Terms and conditions of use

1. Interpretation

1.1The headings of the clauses in this Agreement are for the purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of this Agreement.

1.2Unless a contrary intention appears, words importing-

1any one gender includes the other gender;

2the singular includes the plural and vice versa; and

3a natural person includes a juristic person (corporate or unincorporated) and vice versa.

1.3A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.

1.4If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.

1.5When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first day and inclusive of the last day, unless the last day is not a business day, in which case the last day shall be the next succeeding business day.

1.6The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement 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.

2. Definitions

2.1The definitions and rules of interpretation in this clause apply in this Agreement.

1“Affiliate” means, in relation to a legal entity, any person which Controls that entity, is under that entity’s Control or is Controlled by the same person who Controls that entity, where “Control” means possessing, directly or indirectly, the ability to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise, and “Controlled” shall have a corresponding meaning;

2“Agreement” means this agreement, setting out the terms and conditions of use of the Application and Documentation, and any schedules and annexures thereto as published and amended from time to time on the Application or anywhere else;

3“Application” means the online digital platform made available to an Authorised User through a License Holder by us;

4“Application Terms” means the terms and conditions of this Agreement;

1. “Associated Party/ies” means in relation to a Party:<span id="_Ref472869191" class="anchor"></span>

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1. all shareholders, directors, members, business partners, trustees, associated and/or related companies and/or entities (directly or indirectly), heirs, executors, administrators, employees, agents and/or representatives, sub-contractors, independent contractors or consultants of the Party or any Person related or connected to any of the parties listed in this clause 2.1.5.1; and/or

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1. any Person related or connected to the Party;

5“Authorised Users” means users of the Application, including yourself (also referred to as “you” in this Agreement), who may be a License Holder or user authorised by the License Holder, or an authorised user who will use the Application and the Documentation in relation to one or more Client as directed in this Agreement and the Documentation;

6“Bona Fide” is a Latin phrase meaning good faith, used to describe anything that is genuine or honest. In the context of this Agreement it is used to describe the manner in which the Authorised User uses the Application;

7“Client/s” means the estates and/or life files managed on the Application;

8“Client Data” means the data captured by the License Holder and/or other Authorised Users relating to the Client, which may include Personal Information;

9“Confidential Information” means any information or data which by its nature or content is identifiable as confidential and/or proprietary to a disclosing Party, its Associated Parties, and/or any third party, or which is provided or disclosed in confidence, and which such disclosing Party or any Person acting on its behalf may disclose or provide to the receiving Party, or which may come to the knowledge of such receiving Party by whatsoever means, including (without limitation) Intellectual Property, all information relating to a disclosing Party's current and existing strategic objectives, its business activities, business relationships and clients, technical, scientific, commercial, financial and market information and trade secrets, data concerning its architectural information, demonstrations, processes and machinery, all agreements to which it and its clients are a party, information relating to its clients and the content of this Agreement, including information exchanged on the Application, and Documentation, but does not include information as stipulated in clause 8.2 below;

10“Consumer Protection Act” means the Consumer Protection Act 68 of 2008;

11“Documentation” means any documents, including our user manual, made available to Authorised Users, online through the Application or such other web address notified by us to the Authorised Users and/or License Holders from time to time, or manually;

> 2.1.13 “Effective Date” means the date on which this Agreement will come into force and effect, which is the date on which you accept the Application Terms;

12“Intellectual Property” means any know-how (not in the public domain), invention (whether patented or not), design, trade mark (whether registered or not), or copyright material (whether registered or not), processes, process methodology (whether patented or not) and all other identical or similar intellectual property as may exist anywhere in the world, and any applications for registration of such intellectual property. It shall also mean all the rights in and to intellectual property including (without limitation) the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any confidential information or processes relating to that subject matter, and specifically including the Application and Source Code Material;

13“License Holder” means a person who is granted the use of the Application and all the Intellectual Property rights vesting therein by us, subject to a software as a service agreement being signed between us and the license holder;

14“Party” means either us or you (in your personal and/or representative capacity of an entity, where relevant), and “Parties” means both of us, and will include a Party’s Associated Party where relevant;

15“Personal Information” has the meaning ascribed to it in the POPI Act and any applicable law in South Africa;

16“POPI Act“ means the Protection of Personal Information Act 4 of 2003;

17“Processing” means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and “Process”, “Processed” and “Processes” shall be construed accordingly;

18“RICA” means the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002;

19“Source Code Material” means the source code and object code (both magnetic media and printed versions), executable files, and all other programming materials associated with the Application;

20“Estateeze” means the company Estateeze (Pty) Ltd, registration number 2019/527834/07, also referred to “us” in this Agreement;

21“User Details” means the contact, personal and similar information reasonably requested, which should be correct and current at all times; and

22“Virus” means a device or thing (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device which may prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise), or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

2.2In this Agreement, references to a “person” includes an individual, sole trader, partnership, body corporate, an unincorporated association of persons and any other legal entity; technical expressions shall have the relevant meaning commonly attributed to them in the computer software business sector in South Africa; and the use of the word “including” and similar expressions will be construed as illustrative and not exhaustive.

