Service Level Agreement — HTM LEDGR

This Service Level Agreement (the “SLA”) is issued by HTM Legacy (Pty) Ltd, a private company duly incorporated in accordance with the company laws of the Republic of South Africa under registration number 2021/423883/07, of Pretoria, South Africa (the “Supplier”, “we”), and forms part of, and is incorporated by reference into, our Terms of Service (the “Agreement”). It records the level of service the Supplier aspires to provide in operating HTM LEDGR (the “Services”). Words and expressions defined in the Agreement bear the same meanings in this SLA unless the context indicates otherwise.

Nothing in this SLA constitutes a warranty, guarantee, representation, or undertaking as to any level of availability, performance, or result, and this SLA does not create, and shall not be construed as creating, any right, remedy, credit, or cause of action additional to those expressly provided in the Agreement. Where any provision of this SLA is inconsistent with the disclaimers, limitations of liability, or indemnities set out in the Agreement, the Agreement prevails; and this SLA is at all times subject to clause 9 of the Agreement and to clause 7 below.

1. Scope, and what this SLA does not cover

This SLA addresses the general availability of the HTM LEDGR web application, the manner in which the Supplier communicates known outages and planned maintenance, the notice the Supplier gives in the ordinary operation of a subscription, and the support the Supplier aims to provide. It does not extend to, and the Supplier accepts no responsibility, obligation, or liability whatsoever in respect of, any of the following, each of which falls outside the Supplier’s undertaking under this SLA:

the accuracy, completeness, lawfulness, or fitness for any purpose of any figure, amount, line item, VAT treatment, client particular, banking detail, or other datum entered, selected, or approved by the Customer or any Authorized User, responsibility for which rests exclusively with the Customer in terms of clauses 1 and 5 of the Agreement;
the Customer’s own internet connectivity, bandwidth, hardware, operating system, browser, browser extensions, antivirus or endpoint software, network configuration, firewall, proxy, or corporate IT policy, and any interference any of them may occasion with the operation of the Services;
the performance, availability, security, conduct, pricing, or continued existence of any third party the Customer elects to deal with in connection with the Services, including without limitation the Customer’s own bank, its clients’ banks, its electronic mail provider or that of any recipient, and the Supplier’s payment gateway provider;
any period during which the Services are, or the Customer’s access to them is, lawfully suspended, restricted, or terminated in accordance with clause 8 of the Agreement or the sequence described in clause 2 of our Cancellation Policy, no such period constituting unavailability for any purpose of this SLA; and
any matter constituting force majeure within the meaning of clause 12 of the Agreement.

2. Availability

The Services are hosted upon infrastructure selected by the Supplier for its general reliability, and the Supplier aims for the Services to be available for the Customer’s use on a continuous basis. The Supplier does not, at present, warrant, represent, or commit to any specific numeric uptime percentage, and does not offer service credits, rebates, or any other form of compensation of any kind in respect of downtime, whether planned or unplanned. The Supplier makes no commitment, and accepts no liability, beyond the following:

the Supplier treats unplanned downtime as a priority matter and will take such steps as it considers reasonable in the circumstances to restore the Services;
where the Supplier is aware in advance that planned maintenance will affect availability, it will endeavour, where practicable, to schedule such maintenance during periods of lower anticipated usage; and
the Supplier may, at its sole discretion and at such time as it considers its infrastructure and monitoring capability to warrant it, adopt a numeric availability commitment, at which point this SLA will be amended to reflect it — no such commitment applies unless and until this SLA is so amended, and no statement made in any other medium, whether by a representative of the Supplier or otherwise, operates to create one.

3. Notice of outages and maintenance

Where the Supplier becomes aware of a service outage, or has scheduled maintenance reasonably expected to affect the Customer, the Supplier will make reasonable efforts, but gives no warranty and assumes no obligation, to communicate this through the following channels, used together where practicable:

an in-app notice, displayed to signed-in users of the Services; and
electronic mail, transmitted to the address recorded upon the account of each Organisation the Supplier considers materially affected.

