Contract Terms and Conditions

1. We are excited to be working with you!

We are Loop Platform Proprietary Limited, a private limited liability company incorporated in accordance with the company laws of the RSA with registration number 2016/400286/07 (“Loop“, “we” or “us“). If you need to find us, we will be at SIS House, Eton Office Park West, Corner of Sloane Street / Harrison Avenue, Bryanston, Johannesburg, RSA or kim@loop.co.za.We own the specialised, internet-based, last-mile delivery software (“Loop Software“). We will allow you to access and use the Loop Software as ‘software as a service’ for purposes of your Business subject to these Terms and Conditions.

2. What are these Terms and Conditions?

2.1. No deal is complete until the paperwork is done! By accepting the quote provided to you, you agree that these Terms and Conditions and the Privacy Notice available at https://www.loop.co.za/privacy-policy/, will govern your access to, and use of, the Loop Software. These Terms and Conditions create a legally binding agreement between us and shall, from the Effective Date, supersede any correspondence, understandings, undertakings and all other agreements concluded between the us in relation to the Loop Software.
2.2. It may be necessary for Loop to change these Terms and Conditions from time to time. If we do so, we will let you know in writing. If you do not understand any of the Terms and Conditions, or if you do not agree with any of the Terms and Conditions (or any amendments that we make), please cease the use of the Loop Software immediately and contact us at kim@loop.co.za.

3. Access to and use of the Loop Software

3.1. We will grant you non-exclusive access to, and use of, the Loop Software for the duration as set out below, during which period you may not terminate the Terms and Conditions for convenience: 
3.1.1 for a fixed 90-day period with effect from the Effective Date, if you have chosen our 90-day trial period option (“Trial Period”);
3.1.2 unless you let us know otherwise prior to the expiry of the Trial Period, for a fixed 12-month period with effect from the expiry of the Trial Period; or
3.1.3 for a minimum of 12 months with effect from the Effective Date (“Fixed Period”), if you have not selected our 90-day Trial Period option.
3.2 Thereafter, you may terminate your access and use of the Loop Software on not less than 90 days’ written notice to Loop.
3.3 You may only use the Loop Software for purposes of your Business.

4. Development Fees

4.1 We agree that we will undertake some additional development work in relation to the Loop Software, as set out in the table below (“Development Work”). We agree that Loop will undertake the Development Work at the fees below for its own account (“Development Fees”):

Development work
Fees
Payment on Delivery
R375 000
Reporting
R75 000

4.1.1. However, should:
4.1.2. you fail or neglect to use or access the Loop Software for at least the Fixed Period; and/or
4.1.3. Loop lawfully terminates or cancels these Terms and Conditions in accordance with clause 16 or clause 17, as the case may be, before the expiry of the Fixed Period, (“Early Termination Event”), in addition to any other remedies available to us, you will be liable for the full amount of the Development Fees, payable to us within 7 days of written demand. 
4.2 The Development Work shall in all respects be subject to the provisions of clause 11 and we shall not be restricted or limited from offering the Loop Software, with or without the Development Work, to any other client.

5. Third Party Products and Services

5.1 You may elect to use a Third Party Service Provider, which may integrate into, or with, the Loop Software. You may make this election in the Quote. We will let you know if there are any integration charges, which we will include in the Quote. 
5.2 We prefer that you enter into all contracts with Third Party Service Providers directly to use the Third Party Products and Services. If, however, you require us to enter into any contract with such Third Party Service Provider to allow the integration of those Third Party Products and Services with the Loop Software (“Third Party Contracts”), we will do so, but we will not be liable for any damages that you, or we, may suffer as a result of those Third Party Contracts.
5.3 Accordingly, you indemnify and hold harmless Loop from any and all losses (whether direct or indirect) that Loop may suffer arising from a Third Party Contract, save for any losses that are directly and solely as a result of Loop’s wilful misconduct or breach of those Third Party Contracts.  

6. Duration

6.1. The duration of these Terms and Conditions (and your access to and use of the Loop Software) will be determined with reference to your choice of plan. The initial period of your access to and use of the Loop Software is set out in the table below (“Initial Period”). During the Initial Period of your access to and use of the Loop Software, you may not terminate these Terms and Conditions for convenience.