3. Using the application

3.1We hereby grant to you a non-exclusive, non-transferable right to use the Application and the Documentation during your subscription term with the License Holder, provided that all the Application Terms are honoured by you, at all times.

3.2Services provided by a License Holder to Clients and its Authorised Users are subject to arrangements made between them and the Licence Holder.

3.3You are required to register online in order to gain access to the Application and any other services related to the Application and Documentation.

3.4When you log on to the Application, you agree to provide, true, accurate, up-to-date and complete User Details as required by you via the Application. Upon successfully logging on to the Application, you agree to indemnify us from any damages caused by malicious use, or false or incorrect information provided, by you or any other Authorised Users, at any time.

3.5We are not responsible for the execution of the relevant estate instrument, and we will not be held accountable to the beneficiaries and/or heirs or any other interested parties. We merely provide a tool in the form of the Application that Authorised Users and License Holders can use to assist them with their compliance and administration responsibilities.

3.6You will specifically indemnify us against the following:

1The use of the Application for purposes other than its intended purpose as envisaged in the Application Terms;

2Documents being saved into incorrect folders by yourself and/or a License Holder, or any other Authorised User;

3Users, with viewing rights only, who get access to documents that have been uploaded into incorrect folders by yourself and/or a License Holder and/or any other Authorised User;

4False, misleading or deceptive information provided by yourself and/or a License Holder and/or any other Authorised User;

5Being held liable for any penalty charges or fees due to absent, incomplete or incorrect documentation or information;

6Any damages suffered due to the addition or removal of an Authorised User. For example, any change to the role of an Authorised User, which needs to be approved by the Master of the High Court, should only be affected on the Application once such written approval is received from the Master of the High Court;

7Any damages caused by the mismanagement, maladministration or misuse of the Application by you and/or a License Holder and/or any other Authorised User; and

8Any damages caused by unauthorised users who gain access to the Application by using log-in details provided by yourself, or any other Authorised User, whether on purpose or by accident.

3.7You acknowledge that any Documentation on the Application belongs to us and you will in no way or manner copy or use the Documentation for purposes other than the administration of a Client as Authorised User.

3.8You acknowledge that the License Holder is ultimately responsible to ensure that the Client complies with all applicable laws and regulations and that administration requirements are adhered to.

3.9You acknowledge that the Application is merely a tool that we are providing to assist you, the Client, the License Holder and any other Authorised User with estate administration and estate planning.

4. Services

4.1While you have access to the Application, you will have full access to all products related to the Application and specified Documentation, as Authorised User.

4.2We will use commercially reasonable endeavours to make the Application available 24 (twenty-four) hours a day, 7 (seven) days a week, except for:

1planned maintenance carried out during the maintenance window on Saturdays between 21h00 and 24h00; and

2unscheduled maintenance performed as and when needed and where reasonably possible, notified to you and/or the License Holder.

4.3We will, as part of the Application, provide a dedicated server to store all Client Data. You acknowledge and agree that you shall not store any information on the Application that is not required to be stored for the relevant Client. You acknowledge that any data captured on the Application will form part of the property of the Client.

4.4The Application, with specific reference to the capturing of data and subsequent generating of any documents, in the widest sense, is dependent on information and/or documents provided by you and/or any other Authorised User. We and the relevant License Holder shall not be held liable for the capturing of any false, misleading or deceptive information provided by you or any other Authorised User, nor for the inaccuracy of any documents generated by the Application which rely, in any way, on information provided by you and/or any other Authorised User.

5. Our obligations and warranties

5.1We undertake that the Application will perform substantially in accordance with this Agreement and the Documentation, with reasonable skill and care. We will comply with all applicable laws and regulations with respect to our activities under this Agreement, including the Consumer Protection Act, and others specifically dealt with in the Application Terms.

5.2The undertaking in clause 5.1 above shall not apply to the extent of any non- conformance, which is caused by the use of the Application contrary to our instructions, modifications or alterations.

5.3If the Application does not conform with the undertaking in clause 5.1 above, we will use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Authorised Users with an alternative means of accomplishing the desired performance, provided that it was not an error on your or any other Authorised User’s part.

5.4Notwithstanding the foregoing, we:

1do not warrant that your use of the Application will be uninterrupted or error-free; and

2are not responsible for any delays, delivery failures, or any other loss or damage resulting from the downtime of network providers, transfer of data over communication networks and facilities, strike actions by postal services, power outages, any natural disaster and/or calamity as per clause 11 below.

5.5We warrant that we have and will maintain all necessary licenses, contents and permissions necessary for the performance of our obligations under this Agreement.

