Terms of Service
TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions (“Terms”) govern the supply of software, subscriptions, licences, hardware and services by Kiteview Technologies (Pty) Ltd (“Kiteview”) to its customers (“the Client”).
These Terms apply to all Orders, Proposals, Quotations, Statements of Work, Service Level Agreements, Change Requests, Work Requests and other engagements accepted by the Client, unless expressly varied in writing.
- DEFINITIONS
For purposes of these Terms:
“Client” means the person, company or other legal entity purchasing or receiving Products or Services from Kiteview.
“Order” means any accepted proposal, quotation, sales order, statement of work, service level agreement, change request, work request or other written instruction under which Kiteview supplies Products or Services.
“Services” means any consulting, implementation, project management, support, managed services, training, development, integration, reporting, business intelligence, configuration, data migration or other professional services supplied by Kiteview.
“Sage Products” means any software, cloud service, subscription, licence, module, application, platform or related service supplied, licensed or made available by Sage, including but not limited to Sage 200 Evolution and Sage Intacct.
“Third-Party Products” means any software, service, cloud platform, hosting service, integration, application, hardware or other product supplied by a party other than Kiteview, including Sage Products and products or services supplied by Independent Software Vendors (“ISVs”).
“Kiteview Solutions” means any software, application, utility, integration, connector, report, dashboard, template, methodology, framework or other intellectual property developed or owned by Kiteview.
“Client Data” means data, records, documents and information belonging to or supplied by the Client.
“Business Day” means any day other than a Saturday, Sunday or South African public holiday.
SERVICES
- ORDERS AND ACCEPTANCE
2.1 Acceptance by the Client of an Order constitutes a binding agreement between Kiteview and the Client incorporating these Terms.
2.2 Acceptance may occur by signature, electronic acceptance, email approval, issue of a purchase order, payment of a deposit or commencement of Services at the Client’s request.
2.3 Unless otherwise stated, all prices exclude VAT and any applicable taxes, duties, travel or third-party charges.
2.4 Kiteview shall be entitled to rely upon instructions and approvals received from the Client’s directors, employees, users, project team members or representatives who reasonably appear authorised to request the relevant Products or Services.
2.5 The Client is responsible for notifying Kiteview in writing of any restrictions upon the authority of its personnel to request Services or incur charges.
- SCOPE OF SERVICES
3.1 Kiteview’s obligations are limited to the Products, Services, entities, users, modules, locations, integrations, deliverables and functionality expressly included in the applicable Order.
3.2 Any item not expressly included in the agreed scope shall be considered excluded unless subsequently agreed in writing.
3.3 Requirements identified after acceptance, including during discovery, blueprinting, implementation, testing or Go-Live preparation, may constitute additional scope and may require additional software, subscriptions, development, consulting or other fees.
3.4 Blueprinting and discovery are intended to validate and further define the Client’s requirements. The identification during blueprinting or discovery of requirements not contemplated in the original Order does not automatically incorporate those requirements into the original scope or price.
3.5 Kiteview will advise the Client where a material scope change is identified and may require approval of an amended Order or Change Request before proceeding.
- ESTIMATES, BUDGETS AND FIXED-PRICE WORK
4.1 Unless expressly identified in writing as a Fixed Price, all consulting hours, implementation hours, development hours, project budgets and estimated completion dates are estimates based on information reasonably available at the time.
4.2 Estimates do not constitute a guarantee that the work will be completed within the estimated hours or cost.
4.3 Actual time reasonably incurred shall be billable at the applicable agreed rates, subject to any expressly agreed cap or Fixed Price.
4.4 Where work is performed on a Fixed Price basis, the scope shall be limited to the deliverables expressly identified in the applicable Order.
4.5 Work arising from changes in requirements, incorrect or incomplete information, additional entities, users, modules, locations, integrations, business processes or other requirements outside the agreed Fixed Price scope shall be separately chargeable.