Plan
Initial Period
Enterprise Plan
You may use the Loop Software for a fixed 90-day trial period from the Effective Date (“Trial Period”).If you do not cancel your subscription before the expiration of the Trial Period, your Initial Period will be a fixed 12-month period with effect from the expiry of the Trial Period. Thereafter, you may terminate your subscription on at least 90 days’ notice to us.

7. Fees

7.1. You will pay to us the Fees on or before the last day of each month, calculated with reference to the number of Tasks for that month, using the payment method that you have selected as part of the Quote. All payments must be made free and clear of any set-off, deductions, conditions or other restrictions. If you have selected ‘credit card’ as a payment method, you hereby authorize us to charge your credit card for the Fees incurred in terms of these Terms and Conditions until you terminate these Terms and Conditions in accordance with clause 4.
7.2. Our Fees will only increase once per year on 1 March. We will notify you in writing of these changes to our Fees. If you do not agree with the Fee increase, then you may terminate your access and use of the Loop Software on 30 days’ written notice to us.
7.3. Loop shall provide on-site and on-the job user training to your representatives who are directly involved with the Loop Software in accordance with the Quote. Thereafter, you will be liable for the Training Costs as per the rates set out in the Quote.
7.4. You will reimburse us for all reasonable and necessary expenses incurred by Loop in relation to travel and accommodation as may be necessary for Loop to on-board you to access and use the Loop Software, provided that we will submit written proof of such expenses to you and any single expense in excess of R10,000 shall require your prior written approval.
7.5. The Fees and Training Costs are calculated based on the rates set out in the Quote. If you wish to dispute the amount or calculation of any Fees and/or Training Costs and/or disbursements due to Loop, then the undisputed amount shall be to Loop and the disputed amount only shall be a “Fee Dispute”.

8. Fee Disputes

8.1. Any Fee Dispute shall be referred to Loop’s auditors for the time being, who shall act as an expert (“Expert”) to resolve the Fee Dispute in accordance with the following principles: the Expert (i) shall investigate the Fee Dispute or matter in question in such manner as he in his sole and absolute discretion considers appropriate (ii) shall afford the Parties to the Fee Dispute the opportunity to make such written or oral representations as they wish to make, subject to such reasonable time and other limits as the Expert may prescribe (iii) shall have such access as he may reasonably require to the books, records and documents of the Parties for the purpose of determining the dispute (iv) shall attempt to reach his determination as soon as practicable in the circumstances (v) his determination shall, in the absence of any fraud, manifest or clerical error, be final and binding on the Parties and (vi), shall make a finding as to which Party shall bear the costs and charges of the Expert.

9. Service Levels

9.1. We will provide the Loop Software to you with a system availability of at least 98% measured over a rolling 90-day period (“System Uptime”). We work hard to ensure the System Uptime, but should we be unable to maintain the System Uptime in any given month, your exclusive remedy will be an adjustment of the Fees for that month, as outlined below:

System Availability
Fee Reduction
Less than 98% but more than 95%
2%
Less than 95% but more than 93%
5%
Less than 93% but more than 90%
7%
Less than 90%
10%

9.2. For the purpose of calculating our System Uptime, the following principles will apply: i) System Uptime will be calculated with reference to percentage of minutes per month, namely, the percentage of minutes in a calendar month that the key components of the Loop Software are operational and ii) the calculation shall exclude any minutes of system down time resulting from scheduled maintenance, events of force majeure, malicious external attacks on the Loop Software, issues or failures of the Client’s computing devices, local area networks or internet service provider connections or our inability to render the services to the Client as a result of the Client’s acts or omissions. 

10. Support Services

10.1. For any support services, please follow our innovative support services process using our Fresh Desk. If our Fresh Desk is unable to resolve your support service request, please log a request with support@loop.co.za

11. Upgrades and Maintenance

11.1. Loop may take the Loop Software offline for scheduled upgrades and/or maintenance, which scheduled upgrades and/or maintenance shall be completed between the hours of 00h00 and 06h00. Loop may carry out additional system upgrades and/or maintenance on at least 7 days’ prior written notice to you.
11.2. Loop shall use its commercially reasonable efforts to ensure that the Loop Services will be available for 24 hours a day, except (i) during planned downtime for upgrades and/or maintenance (ii) during emergency downtime to ensure the stability of the Loop Software for all its users and (iii) for any circumstances which are outside of our control, including force majeure events, Internet service provider failures or delays and related events. We will not be liable for any damages that you may suffer as a result of the Loop Software being unavailable from time to time, other than as expressly set out in clause 9.