5.6We will specifically adhere to the POPI Act (Annexure “A”) pertaining to our own affairs.

6. Your obligations

6.1You accept that you will be responsible for all activities conducted as a result of any access obtained through the use of your log-in information. Should you share your access rights with any other person by disclosing or allowing others to gain knowledge of your log-in information or you leave your browser unattended while in an active browser session; or in any other manner, conduct or access the Application carelessly or negligently, you will be held accountable in your personal capacity and, where relevant, as representative of an entity, and you hereby indemnify both us and the relevant License Holder (who provide services to you) against any losses or damages caused as a result.

6.2You acknowledge that your log-in information is our property and it may be revoked or suspended at our discretion.

6.3Should you become aware of any breach or attempted breach of our data security, you shall inform our management without delay, in writing.

6.4You will comply with all applicable laws and regulations with respect to your activities under this Agreement.

6.5You will only use the Application and the Documentation in accordance with the Application Terms and for its intended use.

6.6You will take responsibility, and have the necessary approval, for the provision of any Personal Information, either your own or any other’s. In the event that you upload any document on the Application and you want to, or have to, only allow one person access to the document, you will ensure that you mark it as a personal document on the Application to not allow any other Authorised Users (excluding the License Holder who has to provide service to you and the Client) access to the document in order to limit access to any Personal Information.

6.7You accept that you will be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres.

6.8You will make use of the Application using computers with a minimum specification as specified by us in writing from time to time.

7. Your warranties and undertakings

7.1You hereby warrant that:

1you are a Bona Fide user of the Application and as Authorised User you will only access the Application and Documentation for purposes of fulfilling your role in the Client;

2you will adhere to all the Application Terms; and

3you will indemnify us from all legal action taken against you, the Client/s, and other Authorised Users resulting from the use of the Application and Documentation.

7.2You hereby undertake that:

1you shall keep a secure password for your use of the Application and Documentation. We will not be held liable for any damage or inconvenience suffered due to the misuse of your, or any other Authorised User’s, password or user profile;

2you shall prevent any unauthorised access to, or use of, the Application and/or the Documentation, and in the event of any such unauthorised access or use, you shall promptly notify us and the License Holder in writing;

3you shall endeavour that all Authorised Users will comply with this Agreement and Documentation, from time to time;

4you shall only use the Application and the Documents for its intended use and for no other purpose;

5you shall not, where applicable, access, store, distribute or transmit any Viruses, or any material during the course of your use of the Application that is unlawful, harmful, threatening, defamatory, obscene, infringing, of a sexual nature, harassing or racially or ethnically offensive. We reserve the right to disable an Authorised User's access to this Application and Documentation and/or any material that breaches the provisions of this sub clause;

6you shall not (and you shall also prohibit other Authorised Users not to) directly or indirectly, except as may be allowed by any applicable law, which is incapable of exclusion by agreement between the Parties, and except to the extent expressly permitted under this Agreement, directly or indirectly:

7# allow or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application and/or Documentation in any form or media or by any means; and/or

8# allow or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application and/or Documentation; and

9you shall request written permission from us if you (directly or indirectly) intend to independently develop software with features similar to the Application and/or Documentation. You hereby assign and transfer all such Intellectual Property rights procured by you (directly or indirectly), in breach of this sub-clause, to us, or an Associated Party nominated by us, or our licensor, and agree to sign all documents and do all things necessary in order to perfect, record, or record in writing, the aforementioned transfer.

7.3You understand and confirm that if we have to institute legal proceedings against you, any other Authorised User, or a Client in court, you may, where relevant, be held liable for all costs incurred, including but not limited to legal costs on the scale “attorney-and-own-client” (which means the costs incurred by us for the attorney’s professional services, and/or any expenses and/or costs incurred by such an attorney in taking legal action against you, a Client or any Authorised User).

7.4You understand and confirm that neither you, the Client or any other Authorised User will institute any legal proceedings against us or make us part of any legal proceedings instituted against you, the Client or any other Authorised User. You confirm that if any of the aforementioned should realise, you indemnify us from having to pay any legal costs, which includes legal fees and cost orders against you, the Client or any other Authorised User, issued by any court of law, or any other related costs.

8. Confidentiality

8.1Access to Confidential Information may be given to you and other Authorised Users from time to time in order for each party to perform their obligations under this Agreement.

8.2Confidential Information shall not be deemed to include information that:

1is or becomes publicly known other than through any act or omission of the receiving Party;

2was in the other Party's lawful possession before the disclosure;

3is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

4is independently developed by the receiving Party, which independent development can be shown by written evidence; and/or

5is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

8.3For the purposes of this Agreement, the Parties hereto agree to share all relevant information within the spirit of mutual trust and confidentiality.

