TOTM Service Agreement
This Service Agreement (the “Agreement”) is entered into as of the date of the Client’s acceptance (the “Effective Date”) by and between:
Fin-Link (Pty) Ltd (Registration Number: 2022 / 483287 / 07), a company incorporated in South Africa, with its registered address at 90 Peglyn Road, Glenhazel, Johannesburg, 2192, South Africa (hereinafter referred to as “Fin-Link” or “Provider“);
AND
The entity or individual (“Client“) accepting these terms and conditions by clicking “I Agree,” “Accept,” or a similar affirmation.
(Fin-Link and Client are hereinafter collectively referred to as the “Parties” and individually as a “Party“).
WHEREAS:
- Fin-Link provides a proprietary platform known as “TOTM” designed to enhance employee engagement with internal training content, facilitate access to process documentation, enable product learning, and identify knowledge gaps.
- Client wishes to subscribe to and use the TOTM platform for its internal business purposes, and Fin-Link agrees to provide such access and related services in accordance with the terms and conditions set forth herein.
1. Definitions
1.1. “Agreement” means this TOTM Service Agreement, including all schedules, annexures, and addenda.
1.2. “Client Content” means all data, information, text, images, videos, audio, or other material uploaded, posted, transmitted, or otherwise made available by the Client or its Users on the TOTM Platform.
1.3. “Effective Date” means the date on which the Client accepts this Agreement.
1.4. “Fees” means the subscription fees and any overage fees payable by the Client to Fin-Link for the Service.
1.5. “Prohibited Data” means any Personally Identifiable Information (PII), sensitive customer data, or customer contact information (including but not limited to names, email addresses, phone numbers, physical addresses, financial details, or health information of the Client’s customers or any third parties) that is prohibited from being uploaded to the TOTM Platform.
1.6. “Service” means the provision of access to and use of the TOTM Platform, as described in Section 2.
1.7. “TOTM Platform” or “Platform” means Fin-Link’s proprietary software-as-a-service (SaaS) platform, accessible via a web browser or other designated means, designed to facilitate internal training content engagement, process documentation access, product learning, and knowledge gap identification.
1.8. “Users” means the Client’s employees, contractors, or other authorized individuals who access and use the TOTM Platform under the Client’s subscription.
2. Service Description
2.1. Provision of Service: Fin-Link grants the Client a non-exclusive, non-transferable, revocable license to access and use the TOTM Platform solely for the Client’s internal business purposes during the Subscription Term, subject to the terms and conditions of this Agreement.
2.2. Core Functionalities of the TOTM Platform: The Service aims to address the following four core areas for the Client’s Users: a. System and Technology Usage: To help Users correctly use internal systems and technologies. b. Process Documentation Access: To enable Users to easily access and follow internal process documentation. c. Product Knowledge: To facilitate Users’ learning about the Client’s products. d. Knowledge Gap Identification: To identify areas where Users or training materials may have knowledge deficiencies.
2.3. Additional Professional Services: Fin-Link may offer additional professional services, such as the creation of Standard Operating Procedures (SOPs) or custom training material development. Such services are not included in the Subscription Fee for the TOTM Platform and will be subject to a separate, mutually agreed-upon Statement of Work (SOW), which will detail the scope, deliverables, timelines, and fees for those specific services.
3. Fees and Payment
3.1. Subscription Fee: The Client shall pay Fin-Link a monthly subscription fee of R2,500.00 (Two Thousand Five Hundred Rand) for access to the TOTM Platform for an annual license (“Annual Subscription Fee“) or R3,000.00 (Three Thousand Rand) for access to the TOTM Platform for a month-to-month license (“Month to Month Subscription Fee“).
3.1.1. Annual License Option: If the Client opts for an annual license, the Client agrees to a minimum commitment of twelve (12) months. Payment for an annual license can be made either: a. Monthly: Via twelve (12) consecutive monthly payments of the Subscription Fee; or b. Upfront: As a single lump-sum payment for the entire twelve (12) month period.
3.2. Included Usage: The Subscription Fee includes a base allowance of 1,000 (One Thousand) questions answered per month by the Client’s Users on the TOTM Platform.