12. Relationship Manager

12.1. In order to facilitate the smooth and effective management of the relationship between us, we will liaise with your appointed Relationship Manager. Your Relationship Manager shall have the power and authority to make decisions with respect to actions to be taken by you in the ordinary course of day-to-day management of the Loop Software.
12.2. You may replace your Relationship Manager on not less than 10 Business Days’ written notice to us , which notice shall include the new Relationship Manger’s contact details.

13. Intellectual Property Rights

13.1. Loop owns all Intellectual Property Rights in respect of the Loop Software and/or any upgrades, changes and modifications to such Loop Software (including any integration and/or additional development requests that you may make from time to time). No right, title, interest or any type of Intellectual Property Rights shall be acquired by the Client in, or to, the Loop Software, other than to access and use the Loop Software in accordance with these Terms and Conditions.
13.2. Subject to the data protection and confidentiality provisions, Loop shall be entitled to use any input information and/or data from the Client for purposes of maintaining, improving and upgrading the Loop Software from time to time.
13.3. All of the Client’s existing intellectual property, including its brand names and trademarks (“Background IP”), shall remain the property of the Client and nothing in these Terms and Conditions shall operate to transfer or limit the Client’s ownership of its Background IP.

14. Application of the POPI Act

14.1. With effect from the POPI Act Effective Date, each Party shall Process Personal Information insofar as it relates to the Loop Software in accordance with the provisions of the POPI Act.
14.2. The Parties record and agree that Loop shall act as an Operator for and on behalf of the Client, insofar as the Client provides Personal Information to Loop, through its access to and use of the Loop Software, for purposes of its Business (“Services Data“). To this end:
14.2.1. these Terms and Conditions constitute the written agreement between the Client, as the Responsible Party, and Loop, as the Operator, for purposes of section 21(1) of the POPI Act;
14.2.2. Loop shall establish and maintain the security measures required by section 19 of the POPI Act; and
14.2.3. Loop shall notify the Client immediately where there are reasonable grounds to believe that the Personal Information of a Data Subject has been accessed or acquired by any unauthorised persons, in the manner contemplated in section 21(2) of the POPI Act; and
14.2.4. the Client warrants to, and in favour of, Loop that all Personal Information provided to Loop pursuant to these Terms and Conditions and/or for the access to and/or use of the Loop Software was Processed by the Client in accordance with the POPI Act.
14.3. The Client indemnifies and holds harmless Loop from any and all losses arising from any claim or action brought against Loop arising from, or due to, the Client’s breach of its obligations pursuant to this clause 13 and/or the POPI Act.
14.4. Loop may suspend the Client’s access to and use of the Software as a result of the Client’s breach of this clause 14 and/or the POPI Act, until such time as the Client has remedied its breach.
14.5. Loop shall not use the Services Data for any purpose other than to ensure the efficient operation of the Software and for anonymised and de-identified statistical analysis.

15. Confidentiality

15.1. Each of the Parties shall keep confidential the details of these Terms and Conditions, as well as the details of all the transactions or agreements contemplated in these Terms and Conditions and all information relating to the business, the operations, affairs, assets and liabilities of any Party (together “Confidential Information”) and shall not use or disclose such information without the prior written consent of the other Party or in accordance with an order of court of competent jurisdiction or in order to comply with any law or government regulation by which the Party concerned is bound.
15.2. The Client shall not disclose, publish, utilise, employ, exploit or use the Confidential Information in any manner whatsoever, for any reason or purpose whatsoever, other than as may be necessary to make use of the Software on these Terms and Conditions. Without limiting the generality of the aforegoing, the Client shall not decompile, disassemble or reverse engineer or otherwise modify, adapt, alter or vary the whole or any part of the Confidential Information and/or the Loop Software.

16. Relationship

16.1. The relationship of the Parties shall be that of independent contractors. No partnership or joint venture is created hereby. Neither Party shall be entitled to bind the credit of the other.
16.2. Save as contemplated herein (i) these Terms and Conditions do not constitute either Party as the legal representative, employee or agent of the other (ii) nothing in these Terms and Conditions shall constitute the employees of either Party as being regarded as the employees of the other for any purpose whatsoever and (iii) neither Party shall have the authority to assume any obligation of any kind on behalf of the other or to bind or commit the other Party in any way.