8.4Each Party shall hold the other Party's Confidential Information in confidence and, unless required by law, not make the other Party's Confidential Information available to any third party, or use the other Party's Confidential Information for any purpose other than the implementation of this Agreement.

8.5Each Party shall take all reasonable steps to ensure that the other Party's Confidential Information, to which they have access, is not disclosed or distributed to any person other than another Authorised User, in violation of the Application Terms, without the prior written consent of the disclosing Party of such information first being obtained.

8.6Subject to the provisions of RICA you agree to our right to intercept, block, filter, read, delete, disclose and use all communications which you send or post to the Application and us. You acknowledge that this consent and your use of the Application satisfy the ‘writing’ requirement as required by RICA.

9. Remedies for breach

9.1You agree that irreparable damage could occur if you breach any of the clauses in this Agreement, including but not limited to our Intellectual Property rights and Confidential Information. You, in your personal capacity, or as representative of an entity, where relevant, and on behalf of the Client and other Authorised Users, accordingly agree that we shall be entitled to apply for and be granted an order for specific performance, in addition to any other remedy to which we may be entitled in law, including a claim for loss of income and damages.

9.2Should any Party (“the Defaulting Party”) breach any of the provisions of this Agreement and the breach is material or the Defaulting Party fails to remedy that breach within 10 (ten) business days after receipt of a written notice from the non-Defaulting Party, requiring it to remedy that breach (or, where such breach is not capable of being remedied within the aforesaid period, should the Defaulting Party fail to take all reasonable possible steps within such period to commence remedying the breach complained of), the non-Defaulting Party will be entitled to:

1firstly, seek specific performance from the Defaulting Party; and only thereafter or in the event that specific performance be an inappropriate remedy, the onus being on the non-Defaulting Party to show this;

2terminate this Agreement, on the occurrence of the material breach or on the expiry of the 10 (ten) business day period, as the case may be, in addition to any other rights and remedies that it may have in terms of this Agreement or otherwise and without prejudice to any claims which such non-Defaulting Party may have for damages against the Defaulting Party upon written notice to the Defaulting Party as envisaged in this Agreement.

9.3In the event of the non-Defaulting Party having to incur legal costs, as a result of the Defaulting Party’s breach of the provisions of this Agreement, the non-Defaulting Party shall be entitled to recover such costs from the Defaulting Party on the scale as between attorney and own client.

9.4The termination of this Agreement, for whatever reason, will not affect the rights of a Party, which may have accrued as at the date of termination and will further not affect any rights which specifically, or by their nature, survive the termination of this Agreement.

10. Limitation of liability

10.1We will in no event be liable to you, the Client, or any other Authorised User for:

1any direct or incidental, indirect, special or consequential damages or loss, including but not limited to, interrupted or complete loss of use, revenues, profits, or savings;

2claims, demands or actions against you, the Client, or any other Authorised User by any third parties, or payments due or made by you, the Client, or any other Authorised User to third parties;

3any faulty installation or implementation, delay, failure, breakdown or malfunction of the Application, interruption of service or inability to use the Application;

4non-compliance by a License Holder with the terms of the software as a service agreement being entered into between us and the License Holder, which may result in us terminating our agreement with the License Holder and removing your, their and other Authorised User’s access to the Application and Documentation; and

5any other loss or damage of whatsoever nature which may be sustained by you, the Client, or any other Authorised User; arising out of any cause of whatever nature and however arising, including but not limited to the negligence on the part of us and/or our Associated Parties.

10.2The Parties’ engagement as per this Agreement will not, and cannot, be relied upon to disclose financial errors, irregularities or illegal acts such as fraud or misappropriation, which may exist or take place during the term of this Agreement. You, in your personal capacity and as representative of an entity, where relevant, hereby indemnify us against all claims against us arising from such financial errors, irregularities or illegal acts, such as fraud or misappropriation.

10.3The limitation of our liability will specifically include any other clauses in this Agreement where our liability has been referenced.

11. Force majeure

> We shall have no liability to you, the Client, or any other Authorised User if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of us or our sub-contractors, provided that you are notified, where possible, of such an event and its expected duration.

12. Dispute resolution

12.1Both Parties shall be subjected to this clause. You will procure the participation of all parties introduced by the Client, any other Authorised User and/or the License Holder, where relevant.

12.2The Parties shall firstly attempt, in good faith, to settle their disputes and disagreements amongst themselves.

12.3In the event that a dispute, disagreement or deadlock cannot be resolved amongst the Parties, the Parties will attempt to resolve it through mediation. The mediation shall take place in South Africa and shall be conducted in accordance with the laws of the Republic of South Africa. The Parties shall agree on a mediator within 5 (five) business days, since the dispute arose. Should the mediator be unable to accept the invitation to act as mediator, the Parties may, within a further 5 (five) business day period, agree on another mediator. If the Parties are unable to agree on a mediator within a further 5 (five) business day period, then any Party may approach the Chairperson of the Association of Arbitrators, Southern Africa (“AoA”), to submit to each Party a list of names of potential mediators. The Parties will then have a further 5 (five) business day period within which to agree on a mediator. Should they be unable to agree, the AoA will be asked to appoint a suitable mediator as a matter of urgency.