4.6 Unless otherwise specified in the Order, Fixed Price work shall be invoiced 50% on award, 30% on delivery and 20% on acceptance or 30 days after delivery, whichever occurs first.
- SUPPORT SERVICES
5.1 Support requests may be logged using Kiteview’s designated telephone, email or support channels.
Telephone: +27 10 005 6678
Email: support@kiteview.co.za
5.2 Support should be requested by appropriately trained users. Kiteview may require users to complete relevant product training where insufficient training materially contributes to support requirements.
5.3 Unless otherwise agreed under a Managed Services or Service Level Agreement, support and consulting shall be billed at Kiteview’s applicable rates.
5.4 Where the Client is entitled to any included monthly support allowance, unused support shall not accumulate or carry forward unless expressly stated in the applicable agreement.
5.5 Kiteview records support and consulting Services through its time and project management systems.
5.6 Kiteview’s time records shall constitute reasonable evidence of Services performed unless disputed by the Client with supporting information within the invoice dispute period specified in these Terms.
5.7 The absence of a signed job card shall not invalidate Services delivered remotely, telephonically, by email, online or otherwise where Kiteview’s records reasonably identify the Services performed and the person requesting or receiving them.
- SERVICE HOURS
6.1 Unless otherwise agreed, Kiteview’s normal service hours are 08:00 to 16:30 Monday to Friday, excluding South African public holidays.
6.2 A reduced on-call service may operate during Kiteview’s annual December/January shutdown period.
6.3 Services requested outside normal working hours are subject to resource availability and may be charged at up to 200% of the normal applicable rate unless otherwise agreed.
- BOOKED CONSULTING AND CANCELLATIONS
7.1 Consulting, implementation, training, development, project and on-site Services are scheduled against allocated Kiteview resources and reserved for the Client once confirmed.
7.2 Where the Client needs to cancel or reschedule booked Services, reasonable notice must be provided to Kiteview.
7.3 Services cancelled or rescheduled with less than 24 business hours’ notice may be charged at 50% of the booked time.
7.4 Services cancelled on the day of the appointment, after the consultant has commenced travel, after work has commenced, or where the Client or required personnel are unavailable for a confirmed appointment, may be charged at 100% of the booked time, together with any travel or other costs already incurred.
7.5 Kiteview may waive cancellation charges where circumstances reasonably justify doing so.
7.6 Where a consultant is prevented from performing the scheduled Services because required access, information, systems, infrastructure or Client personnel are unavailable, the time reserved or reasonably incurred may remain billable.
- CLIENT RESPONSIBILITIES
8.1 Successful delivery of Services depends upon the Client’s timely cooperation and participation.
8.2 The Client is responsible for:
a. providing complete and accurate information and requirements;
b. providing timely access to systems, infrastructure, data and personnel;
c. making appropriately skilled personnel available;
d. providing decisions, approvals and sign-offs within reasonable timeframes;
e. ensuring relevant employees and users attend and complete recommended training;
f. adequately testing system functionality and business processes;
g. validating migrated or imported data;
h. validating opening balances, reports, calculations and outputs;
i. testing integrations and interfaces;
j. maintaining appropriate internal controls and user permissions;
k. protecting usernames, passwords and access credentials;
l. ensuring that its infrastructure and systems meet applicable technical requirements; and
m. advising Kiteview of changes made to relevant systems by the Client or any third party.
8.3 Additional work arising from incomplete or inaccurate information, inadequate testing, failure to follow recommendations, insufficient training, staff turnover, changes in personnel, delayed approvals or other Client-related circumstances may be chargeable.
8.4 Kiteview shall not be responsible for delays resulting from the Client’s failure to meet its responsibilities.
- CLIENT DELAYS AND PROJECT INACTIVITY
9.1 Where a project is delayed by the Client, Kiteview may revise the project schedule and resource allocation.
9.2 Kiteview cannot guarantee immediate availability of the same consultants or resources following a Client-caused delay.
9.3 Where a project remains substantially inactive for more than 30 days due to Client circumstances, Kiteview may reschedule the project according to its then-current resource availability.