17. Notices and Addresses

17.1. Each of the Parties selects the address set out in these Terms and Conditions as their respective addresses for the receipt of all written notices under these Terms and Conditions and as their respective physical addresses for the receipt of all legal documents in connection therewith. Either Party may change its physical or email address by given the other Party at least 5 Business Days’ written notice of the change.
17.2. Notices may be delivered by hand or by successful transmission of email. Notices delivered by hand shall be deemed, unless the contrary is proven by the addressee, to have been received on the date of delivery. Notices despatched by successful email shall be deemed to have been received within 4 hours of transmission where it is transmitted during normal business hours or within 24 hours of the opening of business on the first Business Day after it is transmitted where it is transmitted outside those business hours.
​17.3. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to that Party notwithstanding that it was not sent to or delivered at that Party’s chosen address in these Terms and Conditions.
17.4. Any Party may, by written notice to the other Party, change its physical or postal address for the purposes of this clause 14 to another address, or change its telefax number by giving the other Party at least 5 Business Days’ days’ written notice of any such change.

18. Summary Termination

18.1. Loop may terminate these Terms and Conditions (and your access to and use of the Loop Software) with immediate effect on written notice to you, if you (i) fail to make timeous payment of any Fees due to Loop more than 3 times for the duration of these Terms and Conditions (ii) fail to comply with any of your obligations pursuant to clause 11 and/or the POPI Act (iii) undergo, or is subject to, a change of control in the shareholders, members, beneficiaries and/or trustees of the Client (iv) become subject to any provisional or final order for sequestration, liquidation, winding-up, business rescue proceedings or to any similar process (v) subject yourself or adopt any resolution to subject yourself to any voluntary proceedings under any law, regulation or procedure relating to insolvency, reconstruction, business rescue or readjustment of debts or relief from creditors or (vi) fail to satisfy any judgment against you within 15 Business Days after becoming aware of the judgment.

19. Breach

19.1. Should any Party commit a breach of any of the provisions of these Terms and Conditions and fail to remedy that breach within 10 Business Days after receipt from the other Party of written notice calling upon it so to do, then the Party aggrieved by that breach will be entitled, in addition to and without prejudice to any right it may have as a result of that breach, either to (i) enforce specific performance of the terms hereof or (ii) cancel these Terms and Conditions and cease / suspend access to and use of the Loop Software and recover such damages as it may have sustained, provided that a Party shall only be entitled to cancel these Terms and Conditions if the breach is material and goes to the root of these Terms and Conditions and cannot be remedied adequately by the payment of damages and, being such a breach, is not remedied or is not capable of being remedied by specific performance within a reasonable period of time after the relevant Party receives written notice to remedy the breach.
19.2. The remedies in this clause 19 shall not be exhaustive and shall be in addition and without prejudice to any others they may have under or in consequence of these Terms and Conditions.

20. Limitation of Liability

20.1. Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, and subject to the provisions of clause 17.2, Loop’s maximum liability for general and/or direct damages for any breach of these Terms and Conditions shall be limited to an aggregate amount of all the Fees paid to Loop during the 6 month period immediately preceding the alleged breach of contract, save where such damages arise out of the fraud or wilful misconduct of Loop.
20.2. Neither Party shall be liable for any indirect or consequential damages and such liability is excluded whether it is foreseen, foreseeable, known or otherwise.

21. Governing Law and Jurisdiction

21.1. These Terms and Conditions shall in all respects be governed by and construed in accordance with the law of the RSA, and all disputes, actions and other matters in connection therewith shall be determined in accordance with such law.
21.2. Each of the Parties hereby consents and submits to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division (Johannesburg) for the purposes of all or any legal proceedings arising from or concerning these Terms and Conditions.
21.3. Nothing in these Terms and Conditions shall prevent any Party from seeking relief on an urgent or interlocutory basis from any High Court of South Africa with jurisdiction.