12.4The mediator shall endeavour to assist the Parties to settle the dispute by agreement. The mediator shall not adjudicate the dispute, disagreement or deadlock, make any recommendations to the Parties, or advise any Party on the merits of the dispute, disagreement or deadlock. The mediator shall have the discretion to conduct the mediation in such a manner as they determine. The mediator shall be responsible for the administration of the mediation, including the process and conduct of the mediation, which shall be done in an expeditious and cost-effective manner.

12.5Prior to and during the scheduled mediation session(s), the Parties shall, as appropriate to each Party’s circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation.

12.6Every Person involved in the mediation:

1shall keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place and the facts and terms of any settlement, unless disclosure is required by law to implement or to enforce the terms of settlement; and

2acknowledges that all such information passing between the Parties and the mediator is agreed to be without prejudice to any Party’s legal position, and may not be produced as evidence or disclosed to any judge, arbitrator or other decision-maker in any legal or other formal process, except where otherwise disclosable in law.

12.7Before the commencement of mediation, the Parties to the mediation will obtain an undertaking in writing by the mediator that the mediator agrees that where a Party privately discloses to the mediator any information in confidence, before, during or after the mediation, the mediator will not disclose that information to any other Person, without the consent of the Party disclosing it, unless required by law to make disclosure.

12.8The Parties will not call the mediator as a witness, nor require the mediator to produce in evidence any records or notes relating to the mediation, in any litigation, arbitration or other formal process arising from or in connection with their dispute and the mediation; nor will the mediator act or agree to act as a witness, expert, arbitrator or consultant in any such process.

12.9In the event that the Parties settle the dispute, disagreement or deadlock, or any part thereof, in a settlement agreement, then that settlement agreement shall be a final and binding settlement of the dispute, disagreement or deadlock, or such part thereof, as applicable.

12.10The mediation of the dispute shall terminate when:

1the mediator advises the Parties in writing that they believe that there are no reasonable prospects of settlement in the mediation; or

2the Parties conclude a written settlement agreement, provided that they agree to continue the mediation in the event of any part of the dispute that remains unsettled after the conclusion of the settlement agreement.

12.11All costs incurred during mediation shall be borne by the Parties equally.

12.12In the event that a dispute, disagreement or deadlock is not resolved as envisaged in the sub-clauses supra, it will be submitted to a referee, as unanimously agreed upon by the Parties. Failing agreement between the Parties to unanimously appoint such referee within 5 (five) business days after the decision cannot be reached, a referee shall be nominated by the chairman or acting chairman of any Bar Council or Law Society, or its successors in title, through the instruction of any Party. Such person shall be an advocate or attorney with at least 10 (ten) years’ experience in this field of the law.

12.13Every Party shall be entitled to appear personally or by a single agent, duly appointed, but without any legal or other professional assistance before the referee, and the proceeding shall be conducted as informally as possible. The referee, in their discretion, shall determine the procedure to be followed.

12.14In the event of a referee deciding the matter in terms of this clause 12, the prevailing Party shall be entitled to recover their reasonable costs and expenses.

12.15The decision of the referee shall be final and binding on the Parties and no Party shall make such decision the subject of any legal proceedings, and such decision shall be deemed a decision of the Parties. The Parties further agree that the results of such dispute resolution may be entered into any court of competent jurisdiction in South Africa for the execution thereof.

12.16The provisions of this clause 12 constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party will be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions.

12.17The Parties agree that the written demand by a Party to the dispute in terms of this clause 12 is to be deemed a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act 68 of 1969.

12.18This clause 12 will continue to be binding on the Parties notwithstanding any termination or cancellation of this Agreement.

13. Assignment

13.1You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.

13.2We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Agreement.

14. Notices

14.1Each of the Parties chooses their respective addresses set forth in clause 14.2 below for the purposes of giving any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement.

14.2The Parties select as their respective *domicila citandi et executandi* the following physical addresses, and for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses as well as the following email addresses:

1Us:

2Physical address: 4 Francolin Drive, Franschhoek, 7690

3Email: phia@estateeze.co.za

4You:

> Your address and contact details as provided on the Application, which you warrant are current and correct at all times.

14.3We may change our *domicilium* to any other physical address or email address by updating this Agreement on the Application. You may change your *domicilium* to any other physical address or email address by updating your User Details on the Application, in accordance with this Agreement. Such change of *domicilium* will be effective 7 (seven) days after receipt of notice of the change of *domicilium*.