9.4 Where inactivity exceeds 60 days, Kiteview may reasonably charge for project re-planning, re-familiarisation, re-onboarding or other work required to recommence the project.
SOFTWARE AND THIRD-PARTY PRODUCTS
- SAGE AND THIRD-PARTY PRODUCTS
10.1 Kiteview acts as an authorised reseller, implementation and/or support partner in respect of certain third-party products but is not the developer, owner or operator of those products.
10.2 Use of Sage Products and other Third-Party Products may be subject to the applicable vendor’s licence, subscription, service, privacy, data processing and other terms.
10.3 By ordering or using such Products, the Client agrees to comply with the applicable vendor terms.
10.4 Vendor terms may change from time to time. Kiteview does not control those terms and cannot vary them on behalf of the relevant vendor.
10.5 Kiteview makes no independent warranty concerning functionality, availability, performance or continued availability of a Third-Party Product beyond any warranty expressly provided by the relevant vendor.
10.6 Sage Terms and Conditions
The Client acknowledges that the purchase, subscription, licensing and use of Sage Products is additionally subject to the applicable Sage terms and conditions, licence agreements, subscription terms, service level agreements, acceptable use policies and other product-specific terms published or made available by Sage from time to time.
The applicable Sage terms and conditions are available from Sage’s official legal and product terms pages, including:
https://www.sage.com/en-za/legal/terms-and-conditions/product-and-service-terms-and-conditions/
The Client is responsible for reviewing and complying with the applicable Sage terms relating to the Sage Products purchased or used by the Client.
Sage’s terms govern the Client’s use of the applicable Sage Products and Sage-provided services. Kiteview’s Terms govern the Products and Services supplied by Kiteview. Nothing in these Terms shall be interpreted as creating any warranty, service level, obligation or liability on the part of Kiteview which is properly an obligation of Sage under the applicable Sage terms.
Where Sage amends its applicable terms, licensing conditions, subscription conditions, product functionality, service levels or policies from time to time, the then-current Sage terms shall apply to the extent provided for under the Client’s agreement with Sage.
- SOFTWARE LICENCES, SUBSCRIPTIONS AND RENEWALS
11.1 Sage Products and Third-Party Products may be supplied under perpetual, term-based, subscription, named-user, consumption-based or other licensing models depending upon the relevant Product and Order.
11.2 Payment for software, licences and subscriptions may be required in advance of activation or delivery.
11.3 Subscription periods, renewal dates, cancellation requirements and usage entitlements are governed by the applicable vendor agreement and Order.
11.4 Cancellation of the Client’s relationship with Kiteview does not automatically cancel any Sage or Third-Party Product subscription or contractual commitment.
11.5 The Client remains responsible for non-cancellable subscriptions, licences, vendor commitments and charges incurred or committed on its behalf.
11.6 Kiteview does not control vendor pricing or licensing policies.
11.7 Vendor-imposed price increases, currency adjustments, licensing changes, taxes, usage charges, API charges, overages or other vendor charges may be passed through to the Client.
11.8 Where notice is required to prevent renewal, the Client is responsible for providing Kiteview with sufficient written notice to allow Kiteview to comply with the applicable vendor’s cancellation or non-renewal deadline.
- THIRD-PARTY PRODUCTS, ISVs AND INTEGRATIONS
12.1 Where Kiteview facilitates, resells, invoices, integrates or assists with Products or Services supplied by Sage, an ISV or another third party, the obligations of that provider remain separate from Kiteview’s obligations.
12.2 A dispute concerning a Third-Party Product or provider shall not entitle the Client to withhold payment for undisputed Services properly supplied by Kiteview.
12.3 Similarly, a dispute concerning Kiteview Services shall not automatically relieve the Client of payment obligations for Third-Party Products already ordered, supplied, activated or committed on the Client’s behalf.
