1.1 Introduction

1.1. This end-user licence agreement (EULA) is an agreement between us as the vendor and you as the user (client). We are AephoriaLab (Pty) Ltd (we, us, or our). 

1.2. You may not access the assessment if you do not agree to this agreement. You agree to this agreement by:

• accessing an assessment or a report – such as by selecting a link to an assessment or report; or
• exercising any rights granted to you under this agreement.

Agreement

2.1. Definitions. In the agreement:

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);
agreement means this EULA between us and you;
assessment means the assessments available on the portal for a coach or client to purchase and for clients to complete by selecting a link provided to them;
authorised user means a coach or a user in the coach’s employ or with whom the coach is otherwise in a contractual relationship, who has assigned login credentials to or otherwise sanctioned to use the portal in the role of coach or coach assistant;
business day means any day within business hours, other than a Saturday, Sunday, or holiday (including a public or bank holiday) in South Africa;
client means you, a user who completes an assessment;
coach means the authorised user who we have accredited or are in the process of accrediting and that uses the portal for the purpose of issuing and marking assessments. The coach may be an individual with private clients or an in-house practitioner acting under the authority of an organisation and conducting assessments on employees within the organisation;
coach assistant means an authorised user that has not been accredited that the coach has given delegated access to the coach’s profile on the portal with limited functionality for the purpose of assisting the coach;
credentials mean a unique username and password that a coach has assigned to an authorised user;
day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;
EULA means this end-user licence agreement;
personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;
portal means the software in the form of the Coach Portal available at https://aim.aephoria.co.za/coachportal/login, and includes: 

• any media that you receive on it; 
• all upgrades, updates, or enhancements to the portal, and 
• the documentation. 

report means a report which a coach or coach assistant may access on the portal or send to their clients containing information about completed assessments;
services mean any Internet-based services we or related persons provide to you including assessments or reports generated based on a completed assessment ;
we, us, or our means AephoriaLab (Pty) Ltd (Registration no.: 2023/875633/07) the services provider that enters into this agreement and those related to it;
you, you, your means the party that enters into this agreement; and
your data means any data belonging to you (including information about an identifiable person) that:

• you provide to us; or
• we generate, process, or supply to you in providing the services;

but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors.

2.2. Interpretation. The following rules apply to the interpretation of the agreement:

• reference headings – clause and subclause headings are for reference only and do not affect interpretation;
• non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
• undefined words or phrases – all words or phrases that the agreement does not define have their ordinary English meaning;
• enactment references – references to any enactment include it as re-enacted, amended, or extended;
• person references – references to a person includes a natural and juristic person;
• party references – references to a party includes their successors or permitted assigns;
• number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
• no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
• time calculations – the parties will use GMT +2 to calculate any times.

3. Use of the services

3.1. Right to use. We grant you a perpetual, non-exclusive, and non-transferable licence to use the services, together with the documentation, on the terms of this agreement. 

3.2. Your use. You agree to use the services only for your own purposes and not to exploit them for your own commercial gain; and to use reasonable care and protection to prevent the unauthorised use, copying, publication, or dissemination of the services.

3.3. Acceptable use. You may not use the services in any way to: 

• harm another person’s use of them; or
• gain unauthorised access to any other services.

3.4. Security software. You should keep up-to-date security software on any systems used to access the services.

4. Technical support 

4.1. Our support. We will provide reasonable technical support to you.

4.2. Your responsibilities. You are responsible for getting and maintaining any equipment, software, infrastructure, or ancillary services necessary to connect to, access, or otherwise use the services. For example:

• equipment – such as modems, servers, or other hardware;
• software – such as operating systems;
• infrastructure – such as networking equipment or web servers; and
• ancillary services – such as agreements with ISPs for the provision of Internet access.

5. Privacy and data protection

5.1. Your data responsibility. You will be able to enter facts, figures, or other information using the services in electronic form. This is your data in terms of the definition above and you remain responsible for it. We are not responsible for any of your data processed through use of our services in any way. This means that:

• we are not responsible for whether processing any personal information contained in your data through the services complies with the relevant data protection laws; 
• we are not liable for any direct or indirect loss or damage suffered by you attributable to your failure to maintain the confidentiality of your assessments, reports, or other data we provide to you once have a copy of the data from the services in electronic or physical format; 
• although we will do our best to prevent unauthorised access to your data through all technical means available, we are not responsible for someone getting unauthorised access to your data through other means – such as hacking or any form of social engineering; 
• despite taking great care to program the portal to store your data reliably, we are not responsible for the integrity of your data because various other factors outside of the services influence this – including your computer equipment, your operating system, or the presence of malicious software on your system.