14.4All notices to be given in terms of this Agreement will be in writing and:

1if delivered by hand during normal business hours, be presumed to have been received on the date of delivery;

2if sent by email before 16h30 on a day, which is not a Saturday, Sunday or public holiday, be presumed to have been received on the date of successful transmission of the email; and any email sent after 16h30, or on a day which is not a business day, will be presumed to have been received on the following business day.

14.5Where any provision in this Agreement requires a Party to perform any act in writing, this requirement will only be satisfied if such performance is made in writing either by email or printed paper-based form.

14.6Notwithstanding the above, any notice actually received by a Party or deemed to be received by a Party, to whom such notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause 14.

15. Governing law and jurisdiction

15.1This Agreement and any disputes or claims arising out of or in connection with it, or its subject matter, or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of South Africa.

15.2The Parties irrevocably agree that the High Court of South Africa has exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

16. Data privacy and protection

16.1General

1We will act as Data Processor and the License Holder will act as Data Controller of Personal Information. The Data Controller will determine the purposes and means of the Processing of Personal Information and has the sole responsibility for its legality, reliability, integrity, accuracy and quality, subject to your and other Authorised Users’ responsibilities to provide relevant accurate data in terms of this Agreement.

2The Client shall own all rights, title and interest in and to all of the Client Data and the Authorised Users shall have the responsibility for the legality, reliability, integrity, accuracy and quality of Client Data.

3We will use reasonable measures to protect the security and integrity of the Client Data, but do not take responsibility for it. You indemnify and hold us harmless against any damages resulting from a data compromise or loss resulting from a security breach.

4You warrant and represent that:

5# you will comply with, and will ensure that your instructions for the Processing of Client Personal Information will comply

6# with all applicable laws;

7# you are authorised to disclose any Personal Information

8# which you disclose or otherwise provide to us and/or the License Holder, regarding persons other than yourself;

9# you will where necessary, and in accordance with applicable laws, obtain all necessary consents and rights and provide all necessary information and notices in order for:

10## you to disclose Personal Information to us and/or the License Holder;

11## us to Process the Personal Information for the purposes set out in this Agreement; and

12## the License Holder to disclose the Personal Information to: (a) their Associated Parties; (b) law enforcement agencies; (c) any other person in order to meet any legal obligations on them, including statutory or regulatory reporting; and

13## any other person who has a legal right to require disclosure of the information, including where the recipients of the Personal Information are outside the Republic of South Africa.

14To the extent that we Processes any Personal Information, the terms of applicable laws shall apply, and the Parties agree to comply with such terms.

15We maintain technical, physical, and administrative security measures designed to provide reasonable protection of your Personal Information against loss, misuse, unauthorised access, disclosure, and alteration. The security measures include firewalls, data encryption, physical access controls to our data centres, and information access authorisation controls.

16While we are dedicated to securing the Application, you are responsible for securing and maintaining the privacy of your password(s) and account/profile information and verifying that the Personal Information maintained about you, and others’ you provide, is accurate and current. We and where applicable, the License Holder, are not responsible for protecting any Personal Information that is shared with a third-party based on an account connection that you have authorised.

17We shall not be held liable for damages caused by your and/or a License Holder’s or any other Authorised User’s negligence.

18In the event of any loss or damage to Client Data, the Authorised Users’ sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by us.

19We may use Client Data to conduct anonymous analysis to improve the Application.

16.2Data Breach

1We shall notify you and/or the License Holder if we become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Information arising from any act. We will however not be held liable for a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Information, as using the Application is at your own risk.

16.3Return and deletion

1Upon the termination of your relationship with the License Holder, at your request, the License Holder will delete or return all Personal Information to you, unless we are or the License Holder is under a legal obligation to store that data or has another legitimate business reason for doing so.

17. Intellectual property

17.1You acknowledge and agree that we and/or our licensors own all Intellectual Property rights in and to the Application and the Documentation.

17.2All rights, title, ownership, benefit and interest in and to all Intellectual Property rights in the Application and Documentation remain our property, or the property of our licensor, as the case may be.

17.3All rights to the Intellectual Property in respect of the Application and the Documentation is reserved.

17.4Using the Application and Documentation does not give you, or any other Authorised User, ownership of, or rights to, or in, our or our licensor’s, Intellectual Property rights, whether registered or not.

17.5You are expressly prohibited from using the Application and Documentation unless you are empowered to do so in terms of this Agreement and an agreement between yourself and the relevant License Holder, you have been granted express written permission to do so, or you are otherwise permitted by law to do so.

17.6The exclusive right to authorise or prohibit the direct or indirect, temporary or permanent reproduction of our, or our licensor’s, Intellectual Property by any means and in any form, in whole or in part, and to make our, or our licensor’s, Intellectual Property available to the public, and to distribute any copyright protected material in the Application and Documentation, shall remain with us, subject to our licensor’s approval, where relevant.