3.3. Overage Fees: Any questions answered beyond the base allowance of 1,000 questions per month will be charged at an overage rate of R4.00 (Four Rand) per question.
3.4. Overage Notification: Fin-Link will monitor the Client’s question usage. If the Client’s question usage significantly exceeds the base allowance of 1,000 questions per month, Fin-Link will notify the Client to discuss the accrued overage fees and potential benefits of upgrading to a higher subscription tier.
3.5. Service Suspension: Fin-Link reserves the right to suspend the Client’s access to the Service if: a. any undisputed Overage Fees are not paid by their due date; or b. the Client’s question usage consistently and significantly exceeds the base allowance such that it fundamentally alters the nature of the Client’s subscription, and the Parties are unable to agree on an appropriate upgrade or revised terms.
3.6. Invoicing and Payment Terms: The Subscription Fee and any accrued Overage Fees will be invoiced monthly in advance for subscription and in arrears for overages. These are due within 14 days of the invoice date. All payments shall be made in South African Rand (ZAR) via debit order or EFT.
3.7. Late Payment: Without prejudice to any other rights or remedies, Fin-Link reserves the right to suspend the Service if any undisputed Fees are not paid by the due date. A late payment interest rate of 1.5% per month or the maximum rate permitted by law, whichever is lower, may be applied to overdue amounts.
3.8. Taxes: All Fees are exclusive of any applicable taxes (e.g., VAT), which shall be borne by the Client.
4. Client Responsibilities
4.1. Content Responsibility: The Client is solely responsible for all Client Content uploaded to the TOTM Platform, including its accuracy, legality, completeness, and compliance with all applicable laws and regulations.
4.2. Prohibited Data: The Client warrants that it will not upload any Prohibited Data to the TOTM Platform. Fin-Link is not responsible for any Prohibited Data uploaded by the Client.
4.3. Acceptable Use: The Client and its Users shall use the TOTM Platform in a lawful manner and in accordance with Fin-Link’s Acceptable Use Policy (if any, to be provided separately or included as an annexure). The Client shall not use the Service for any illegal, harmful, or fraudulent activities.
4.4. Account Security: The Client is responsible for maintaining the confidentiality of its account login information and for all activities that occur under its account.
4.5. Internal Promotion and Adoption: The Client acknowledges that the effectiveness of the Service in boosting engagement and identifying knowledge gaps is dependent on the Client’s internal efforts to promote, encourage, and manage the use of the TOTM Platform by its Users.
4.6. Cooperation: The Client agrees to cooperate reasonably with Fin-Link in connection with the provision of the Service.
5. Intellectual Property
5.1. Fin-Link IP: All rights, title, and interest in and to the TOTM Platform, including all software, technology, methodologies, trademarks, and intellectual property rights therein, are and shall remain the exclusive property of Fin-Link. This Agreement grants the Client only a limited, non-exclusive, non-transferable license to use the Service as expressly set forth herein.
5.2. Client Content IP: The Client retains all rights, title, and interest in and to its Client Content. The Client grants Fin-Link a limited, non-exclusive, royalty-free license to use, reproduce, modify, and display the Client Content solely for the purpose of providing and improving the Service to the Client.
6. Confidentiality
6.1. Confidential Information: “Confidential Information” means any non-public information disclosed by one Party (the “Disclosing Party“) to the other Party (the “Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
6.2. Obligation: The Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purpose of performing its obligations or exercising its rights under this Agreement and shall not disclose such Confidential Information to any third party without the Disclosing Party’s prior written consent. The Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure or unauthorized use of the Disclosing Party’s Confidential Information.
6.3. Exclusions: This obligation does not apply to information that: a. is or becomes publicly known through no fault of the Receiving Party; b. is lawfully received by the Receiving Party from a third party without restriction on disclosure; c. is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or d. is required to be disclosed by law, provided the Receiving Party gives prompt notice to the Disclosing Party.
7. Data Privacy
7.1. General: Fin-Link will process any personal data (e.g., User names, email addresses for login) in accordance with its Privacy Policy, which is available on Fin-Link’s website.