In the case of planned maintenance, the Supplier will endeavour to provide reasonable advance notice. In the case of an unplanned outage, notice, by its nature, follows the Supplier’s own discovery of the matter and cannot precede it. No failure, delay, or omission to give notice under this clause shall, of itself, give rise to any liability on the part of the Supplier, nor constitute a breach of this SLA or of the Agreement.

4. Notice given in the ordinary operation of a subscription

Separately from clause 3, and so that the Customer is at no stage required to discover a change in its own position for itself, the Supplier operates automated, scheduled processes which give the Customer advance notice of every event in the ordinary lifecycle of a subscription that requires, or may prompt, the Customer to act. The substance of each such notice is governed by the policy identified against it, and is not restated here:

Before a renewal. Advance written notice of each impending renewal, stating the date, the plan, the amount that will be charged, and where to change plan, change billing cycle, or cancel — issued approximately 90 days ahead of the expiry of an annual fixed term and again shortly before that date, and ahead of each monthly renewal. Clause 7(g) of our Cancellation Policy states the periods, the manner of transmission, and the effect of non-receipt precisely.
Before data is deleted under a retention period. A first warning approximately 30 days, and a final warning approximately 7 days, before a document falls due for automatic deletion — and, as recorded in clause 6 of the Agreement, a document is not deleted at all unless the final warning has in fact been transmitted successfully. Clause 6 of the Agreement governs.
Before access is restricted. A grace period of 2 days following the expiry of a paid term or trial, during which the workspace continues to operate normally alongside a visible in-app reminder. Clause 2 of our Cancellation Policy governs, and records that this grace period constitutes the entirety of the notice given at that stage.
Before a price change takes effect. Reasonable advance notice, given together with the renewal notice above, so that the Customer may elect whether to renew at the varied price. Clause 7 of our Pricing Policy governs.
Upon a material change to this SLA, the Agreement, or any policy referenced in it. Flagged in-app and, where reasonably possible, by electronic mail, in the manner described in clause 13 of the Agreement.

Every notice contemplated by this clause 4 is transmitted to the electronic mail address for the time being recorded upon the Organisation’s account. The Customer’s attention is drawn to the fact that the maintenance of an accurate, current, and actively monitored address at that place is an obligation of the Customer’s, and to the consequences of a default in that obligation, which are set out in the panel at clause 7(g) of our Cancellation Policy, together with the rights of the Customer’s which neither that obligation nor those consequences may lawfully touch.

5. Support

Support is available by electronic mail and via our contact page, Monday to Saturday, from 8am to 7pm. The Supplier aims, but does not warrant, undertake, or guarantee, to respond to support enquiries within one business day, and treats matters affecting a Customer’s ability to access its account or data as a priority, without thereby assuming any binding obligation as to response time, resolution time, or outcome. Support is provided in the English language, in respect of the Services only, and does not extend to the Customer’s own equipment, network, or third-party software.

Support does not extend to, and shall under no circumstance be construed as constituting, tax, VAT, accounting, financial, or legal advice — see clause 1 of the Agreement, which the Customer acknowledges applies with equal force to anything said to it by any representative of the Supplier in the course of a support interaction — and the Customer should consult its own accountant or registered tax practitioner in respect of any such matter.

The Supplier may decline to provide support in respect of a request that is abusive, that is directed at a use of the Services prohibited by clause 5 of the Agreement, or that would require the Supplier to access an Organisation’s content otherwise than as reasonably necessary to resolve the matter raised.

6. Data protection, retention, and export

Full detail is set out in our Privacy Policy and clause 6 of the Agreement. In summary, and without limiting or extending those provisions: documents are retained for the period the Customer’s plan specifies; warnings are issued in advance of deletion in the manner described in clause 4 above; and export functionality is available on the terms, and subject always to the conditions, described in clause 6 of the Agreement — in particular the condition that the Organisation’s access remains in good standing.