12.4 Kiteview will reasonably assist with vendor escalation where appropriate.
12.5 Unless otherwise agreed, time incurred by Kiteview investigating, reproducing, documenting, escalating, project managing or working around a third-party issue shall remain chargeable.
12.6 Kiteview does not guarantee the continuing compatibility or interoperability of Third-Party Products, APIs, integrations or external systems.
BILLING AND PAYMENT
- FEES, INVOICING, CREDITS AND SET-OFF
13.1 Services shall be invoiced at Kiteview’s standard rates or the rates specified in the applicable Order.
13.2 Ad-hoc Services may be invoiced as performed. Project Services may be invoiced monthly, against milestones or as otherwise specified in the applicable Order.
13.3 Unless otherwise agreed in writing, invoices are payable on presentation.
13.4 Any credit balance, credit note, deposit, prepayment or other amount held by or due from Kiteview for the benefit of the Client may, to the extent permitted by law, be allocated or set off by Kiteview against amounts due and payable by the Client to Kiteview.
13.5 Where a Client has a credit balance and subsequently requests, instructs or authorises Kiteview to perform chargeable Services, Kiteview may apply the available credit towards such Services as they are invoiced unless otherwise agreed in writing.
13.6 Credits may be applied against software, subscriptions, licences, consulting, support, development, managed services, travel or other amounts properly chargeable to the Client.
13.7 Where multiple invoices are outstanding, Kiteview may allocate payments or credits against the oldest outstanding amounts first unless otherwise agreed in writing.
13.8 The existence of a credit balance does not prevent Kiteview from invoicing Services performed and allocating the resulting invoice against that credit.
- INVOICE DISPUTES
14.1 Any query or dispute relating to an invoice must be submitted to Kiteview in writing within 7 days of receipt of the invoice and must identify the specific amount and reasonable basis of the dispute.
14.2 The undisputed portion of an invoice remains payable by the applicable due date.
14.3 Kiteview will review bona fide invoice disputes and make any appropriate adjustment.
14.4 Failure to dispute an invoice within the above period shall constitute prima facie acceptance of the Services and charges reflected on the invoice, subject always to applicable law.
- TRAVEL AND EXPENSES
15.1 Travel to Client premises or other locations may be charged at Kiteview’s applicable kilometre rate from Kiteview’s office to the relevant location and return.
15.2 Flights, accommodation, vehicle hire, tolls and other reasonable travel expenses required to provide Services shall be for the Client’s account unless otherwise agreed.
15.3 For locations more than 75 kilometres from Kiteview’s office, Kiteview reserves the right to charge reasonable travel time in addition to travel expenses.
- OVERDUE ACCOUNTS AND SUSPENSION
16.1 Kiteview may suspend consulting, support, development, implementation, project work or other Services where:
a. invoices are overdue;
b. an agreed payment arrangement has not been honoured;
c. required Client dependencies have not been provided;
d. continued work presents an unreasonable technical, security or commercial risk; or
e. the Client is otherwise in material breach of its obligations.
16.2 Where reasonably practicable, Kiteview will notify the Client before suspending Services.
16.3 Kiteview shall not be liable for project delays, missed deadlines, resource availability, additional costs or other consequences arising from a suspension permitted under these Terms.
16.4 Resumption of Services following suspension shall be subject to resource availability.
IMPLEMENTATION, DATA MIGRATION, TESTING AND GO-LIVE
- DATA MIGRATION, CONVERSION AND RECONCILIATION
17.1 Where Kiteview performs or assists with data migration, conversion, importing, extraction, transformation or opening balance preparation, such Services are dependent upon the quality, completeness, structure and accuracy of the source data supplied or made available by the Client.
17.2 Kiteview shall use reasonable care in performing agreed data migration and conversion Services but does not warrant that inaccurate, incomplete, duplicated, corrupted or incorrectly structured source data will automatically be identified or corrected.
17.3 Unless expressly included in the agreed scope, data cleansing, restructuring, correction, de-duplication and historical data remediation constitute additional Services and may be separately chargeable.