17.7You may not use the Intellectual Property or any third-party trademarks that appear in the Application and Documentation, other than permitted by an express written licence from us, subject to our licensor’s approval, where relevant, or by law. In particular, you may not use the marks as meta-tags nor may you sponsor them in search engines. All goodwill in your legitimate use of the marks shall accrue to us.

17.8You are required to notify us immediately if you become aware of any infringement of our Intellectual Property and rights thereto.

17.9The Application and Documentation may incorporate technical and other protective measures designed to prevent unauthorised and/or illegal use thereof. You agree to the incorporation of any such measures in the Application and Documentation.

17.10If, in our reasonable opinion, the Application and Documentation are likely to become or do become the subject of a claim of infringement of a third party's Intellectual Property rights, we may elect to either:

1obtain the right for you to continue using the Application and Documentation, as permitted under this Agreement; or

2modify or replace the infringing part of the Application and Documentation so as to avoid the infringement or alleged infringement, without materially reducing the functionality or performance of the Application and Documentation.

17.11In the circumstances per clause 17.10 above, you must:

1promptly notify us of any claim or threatened claim concerning the use of the Application and Documentation;

2not independently defend or respond to such claim or threatened claim; and

3co-operate with us in the defence of any such claim or threatened claim, subject to our payment of your third-party costs incurred in providing such co-operation.

17.12Clauses 17.10 and 17.11 above state your exclusive remedy in connection with any claim or threatened claim in relation to the Intellectual Property rights of a third party.

17.13‘Estateeze’ and ’Lifeeze’ are copyrighted trademarks and currently in the process of being registered the ‘Trusteeze’ compass is a registered trademark and you agree not to use the trademarks or any confusingly or deceptively similar trademark as an element of a domain name or sub-domain name, notwithstanding the fact that such domain name use and registration may be permitted in terms of any law. Upon request, you shall immediately cease to use such domain name and trademark and transfer it to us at your cost.

18. Waiver

18.1A waiver of any rights under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

18.2Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

19. Severance

19.1If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

20. Entire agreement

20.1This Agreement, and any documents referred to in it, constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between us relating to the subject matter they cover.

20.2Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

ANNEXURE “A”

POPI ACT POLICY

Our relationship with our potential and existing clients, including all Authorised Users, employees and partners is based on mutual integrity and trust and we are therefore, committed to maintaining this trust by protecting the privacy of Personal Information and data disclosed and received, from any data subject or data owner, at all times, and to the best of our ability. We are committed to safeguarding the privacy of our potential and existing clients’ visits to our website and their use or potential use of the Application. This Privacy Policy extends to all our Associated Parties.

The POPI Act describes ‘personal information’ as information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person. This includes name, contact details, nationality and identity number.

This policy complies with the principles contained in the Electronic Communications and Transaction Act 25 of 2002 (ECT Act), for electronically collecting personal information and the right to notify data subjects how we handle personal information given to us as per the POPI Act.

Please read the following Privacy Policy to understand how your information will be treated. This policy may be updated from time to time, so please check it regularly.

We subscribe to the goals and principles of data privacy and information security in line with relevant legislation and its business strategy and objectives. Data privacy and information security is an integral component of our information management structure.

We have an obligation to ensure appropriate security of all information technology systems (data, equipment and processes) and Personal Information that we own and/or control on behalf of other responsible parties, including Personal Information controlled by the License Holders. Further objectives of this policy are to set out a strategy to uphold the rights to privacy and confidentiality of a potential or existing client’s Personal Information and notifying the data subjects on how Personal Information, which has been collected via the website or in any other manner, will be handled.

The need for data privacy and information security is driven by the following:

– Legal, statutory, regulatory and contractual obligations;

– Risk assessment; and

– Operational principles, objectives and requirements for information systems that we have defined or developed.

Our POPI Act Policy applies to:

– Any joint ventures, and/or other business organisations that are owned or controlled by us, who receive or process Personal Information for, or on behalf of us;

– Our employees and independent contractors;

– Third-party agreements; and

– Personal information of external data subjects and data owners processed and/or stored by us.

Our POPI Act policy also includes the domains and frameworks of logical security, physical security and managerial security. Against the background of the aforementioned, it is therefore our focused intent to incorporate all the applicable principles and regulations in this policy and to monitor and enforce compliance to its prescriptions by way of establishing the necessary mandated management, reporting and disciplinary structures to facilitate these outcomes.

You are not required to provide any Personal Information on the public areas of our website or in the Application. However, you may choose to do so by completing the application forms on various sections of our website and while using the Application, including:

– Providing information to enable us to provide a service requested by you;

– Publication and newsletter subscriptions;

– Seminars or other events;

– To make contact with our partners and employees; and

– To make contact in respect of any questions you may have about this Privacy Policy.