The Supplier does not hold itself out as, and must not be relied upon as, the Customer’s sole or primary record of its own financial affairs. The retention of records for the periods prescribed by the Tax Administration Act 28 of 2011, the Value-Added Tax Act 89 of 1991, and the Companies Act 71 of 2008 is an obligation of the Customer’s alone, and the retention periods applicable under a subscription plan are not calculated by reference to, and do not purport to satisfy, any such statutory obligation. The Customer is accordingly urged to export and independently retain its own copies, at its own intervals, in accordance with clause 6 of the Agreement.

7. Limitation of liability, assumption of risk, and indemnity

This clause 7 contains the provisions by which the Supplier’s liability in respect of the availability of the Services is limited, by which certain risks are assumed by the Customer, and by which the Customer indemnifies the Supplier and others. It is the most important clause of this SLA, and for that reason it is set out in the panel below rather than in ordinary running text. The Customer is asked to read it in full before subscribing.

Your attention is specifically drawn to the following provisions, which limit the liability of the Supplier and of others, place a risk upon the Customer, and impose an obligation of indemnity upon the Customer — section 49 of the Consumer Protection Act 68 of 2008

In short, and in plain language: we work hard to keep HTM LEDGR up, but we do not promise a particular uptime figure and we do not pay compensation for downtime. If the app is unavailable when you need it, or an outage notice does not reach you, we are not liable for what that costs you. So please do not leave a deadline that matters — an invoice that has to go out today, a filing due tomorrow — dependent on us being available at one particular moment, and please keep your own exported copies of your records. If someone else brings a claim against us because you could not get into the app, you agree to cover us for it. Nothing here takes away a right that South African law does not permit us to take away — including your right to services performed to the standard people are generally entitled to expect — and sub-clause 7(e) says so in terms. The formal wording follows.