17.4 The Client remains responsible for reviewing, validating and reconciling migrated data before Go-Live, including where applicable:
a. customer and supplier balances;
b. general ledger balances;
c. inventory quantities and values;
d. bank and cash balances;
e. outstanding transactions;
f. opening balances;
g. master data;
h. tax information;
i. financial reports; and
j. other material business information.
17.5 The Client must notify Kiteview of material discrepancies identified during validation within a reasonable period and prior to approving Go-Live wherever reasonably possible.
17.6 Approval to Go-Live following a data migration constitutes confirmation that the Client has performed the validation and reconciliation it considers reasonably necessary and accepts the migrated data as materially suitable for operational use, subject to documented outstanding items.
17.7 Kiteview shall not be responsible for discrepancies resulting from inaccurate or incomplete source data, Client adjustments, transactions processed after extraction, third-party changes, differences between legacy and replacement system functionality or accounting treatment, or matters outside Kiteview’s agreed scope.
17.8 Any post-Go-Live investigation or correction relating to matters described in clause 17.7 may be chargeable.
- TESTING AND CLIENT ACCEPTANCE
18.1 The Client is responsible for adequately testing its business processes, data, functionality, integrations, reports and outputs before approving an implementation, upgrade or material system change for live operation.
18.2 Where a test, sandbox or non-production environment is provided, the Client shall use reasonable efforts to conduct representative testing before approving progression to the live environment.
18.3 Client approval to proceed to Go-Live constitutes confirmation that the Client has completed the testing it considers reasonably necessary and is satisfied that the system is materially ready for operational use, subject to any documented outstanding items agreed between the parties.
18.4 Deliverables shall be deemed accepted 30 days after delivery unless the Client has provided Kiteview with written details of material defects or shortfalls within that period.
18.5 Minor defects or outstanding items which do not materially prevent operational use shall not automatically prevent acceptance or Go-Live.
- GO-LIVE
19.1 Kiteview may require all invoices due and all completed consulting charges up to the agreed Go-Live date to be settled before Go-Live Services commence.
19.2 Kiteview shall not be required to commence or continue Go-Live activities while amounts properly due are outstanding.
19.3 Where the applicable Order provides for a deposit or retained amount for post-Go-Live support, that amount shall be applied in accordance with the Order.
19.4 Go-Live does not constitute a guarantee that software will operate without defects or that additional support, configuration or optimisation will not subsequently be required.
DATA, DEVELOPMENT AND INTELLECTUAL PROPERTY
- CLIENT DATA, BACKUPS AND SECURITY
20.1 Client Data remains the property of the Client, subject to any applicable rights granted to Sage or another vendor under its own terms.
20.2 The Client is responsible for the accuracy, completeness and integrity of data supplied to Kiteview.
20.3 Where the Client controls its own server, database, hosting or infrastructure environment, the Client remains responsible for appropriate backups, security, disaster recovery and infrastructure unless Kiteview has expressly contracted to provide those Services.
20.4 For cloud-hosted Third-Party Products, hosting, backup, retention, security, availability and disaster recovery are governed by the applicable provider’s terms and policies.
20.5 The Client shall maintain appropriate access controls and shall protect administrative and user credentials.
20.6 Kiteview shall take reasonable measures to protect Client Data in its possession and shall process personal information in accordance with applicable data protection legislation.
- CUSTOM DEVELOPMENT, DEFECTS AND ENHANCEMENTS
21.1 Where Kiteview develops bespoke software, integrations, utilities, reports, dashboards, workflows, connectors or other customised functionality, the agreed specification, proposal, development scope or approved Change Request shall determine the functionality to be delivered.
21.2 Unless a different warranty period is expressly agreed in writing, the Client shall have 30 days from delivery or release of the relevant development into the agreed testing or production environment to report a reproducible material defect.
21.3 A “Defect” for purposes of this clause means a reproducible failure of the delivered development to operate materially in accordance with the expressly agreed specification.