8. Disclaimers
8.1. No Guarantees: Fin-Link provides the TOTM Platform “as is” and “as available.” While TOTM is designed to facilitate employee engagement with training content, process documentation access, product learning, and knowledge gap identification, Fin-Link does not guarantee specific user adoption rates, learning outcomes, business results, or the complete elimination of knowledge gaps. The effectiveness of the Service is highly dependent on the Client’s internal content quality, promotion efforts, and organizational culture.
8.2. No Warranties: Fin-Link disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
9. Limitation of Liability
9.1. Exclusion of Damages: To the maximum extent permitted by law, in no event shall Fin-Link be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from: a. your access to or use of or inability to access or use the Service; b. any conduct or content of any third party on the Service; c. any content obtained from the Service; and d. unauthorized access, use, or alteration of your transmissions or content.
9.2. Cap on Liability: In no event shall Fin-Link’s aggregate liability for all claims relating to the Service exceed the total amount paid by the Client to Fin-Link under this Agreement during the twelve (12) months immediately preceding the date of the event giving rise to the claim.
10. Indemnification
10.1. The Client agrees to defend, indemnify, and hold harmless Fin-Link, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt, and expenses (including but not limited to attorney’s fees) arising from: a. the Client’s use of and access to the Service, including any data or content transmitted or received by the Client; b. the Client’s violation of any term of this Agreement, including without limitation the Client’s breach of any of the representations and warranties regarding Prohibited Data; c. the Client’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; d. the Client’s violation of any applicable law, rule, or regulation; or e. any other party’s access and use of the Service with the Client’s unique username, password, or other appropriate security code.
11. Term and Termination
11.1. Term: This Agreement shall commence on the Effective Date and shall continue for the Subscription Term chosen by the Client, which shall be either: a. Month-to-Month: Renewing automatically on a monthly basis unless terminated by either Party in accordance with Section 11.2; or b. Annual: For a minimum period of twelve (12) months, automatically renewing for subsequent twelve (12) month periods unless terminated by either Party in accordance with Section 11.2 or 11.3.
11.2. Termination for Convenience: Either Party may terminate this Agreement for convenience by providing the other Party with at least 30 days’ written notice prior to the end of the then-current monthly Subscription Term (for month-to-month plans) or prior to the end of the then-current annual Subscription Term (for annual plans).
11.3. Termination for Cause: Either Party may terminate this Agreement immediately upon written notice if the other Party commits a material breach of this Agreement and fails to cure such breach within 14 days after receiving written notice thereof.
11.4. Suspension/Termination by Fin-Link: Fin-Link may suspend or terminate the Client’s access to the Service immediately if: a. the Client fails to pay any undisputed Fees when due; b. the Client breaches the Prohibited Data clause (Section 4.2); or c. Fin-Link reasonably believes the Client’s use of the Service poses a security risk or is in violation of applicable law.
11.5. Effect of Termination: Upon termination, the Client’s right to access and use the Service shall immediately cease. The Client will be responsible for downloading its Client Content prior to the effective date of termination. Fin-Link will delete Client Content within a reasonable period after termination, subject to its data retention policies. Sections 1, 3 (for accrued fees), 5, 6, 8, 9, 10, 11.5, 12, and 13 shall survive any termination or expiration of this Agreement.
12. Governing Law and Dispute Resolution
12.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa, without regard to its conflict of law principles.
12.2. Dispute Resolution: a. Negotiation: The Parties agree to attempt to resolve any dispute arising out of or relating to this Agreement through good faith negotiations. b. Arbitration: If the Parties are unable to resolve a dispute through negotiation within 30 days, the dispute shall be submitted to and finally resolved by arbitration in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA), by an arbitrator appointed by AFSA. The arbitration shall be held in Johannesburg, South Africa in the English language. c. Jurisdiction: Notwithstanding the above, either Party may seek urgent interim relief from any court of competent jurisdiction.
13. General Provisions
13.1. Entire Agreement: This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral.
13.2. Amendments: No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.
13.3. Assignment: The Client may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Fin-Link. Fin-Link may assign this Agreement without the Client’s consent.
13.4. Severability: If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
13.5. Notices: All notices required or permitted under this Agreement shall be in writing and sent to the addresses specified at the beginning of this Agreement or such other address as a Party may designate in writing.
13.6. Force Majeure: Neither Party shall be liable for any delay or failure in performance due to causes beyond its reasonable control, including acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.