22. General

22.1. No agreement varying, adding to, deleting from or cancelling these Terms and Conditions and no waiver of any right under these Terms and Conditions, shall be effective unless reduced to writing and signed by a duly authorised representative of each of the Parties.
22.2. No indulgence granted by a Party to the other Party shall constitute a waiver of any of its rights under these Terms and Conditions; accordingly a Party shall not be precluded, as a consequence of having granted that indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.
22.3. The Client shall not be entitled to cede its rights and/or delegate its obligations under these Terms and Conditions to any third party. Loop shall be entitled to cede its rights and/or delegate its obligations under these Terms and Conditions to a third party on written notice to the Client.
22.4. All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of these Terms and Conditions, including without limiting the generality of the aforegoing, legal costs on the scale of attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable on demand from the other Party against which such rights are successfully enforced and shall be payable on demand.
22.5. Each of the provisions of these Terms and Conditions shall be considered as separate terms and conditions and in the event that these Terms and Conditions are affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited or unenforceable provision was not a part hereof.

23. Definitions and Interpretations

23.1. In these Terms and Conditions, unless the context indicates otherwise, the words and expressions below shall have the following meanings (and cognate expressions shall bear corresponding meanings):
 
Word or Expression
Definition
Business
the Client’s business, as described in the Quote, for which it intends to use the Loop Software;
Business Day
any day other than a Saturday, Sunday or public holiday in the RSA, within the meaning of the Public Holidays Act, 1994;
Loop Software
Loop’s specialised last-mile delivery software compromising the source code, object code, software listings, schematics and all other code and all Intellectual Property Rights relating thereto, as described in these Terms and Conditions;
Client
the entity described in the Quote that wishes to access and use the Loop Software;
Effective Date
is the date on which the Client can start using the Loop Software;
Fees
the consideration payable by the Client to Loop in respect of the use of and access to the Loop Software, as set out in the Quote, all stated exclusive of VAT, which will comprise of the fixed monthly fee, the additional fees per Task as well as any other optional extras selected by the Client;
Intellectual Property Rights
all intellectual and industrial property rights of whatever nature comprised in, or relating in any way to, the Loop Software anywhere in the world and all rights pertaining thereto, whether recorded or registered in any manner, or otherwise, including without prejudice to the foregoing generality, patents, trademarks, registered designs (including applications for any of the same), copyright, design rights, semi-conductor topography rights, database and software rights, mask works, trade secrets, know-how, business names, trade names, brand names, domain names and all other legal rights anywhere in the world protecting or relating to such Software;
Parties
the Client and Loop and their permitted assignees and successors-in-title, or any one of them as the context may require;
POPI Act
Protection of Personal Information Act, 2013;
POPI Act Effective Date
1 July 2001
Quote
the quote prepared by Loop and accepted by the Client, which is incorporated by reference into these Terms and Conditions;
Relationship Manager
the authorised representative of the Client, whose details are set out in the Quote;
RSA
the Republic of South Africa;
Support Services
services to provide support in relation to the identification and resolution of errors in the Loop Software, but shall exclude training services;
Task
any delivery, collection or other task completed using the Loop Software, whether or not such delivery, collection or other task is ultimately fulfilled or completed by the Client; and
Training Fees
the training fees in respect of training to be provided by Loop to the Client, as provided for in the Quote.
23.2. Where any term is defined within the context of any particular clause in these Terms and Conditions, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this definitions clause.
​23.3. These Terms and Conditions shall be interpreted in accordance with the following principles:
23.3.1. a reference to a “person” includes a reference to an individual, partnership, company, close corporation, other body corporate, a trust, an unincorporated association or a joint venture and that person’s legal representatives, successors and permitted assigns;
23.3.2. any reference in these Terms and Conditions to legislation or a statute shall be a reference to such legislation or statute as at the Effective Date and as amended, varied, re-enacted or replaced from time to time;
23.3.3. if the day for performance of any obligation to be performed in terms of these Terms and Conditions should fall on a day which is not a Business Day, the relevant day for performance shall be the immediately succeeding Business Day;
23.3.4. where any number of days is prescribed in these Terms and Conditions, that number shall be determined exclusively of the first day and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the immediately succeeding Business Day;
23.3.5. all monetary amounts are stated exclusive of VAT and in RSA Rand (or R), unless provided otherwise, and VAT is payable at the same time and in the same manner as is any other amount payable under these Terms and Conditions, where that amount is subject to VAT;
23.3.6. the use of the word “including” followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific examples;
23.3.7. the expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.