21.4 Where a valid Defect is reported within the 30-day period and is directly attributable to Kiteview’s development, Kiteview shall use reasonable efforts to correct that Defect without additional professional service charges.
21.5 The following shall not constitute Defects and shall be separately chargeable where Kiteview is requested to perform work relating to them:
a. new functionality or enhancements;
b. changed or additional business requirements;
c. functionality not expressly included in the agreed specification;
d. changes requested after approval of the original scope;
e. changes to Sage or another Third-Party Product;
f. API or integration changes introduced by a third party;
g. operating system, database, infrastructure or security changes;
h. changes made by the Client or another developer or service provider;
i. incorrect or incomplete data;
j. user error or inadequate training;
k. issues resulting from use outside the agreed operating environment; or
l. circumstances outside Kiteview’s reasonable control.
21.6 Where investigation is required to determine whether an issue constitutes a Defect, Kiteview may record the investigation time. Where the issue is confirmed to be a Kiteview Defect covered by clause 21.4, reasonable investigation and correction time shall not be charged. Where the issue is not a covered Defect, the investigation and any resulting Services may be charged at the applicable rates.
21.7 Correction of a Defect does not extend or restart the original warranty period except in relation to the specific corrected component for a reasonable verification period.
21.8 Following expiry of the applicable warranty period, support, maintenance, modifications and corrections shall be chargeable unless covered by a separate maintenance or support agreement.
- INTELLECTUAL PROPERTY
22.1 Client Data remains the property of the Client.
22.2 Intellectual property in Sage Products and Third-Party Products remains the property of the relevant vendor or licensor.
22.3 Kiteview retains ownership of all pre-existing intellectual property and all reusable methodologies, frameworks, libraries, connectors, utilities, source code, templates, reports, dashboards, techniques, know-how and other Kiteview Solutions developed or used by Kiteview.
22.4 Unless expressly agreed otherwise in writing, bespoke development for a Client does not transfer ownership of Kiteview’s underlying intellectual property, development frameworks, source code, methodologies or reusable components.
22.5 Upon full payment of all applicable fees, the Client shall receive a non-exclusive, non-transferable licence to use bespoke deliverables supplied by Kiteview for the Client’s internal business purposes, subject to the applicable Order.
22.6 Kiteview may reuse general knowledge, concepts, methodologies, code libraries, techniques and non-Client-specific components developed or enhanced during an engagement, provided that Kiteview does not disclose the Client’s Confidential Information.
22.7 No source code is required to be delivered to the Client unless expressly agreed in writing.
- THIRD-PARTY ACCESS AND SYSTEM CHANGES
23.1 Kiteview shall not be responsible for any error, defect, data issue, configuration change, integration failure or other consequence arising from changes made by the Client or any third party to relevant systems, databases, software, integrations or infrastructure.
23.2 Where another business partner, consultant, developer, IT provider or third party has access to an environment in which Kiteview is providing Services, the Client shall disclose such involvement where it may reasonably affect Kiteview’s work.
23.3 Kiteview may require details of third-party access and changes before continuing its Services.
23.4 Kiteview reserves the right to suspend work where concurrent third-party access or changes create an unreasonable risk to system integrity, data integrity, security or Kiteview’s ability to reasonably determine the cause of an issue.
23.5 Time incurred investigating, identifying or correcting issues arising from third-party access or changes shall be chargeable unless otherwise agreed in writing.
CONFIDENTIALITY AND DATA PROTECTION
- CONFIDENTIAL INFORMATION
24.1 Each party shall maintain the confidentiality of Confidential Information received from the other and shall not use or disclose it except:
- as necessary to fulfil its obligations;
b. to employees, contractors, professional advisers, vendors or subcontractors who reasonably require access and are subject to appropriate confidentiality obligations;
c. with the other party’s consent; or
d. where disclosure is required by law.
