of 1965;

15.1.3. Each Party to this Agreement expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency;

15.1.4. the arbitration shall be held in Johannesburg and the proceedings conducted in English; and

15.1.5. the Parties shall agree on the appointment of a single arbitrator. If such appointment is not agreed to within 7 (seven) days after receipt of the written notice, either party may request that the President of the Gauteng Law Society, or any successor to such society, make the necessary appointment.

15.2. Notwithstanding anything to the contrary anywhere else in this Agreement, nothing in this clause shall preclude any party from seeking interim relief on an urgent basis in any court having jurisdiction.

15.3. The Parties undertake to keep the arbitration, including the subject matter of the arbitration and the evidence heard during the arbitration, confidential.

15.4. The Parties agree that the written demand by a party to the dispute that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act 68 of 1969

 

16. BREACH

16.1. Should either Party (“Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (“Aggrieved Party”) shall be obliged to give the Defaulting Party 14 (fourteen) days’ written notice, or such longer period as may be reasonable in the circumstances, to remedy the breach. If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled, without prejudice to its other rights in law, to cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.

 

17. TERMINATION

17.1. Notwithstanding any other provision of this Agreement, on termination of this Agreement for any reason whatsoever, and in any event, on demand by Booked-In Pro:

17.1.1. any amounts due to Booked-In Pro shall immediately become payable to Booked-In Pro and the Customer shall forthwith make payment of same to Booked-In Pro by not later than seven (7) days from the date of termination of this Agreement.

 

18. FORCE MAJEURE

18.1. Should a Party (“Affected Party”) be prevented from fulfilling any of its obligations in terms of this Agreement as a result of an event of force majeure, then:

18.1.1. those obligations shall be deemed to have been suspended to the extent that and for so long as the Affected Party is so prevented from fulfilling them and the corresponding obligations of The other Party (“Unaffected Party”) shall be suspended to the corresponding extent;

18.1.2. the Affected Party shall promptly notify the Unaffected Party in writing of such event of force majeure and such notice shall include an estimation of the approximate period for which the suspension in terms of clause 18.1.1 will endure. Such estimate shall not be binding on the Affected Party ; and

18.1.3. the duration of this Agreement as well as each period within which and each date by which any obligation is required to be performed in terms of this Agreement shall be extended or postponed, as the case may be, by the period of suspension in terms of clause 18.1.1.

18.2. Should the Affected Party partially or completely cease to be prevented from fulfilling its obligations by the event of force majeure, the Affected Party shall immediately give written notice to the Unaffected Party of such cessation and the Affected Party shall, as soon as possible, fulfill its obligations which were previously suspended; provided that in the event and to the extent that fulfillment is no longer possible or the other Party has given written notice that it no longer requires such fulfillment, the Affected Party shall not be obliged to fulfill its suspended obligations and the Unaffected Party shall not be obliged to fulfill its corresponding obligations.

18.3. Should an event of force majeure continue for more than 180 (one hundred and eighty) days after the date of the notice referred to in clause 18.1.2 and notice of cessation in terms of clause 18.2 not have been given, then the Unaffected Party shall be entitled (but not obliged) to terminate this Agreement by giving not less than 30 (thirty) days’ written notice to the Affected Party to that effect, provided that any such notice of termination shall be deemed not to have been given if a notice of cessation in terms of clause 18.2 is received by the Unaffected Party prior to the expiry of such 30 (thirty) day period.

18.4. An “event of force majeure” shall mean any event or circumstance whatsoever which is not within the reasonable control of the Affected Party, including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities

 

19. CESSION AND ASSIGNMENT

The Customer shall not be entitled to cede, assign or transfer all or any of its rights and/or obligations in terms of this Agreement, without the prior written consent of Booked-In Pro, which consent will not be unreasonably withheld.

 

20. SEVERABILITY

If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidation any of the remaining provisions of this Agreement which shall continue to be of full force and effect.

 

21. GENERAL

21.1. This Agreement will be governed and construed in accordance with the laws of South Africa. The provisions of the following Acts, as well as any other applicable legislation not specifically mentioned, are applicable to this Agreement and this Agreement is to be read as though the provisions of same are specifically incorporated herein

21.1.1. The Consumer Protection Act;

21.1.2. The Electronic Communications and Transactions Act;

21.1.3. The Promotion of Access to Information Act; and

21.1.4. The Protection of Personal Information Act;

21.2. This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof.

21.3. Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their representatives.

21.4. No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.

21.5. No indulgence which either Party may grant to the other shall constitute a waiver of any of the rights of the grantor, unless reduced to writing and signed by both Parties.

21.6. The Customer hereby warrants that it has the capacity to and is authorized to conclude this Agreement, and that upon acceptance this Agreement will, and will continue to, bind it in all respects.

21.7. Additional requirements in terms of the Electronic Communications and Transactions Act (“ECTA”)

21.7.1. The following information is provided in terms of section 43(1) of ECTA:

21.7.1.1. Full name and legal status of website owner: Book Me In (Pty) Ltd t/a Booked-In Pro

21.7.1.2. Physical Domicilium

Cypress South, B

Woodmead Business Park,

142 Western Services Rd,

Woodmead, 2191

Republic of South Africa

 

21.7.1.3. Postal address: as above in 21.6.1.2

21.7.1.4. Physical address for the receipt of legal notices: as above in 21.7.1.2

21.7.1.5. Official email address of the Website: info@bookedinpro.com

21.7.2. The seven (7) day cooling off period required by section 44 of ECTA is provided for and included in the Agreement.