Policy Application:

– Consent

> By submitting any personal details and/or using our website and/or the Application, you accept the terms and conditions of the policy and explicitly consent to the collection, use and disclosure of Personal Information in the manner described below whether the information relates to you personally or relates to a minor child and/or any other person. In the event that Personal Information will be used for any other purpose other than indicated in this Agreement, further consent will be obtained prior to the use of such information either by us or by the License Holder, as applicable.

– Security and Confidentiality

> We understand the value of your personal information and therefore will take all reasonable steps to protect your personal information from loss, misuse or unauthorised alteration, access or disclosure, as indicated in this Agreement. We use a variety of security technologies and procedures to assist in protecting your Personal Information from unauthorised access, use or disclosure. For example, any Personal Information provided to us is stored on computer servers with limited access that are located in controlled facilities.

– Use of Information collected

1) We may process, transfer and disclose your Personal Information for the purposes of:

> • Providing you with the services requested by you, and in the process of complying with the instructions you provided.

>

> • Assisting in improving our services, and providing you with information via mail, telephone or other means about our services. Note that, as permitted by the ECT Act, our website and the Application may use Personal Information collected to compile profiles for statistical purposes. No information contained in the profiles or statistics will be able to be linked to any specific user.

2) You consent that group entities may share your Personal Information with third parties for purposes of management and administration of our website.

3) In line with the POPI Act, all Personal Information collected on our website and on the Application will only be used for the purposes as agreed.

4) Personal information will only be retained for as long as necessary and for the purpose it was collected while staying in line with the regulations governing the duration that the information is kept.

– Data collection

1) In addition to the Personal Information you submit, we may collect information about your computer including, where available, your IP address, operating system and browser type for system administration.

2) We collect aggregated site-visitation statistics using cookies. We do not track individuals’ use of the website. When someone visits the site, a cookie is placed on the customer’s machine (if the customer accepts cookies) or is read if the customer has visited the site previously.

3) We do track your use of the Application to ensure that the Application is performing as required and to keep track of your usage of the Application.

– Sharing your data for service provision

1) We may share the Personal Information you submit or that we collect with third parties involved in the process of providing the products and services that you may request.

2) All our service providers are bound by the same contract which includes a clause to maintain the confidentiality and security of your Personal Information and are restricted in their use thereof as per this policy.

– Electronic Communications and Transactions Act (“ECT Act”)

> We subscribe to the principles, outlined in Section 51 of the ECT Act as well as all the principles outlined in the POPI Act, which govern your right to having your Personal Information kept private. We briefly outline these principles below:

1) We shall only collect, collate, process and store (“use”) your Personal Information with your written permission as set out in this policy, unless legally required to do so, and will only use such information for the lawful purpose for which it is required as set out in this policy.

2) We shall disclose in writing, upon request, the specific purpose for which we use, collect and store your Personal Information. The Application will also keep a record of the Personal Information that has been collected and the specific purpose for which the Personal Information has been used.

> We will not use your Personal Information for any purpose, other than that which we disclosed to you herein, unless you give us your express written permission to do so, or unless we are permitted/required to do so, by law.

– Accuracy of Personal Information

> In the event of any changes to your Personal Information, you are under an obligation to inform us and/or the License Holder, whichever is applicable, of the said changes within a reasonable period of time.

– Disclosure of Personal Information

> Your Personal Information will only be disclosed without your consent in the event that we are required by law, a regulatory body or by a court order to do so, or in the event that the disclosure of your Personal Information will be in the public interest. The disclosure will however only take place in accordance with the ECT Act as well as in accordance with the POPI Act.

– Third party links

> Our website and/or the Application, may contain links to third party websites. If you follow a link to any of these websites, please note that these websites have their own terms and privacy policies and that we do not accept any responsibility or liability for them. We are not responsible for any representations, information, warranties or content on any website of any third party, we do not exercise control over third parties’ privacy policies and you should refer to the policy of any such third party to see how they protect your privacy.

>

> You may also have followed a link which lead you to our website and/or the Application from another website. Please note that the website/s you used to get rerouted to our website and/or the Application, have their own terms and privacy policies and that we do not accept any responsibility or liability for them. We are not responsible for any representations, information, warranties or content on any website of any third party, we do not exercise control over third parties’ privacy policies and you should refer to the policy of any such third party to see how they protect your privacy.

– Changes to Policy

1) We reserve the right, in our sole and absolute discretion, to update, modify or amend (including without limitation, by the addition of new terms and conditions) this policy from time to time with or without notice or justification.

2) You therefore agree to review the policy whenever you visit the website or Application for any such change. Save as expressly provided to the contrary in this policy, the amended version of the policy shall supersede and replace all previous versions thereof.

CONTACT INFORMATION

Estateeze welcomes your comments regarding this Privacy Statement, please contact us by e-mail to phia@estateeze.co.za or postal mail to P.O. Box 564 Franschehoek, 7690

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<th><p>This Privacy Policy is available on Estateeze’s website at:</p>

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