24.2 These confidentiality obligations shall survive termination of the parties’ relationship.
24.3 Kiteview may identify the Client as a customer in a general business context. Client-specific case studies, testimonials or use of the Client’s branding for promotional purposes shall require appropriate Client approval.
- PROTECTION OF PERSONAL INFORMATION
25.1 Each party shall comply with applicable South African data protection legislation, including the Protection of Personal Information Act, 2013 (“POPIA”).
25.2 Where Kiteview processes personal information on behalf of the Client, Kiteview shall process such information only as reasonably necessary to provide the agreed Services or otherwise as lawfully instructed.
25.3 The Client warrants that it has the necessary authority and lawful basis to provide personal information to Kiteview for processing in connection with the Services.
25.4 Kiteview may use appropriate employees, contractors, hosting providers, software vendors and other service providers where reasonably required to perform the Services, subject to applicable legal requirements.
WARRANTIES, THIRD-PARTY SOFTWARE AND LIABILITY
- THIRD-PARTY SOFTWARE, UPGRADES AND FITNESS FOR PURPOSE
26.1 Kiteview does not warrant the performance, functionality, uninterrupted availability or fitness for purpose of Sage Products or other Third-Party Products.
26.2 The Client is responsible for satisfying itself that the relevant Product, including any new version, update or upgrade, materially meets its operational, functional and business requirements.
26.3 Software vendors may introduce, modify, discontinue or change functionality, features, licensing, processes, integrations, APIs or system behaviour between versions, updates or upgrades.
26.4 Kiteview shall not be responsible for changes, defects, limitations, outages or incompatibilities within Third-Party Products which are not caused by Kiteview.
26.5 Where a test environment is available before an implementation or upgrade, the Client is responsible for adequately testing its business processes, functionality, integrations and outputs.
26.6 Services performed by Kiteview to investigate, troubleshoot, configure, develop, correct, accommodate, escalate or provide workarounds for issues arising from Third-Party Products, version changes, updates or upgrades shall remain chargeable unless the issue is directly attributable to an error or omission by Kiteview in performing the agreed Services.
26.7 Availability, uptime, hosting, backup, disaster recovery and service-level commitments relating to Sage Intacct or another vendor-hosted service are governed by the applicable vendor’s terms and service-level agreements. Kiteview does not independently warrant or guarantee availability of services hosted or operated by a third party.
26.8 Kiteview will use reasonable commercial endeavours to assist the Client in escalating relevant vendor issues but cannot guarantee the vendor’s response time or resolution.
- LIMITATION OF LIABILITY
27.1 To the maximum extent permitted by law, and except for deliberate unlawful conduct or gross negligence by Kiteview, Kiteview shall not be liable for any indirect, consequential, incidental, punitive or special loss or damages, including loss of profit, revenue, anticipated savings, goodwill, business opportunity or business interruption.
27.2 Kiteview shall not be liable for loss arising from:
a. failure or defect of a Sage or Third-Party Product;
b. vendor outages or infrastructure failures;
c. Client or third-party modifications;
d. failure by the Client to maintain appropriate backups where this is the Client’s responsibility;
e. unauthorised or inappropriate use of the system;
f. inaccurate information or data supplied by the Client;
g. insufficient Client testing;
h. Client failure to implement recommendations or attend training;
i. cybersecurity incidents not caused by Kiteview’s breach of its legal obligations; or
j. circumstances reasonably beyond Kiteview’s control.
27.3 To the maximum extent permitted by law, Kiteview’s aggregate liability arising from any event or series of connected events shall not exceed the fees actually paid to Kiteview for the specific Product or Services giving rise to the claim.
27.4 Nothing in these Terms excludes liability which cannot lawfully be excluded or limited.
EMPLOYEES AND RESOURCES
- NON-SOLICITATION
28.1 During the Client’s engagement with Kiteview and for 12 months thereafter, neither party shall knowingly and directly solicit for employment or engagement any employee or consultant of the other party materially involved in the engagement without prior written consent.
28.2 General recruitment advertising not specifically directed at the other party’s personnel shall not constitute solicitation.