7(a) Acknowledgement as to the absence of an availability commitment. The Customer acknowledges, this being an acknowledgement of fact within the meaning of section 49(1)(d) of the Consumer Protection Act 68 of 2008 (the “CPA”), that: (i) the Supplier has made no representation, warranty, or commitment as to any numeric level of availability, and clause 2 above expressly records that none is given; (ii) no service credit, rebate, discount, or other compensation is offered or payable in respect of any period of unavailability, howsoever arising or however long; and (iii) the Customer has not been induced to subscribe by, and does not rely upon, any representation as to availability made otherwise than in this SLA as amended from time to time.
7(b) Assumption of risk as to time-critical reliance. The Customer assumes the risk of, and is solely responsible for, any consequence of its own election to rely upon the availability of the Services at any particular moment for the discharge of an obligation owed by it to a third party or to a regulatory authority — including, without limitation, the issuing of a quote, invoice, receipt, purchase order or statement by a given date, the despatch of a payment reminder, and the retrieval or export of a record required for a filing, an audit, or a dispute. The Customer is accordingly advised to allow adequate margin against any such deadline and, in respect of records it may need independently of the Services, to export and retain its own copies in accordance with clause 6 above.
7(c) Limitation of liability. In this clause 7 “Indemnified Person” means the Supplier, HTM Legacy (Pty) Ltd (registration number 2021/423883/07), each of their respective holding companies, subsidiaries, associated companies and affiliates, and each of the respective directors, officers, employees, contractors, sub-contractors, agents, service providers and professional advisers of any of them. Subject in every respect to sub-clause 7(e) below, no Indemnified Person shall be liable to the Customer, to any Authorized User, or to any person claiming through or under either of them, for any indirect, incidental, special, consequential, or punitive loss, or for any loss of profit, revenue, anticipated saving, data, goodwill, business, business opportunity, or reputation, arising out of or in connection with: any unavailability, interruption, degradation, latency, or error in the operation of the Services, whether planned or unplanned; any act, omission, outage, or failure of any third-party infrastructure, electronic mail, hosting, or payment provider; any failure, delay, or omission to give notice under clause 3 above; or any suspension or restriction of access effected in accordance with clause 1 above — in each case whether the claim be founded in contract, delict, or otherwise, and whether or not the Indemnified Person was advised of the possibility of such loss.
7(d) Indemnity. Subject in every respect to sub-clause 7(e) below, the Customer indemnifies each Indemnified Person against, and holds each of them harmless from, all claims, demands, actions, proceedings, losses, damages, liabilities, penalties, costs and expenses (including legal costs upon the attorney-and-own-client scale) of whatsoever nature brought or suffered by any third party — including any client of the Customer, any Authorized User, and any member, employee or officer of the Customer — arising out of or in connection with any matter referred to in sub-clause (c) above, or with the Customer’s reliance contemplated in sub-clause (b) above. This sub-clause survives the expiry or termination of the Agreement, howsoever occasioned, and is in addition to, and does not derogate from, clauses 9 and 10 of the Agreement, which continue to apply of their own force.
7(e) Savings: rights that cannot lawfully be excluded. Nothing in sub-clauses 7(a) to 7(d) above, or elsewhere in this SLA, excludes, limits, waives, deprives the Customer of, avoids, sets aside, or overrides, or purports to do any of those things in respect of: (i) any right conferred upon the Customer by the CPA, or any obligation or duty imposed upon the Supplier thereby, in a case to which that Act applies, such a provision being prohibited by section 51(1)(b)(i) and (ii) thereof; (ii) the Customer’s rights in terms of section 54(1) of the CPA, in a case to which that Act applies, to the timely performance and completion of services, to timely notice of any unavoidable delay in their performance, and to the performance of services in a manner and quality that persons are generally entitled to expect, nor the Customer’s entitlement in terms of section 54(2) thereof, where the Supplier fails to perform to that standard, to require the Supplier to remedy the defect in quality or to refund a reasonable portion of the price paid having regard to the extent of the failure; (iii) any liability of the Supplier, or of any person acting for or controlled by the Supplier, for loss directly or indirectly attributable to gross negligence, nor does anything herein purport to constitute an assumption of risk or liability by the Customer for such loss, such provisions being prohibited by section 51(1)(c)(i) and (ii) of the CPA; (iv) any liability for fraud or wilful misconduct; or (v) any other right, remedy, or protection conferred by South African law which cannot lawfully be excluded, limited, or waived by agreement, including at common law. To the extent that any provision of sub-clauses 7(a) to 7(d) contravenes section 51 of the CPA, it is void to that extent, and to that extent only, in terms of section 51(3) thereof, and shall be severed, the remainder of this panel and of this SLA continuing in full force and effect. Where the Customer is a juristic person to which the CPA does not apply by reason of section 5(2)(b) thereof, as to which see clause 7(e) of our Cancellation Policy, this sub-clause 7(e) operates only to the extent of such other rules of law, including the common law, as cannot be excluded by agreement.

The Supplier records that the fact, nature, and effect of sub-clauses 7(a) to 7(d) above are, by the conspicuous form and manner in which they are here presented, by the plain-language summary with which this panel opens, and by the publication of this SLA at a stable public address at which it is continuously accessible before, at, and after the time of subscription and from which it is incorporated by reference into the Terms of Service assented to upon registration, drawn to the attention of the Customer in a manner and form intended to satisfy sections 49(3), 49(4), and 49(5) of the CPA, read with section 22 thereof, in every case to which that Act applies.

8. Changes to this SLA

The Supplier may amend this SLA as its infrastructure, monitoring, and support capabilities change, including by adopting a numeric availability commitment once it considers itself able to measure and stand behind one. Material changes are flagged in the same manner as changes to the Agreement: in-app and, where reasonably possible, by electronic mail, as described in clause 13 thereof. The “Last updated” date above reflects the version currently in force, which applies to the exclusion of any prior version.

9. Governing law

This SLA is governed by, and shall be construed in accordance with, the laws of the Republic of South Africa, and clause 11 of the Agreement applies to it as though incorporated herein.

10. Contact us

Questions about this SLA: email support@htmledgr.com or use our contact page.