5.2.Your information. We may collect research information by monitoring the information you submit on using the services for the purpose of research and other purposes that we communicate to you.

5.3. Legal obligations. We take the protection of your data very seriously and will always do our best to protect it. We will

• comply with all relevant laws that affect your data, including data protection, retention, and destruction laws;
• have due regard to leading industry information security management codes of practice, where appropriate;
• have an individual to oversee compliance with relevant data protection laws;
• not sell, dispose of, or encumber any of your data or try to do any of those things;
• be able to identify any of your data separately from any other data under our control; and
• not disclose any personal information from your data, other than in terms of the agreement.

5.4. Responsible party. The coach remains the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws. 

5.5. Cross-border transfers. You consent to us transferring your data across a country border to enable us to comply with our obligations under this agreement.

5.6. Privacy policy. By agreeing to these terms, you confirm that you have read, understood and agree to be bound by the terms of our privacy policy at https://aephoriagroup.com/company-policies/.  

5.7. Records. You agree that our records are prima facie evidence of the services provided to you.

6. Intellectual property

6.1. Ownership. We or our third-party licensors own all proprietary rights in the portal and services, and we or they may take action if you violate those rights.

6.2. Our materials. Our materials include anything we have or acquire rights in and use to fulfil our obligations under this agreement.

6.3. Retention of rights. We own all intellectual property rights in our materials, and you may not use these rights without our permission. You do not acquire any ownership rights in our materials when we provide services to you.

6.4. Licence to use. We grant you a non-transferable, non-exclusive licence to use our intellectual property solely in connection with the services provided under this agreement.

6.5. Our trademarks. Our trademarks are our property, and you may not use them without our permission. All other trademarks are the property of their respective owners.

6.6. Restrictions. You may not:

• modify, use, or distribute to make derivative works; 
• rent, lease, loan, sell or assign; 
• decompile, reverse engineer, or copy; or 
• reproduce, transfer, or distribute  

our services.

6.7. Prosecution. All violations of proprietary rights or this agreement will be prosecuted to the fullest extent permissible under applicable law.

7. Disclaimer of warranties

7.1. Disclaimer. You use the services at your own risk to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied. We are not liable for any defect that you cause or that a third party causes.

7.2. Exclusion of liability. We are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes. 

8. Limitation of liability

8.1. Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to a you for direct damages for anything giving rise to any legal action will be an amount equal to R100.

8.2. Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the agreement.

8.3. Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

9. Breach and termination 

9.1. Right to terminate. If you breach this licence to use our services, we may immediately terminate it without notice to you.

9.2. Damages. If you breach this licence to use our services, we may claim damages from you equal to the licensing fees you would have paid to us had you paid us for a licence to use our services in the way that you did.

9.3. Penalties. If you breach this licence to use our services, you will pay us penalties equivalent to the licence fees a customer would have paid us for the period during which you were in breach.

9.4. Suspension. We may immediately suspend your right to use the services if:

• you attempt a denial of service attack on any of the services;
• you seek to hack or break any security mechanism on any of the services;
• we determine in our sole discretion that your use of the services poses a security threat to us, or to any other user of the services;
• you otherwise use the services in a way that disrupts or threatens the services;
• we receive notice, or we otherwise determine, in our sole discretion, that you may be using the services for any illegal purpose or in any way that breaches the law or infringes the rights of any third party; or
• we determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or infeasible for any legal or regulatory reason.

10. Termination

10.1. Termination for good cause. We may need to terminate the agreement immediately if:

• we discontinue or stop providing the services;
• believe providing the services could burden or pose a risk to us;
• have to terminate to comply with a law; or
• determine that providing the services has become impractical or infeasible.

10.2. Termination for convenience. We may, in our discretion, terminate this agreement, on reasonable written notice to you.

10.3. Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement, unless we are required to retain it by law or for legitimate business purposes.

11. Dispute resolution

11.1. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).

11.2. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree to appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

12. General

12.1. Governing law. South African law governs this agreement.

12.2. Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to either party’s right to institute any action in any other court having jurisdiction. 

12.3. Entire agreement. The agreement is the entire agreement between the parties on the subject.

12.4. Waiver. Any favour we may allow you will not affect any of our rights against you.

12.5. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it. 

12.6. Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.