28.3 Where a party breaches this provision, the parties acknowledge that the innocent party may suffer substantial recruitment, training, knowledge and replacement costs.
28.4 Subject to applicable law, the breaching party shall be liable for an agreed amount equal to the greater of R500,000 or six times the relevant person’s gross monthly remuneration, which the parties acknowledge is intended as a reasonable pre-estimate of such loss and not as a penalty.
TERMINATION AND GENERAL PROVISIONS
- TERMINATION
29.1 Either party may terminate an ongoing Kiteview service arrangement in accordance with any notice period specified in the applicable Order.
29.2 Termination shall not affect:
a. amounts already due;
b. Services already performed;
c. non-cancellable vendor commitments;
d. software or subscriptions already ordered or activated;
e. accrued rights; or
f. provisions intended to survive termination.
29.3 Where no termination period is specified for an ongoing Kiteview service, either party may terminate on 30 days’ written notice, subject to existing fixed-term commitments.
29.4 Kiteview may terminate or suspend Services immediately where continued performance would be unlawful, present a material security risk or where the Client commits a material breach that cannot reasonably be remedied.
- LATE PAYMENT AND COLLECTION
30.1 Kiteview reserves the right to charge interest on overdue amounts at 2% per month, or the maximum lawful rate if lower, calculated from the due date until date of payment.
30.2 The Client shall be liable for reasonable collection and legal costs incurred by Kiteview in recovering overdue amounts, to the extent permitted by law.
30.3 Acceptance by Kiteview of late or partial payment does not constitute a waiver of its rights.
- FORCE MAJEURE
Neither party shall be liable for delay or failure to perform obligations caused by events reasonably beyond its control, including natural disasters, power or telecommunications failures, internet outages, acts of government, civil unrest, labour disruption, cyber incidents, vendor outages or failures of third-party infrastructure, provided that the affected party takes reasonable steps to mitigate the effect where possible.
- GOVERNING LAW AND DISPUTES
32.1 These Terms and all Orders shall be governed by the laws of the Republic of South Africa.
32.2 The parties shall first attempt in good faith to resolve any dispute through engagement between appropriately senior representatives.
32.3 Nothing in this clause prevents either party from approaching a competent court for urgent relief or from exercising any remedy available under applicable law.
- ORDER OF PRECEDENCE
In the event of inconsistency between documents governing an engagement, the following order of precedence shall apply in relation to Products and Services supplied by Kiteview:
- the applicable signed or accepted Order, Proposal or Statement of Work, but only to the extent that it expressly varies these Terms;
- these Terms;
- applicable Kiteview Service Level Agreements, service schedules or policies; and
- other project documentation.
The applicable Sage or Third-Party Provider terms shall separately govern the Client’s licensing, subscription, access to and use of the relevant Sage or Third-Party Products and Services. Nothing contained in a Kiteview Order, Proposal or these Terms shall amend, replace or expand the obligations of Sage or another Third-Party Provider under its own terms, nor shall any obligation of Sage or another Third-Party Provider be deemed to be an obligation of Kiteview unless expressly accepted by Kiteview in writing.
- GENERAL
34.1 No failure or delay by either party in exercising a right shall constitute a waiver of that right.
34.2 If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions shall continue in effect.
34.3 No amendment to an accepted Order shall be binding unless agreed by authorised representatives of the parties, which agreement may be recorded electronically.
34.4 The Client may not transfer its rights or obligations under an Order without Kiteview’s prior written consent, except where permitted by law.
34.5 Kiteview may use appropriately qualified employees, contractors, subcontractors and specialist service providers in delivering Services.
34.6 Electronic communications, approvals and records may be relied upon by the parties as evidence of instructions, approvals and transactions.
34.7 These Terms, together with the applicable Order and documents expressly incorporated into it, constitute the agreement between Kiteview and the Client in relation to the relevant Products and Services.
34.8 Headings are included for convenience and do not affect the interpretation of these Terms.
