1. DEFINITIONS
1.1. In this agreement, the following words mean:
1.1.1. API. An application programming interface.
1.1.2. Authorised Users. Those individuals who are authorised by the Customer to use the Services.
1.1.3. Customer. The customer described in the Information Schedule.
1.1.4. Customer Information. The information inputted by the Customer, an Authorised User, or Finch (on the Customer’s behalf), for the purpose of using the Services or facilitating the Customer’s use of the Services, including the data provided by Finch to the Customer in an Optional Service Report, which information may include Personal Information.
1.1.5. Commencement Date. As set out in the Information Schedule.
1.1.6. Confidential Information. All information/data, of any nature (including Customer Information), of either the Customer, or Finch (“Disclosing Party”) that is obtained or learned by or disclosed to the other (“Receiving Party”), whether orally, electronically, in writing, by inspection of tangible objects, or in any other medium, 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. Confidential Information includes IP proprietary to the Services and/or a third party in respect of which Finch has rights of ownership/use/possession.
1.1.7. Finch. Finch Technologies Proprietary Limited.
1.1.8. Information Schedule. The information schedule on the front page of this.
1.1.9. Initiation Fee. The once-off, non-refundable initiation fee, as set out in Annexure A, payable by the Customer to Finch prior on or before the Commencement Date.
1.1.10. IP. All intellectual property rights in and to the Software and the Services, including the object code and source code to the Software, and all patents, copyright, trademarks, logos, style, name, slogans, designs, models, methodologies, inventions, know-how, trade/business secrets and any other intellectual property used or held, present or future, by Finch (whether registered or unregistered, applications for, or rights to obtain or use), including all other data and proprietary information owned by Finch and with which may be collated and processed in order to render the Services.
1.1.11. Loss. Any loss, damages, liabilities, costs (including legal costs and experts’ fees), claims, charges, expenses, payments or penalties, including any consequential losses suffered by the Customer.
1.1.12. Optional Services. The verification, analytical and reporting services, set out in Annexure A, available for purchase by the Customer from time to time, and “Optional Service” means any one of them.
1.1.13. Optional Service Fee. The pay-per-use fee, as set out in Annexure A, payable by the Customer to Finch in respect of each Optional Service Request, subject to escalation in accordance with clause 13.1.
1.1.14. Optional Service Report. The verification, analytical, reporting or other data obtained by Finch for the Customer pursuant to fulfilment by Finch of an Optional Service Request.
1.1.15. Optional Service Request. An API call from the Customer, requesting the provision of an Optional Service from Finch.
1.1.16. Personal Information. Personal information as defined in POPI.
1.1.17. POPI. The Protection of Personal Information Act, No. 4 of 2013.
1.1.18. Reporting Module. The reporting dashboard made available by Finch to the Customer via the Software.
1.1.19. Services. The provision of access to and use of the Software, including User Acceptance Testing (UAT) access as detailed in Annexure A, on a subscription basis, and the provision of related Optional Services on a pay-per-use basis, as more fully set out in this agreement.
1.1.20. Signature Date. The date upon which the last of the named parties to this agreement signs this agreement.
1.1.21. Software. The online software application provided by Finch as part of the Services, which software application is hosted and accessible available via the internet as software as a service (and includes all related software, applications, application programming interfaces, documentation, upgrades maintenance releases and bug fixes).
1.1.22. Subscription Fee. The monthly subscription fee, as set out in Annexure A, payable by the Customer to Finch monthly, in arrears, for the duration of this agreement, subject to escalation in accordance with clause 13.1.
1.1.23. Support Services Policy. Finch’s policy stipulating the terms and conditions relating to support offered by Finch in respect of the Services, which policy is available on request and may be updated from time to time.
1.1.24. Term. As set out in the Information Schedule.
1.2. A reference to:
1.2.1. “ordinary business hours” means the hours between 08h00 and 17h00 SAST on a business day;
1.2.2. a “business day” means a day which is not a Saturday, Sunday or a public holiday in the Republic of South Africa;
1.2.3. a “person” includes a natural person, juristic person, trust, organisation, partnership, joint venture, syndicate, or any other association;
1.2.4. an enactment is to that enactment as at the Signature Date as amended and includes any subordinate legislation made from time to time under such enactment;
1.2.5. the words “include”, “including” and “in particular” are by way of example only and shall not limit the generality of any preceding words;
1.2.6. any other agreement or document shall be to such agreement or document as amended;
1.2.7. the words “other” and “otherwise” shall be interpreted as widely as possible and will not be limited by any preceding words; and
1.2.8. a number of days shall exclude the first day and include the last day. If the last day is not a business day, the last day shall be the next business day.
2. INTRODUCTION
2.1. Finch has developed the Software, which it makes available to customers as a Service.
2.2. The Customer wishes to use the Services in order to automate its client onboarding process.
2.3. Finch has agreed to provide the Services to the Customer, on the terms and conditions set out in this agreement.
3. THE SERVICES
3.1. Finch grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term.
3.2. Finch shall provide the Services to the Customer during the Term:
3.2.1. by making the Software available to the Customer in exchange for the Subscription Fee; and
3.2.2. by providing the Optional Services to the Customer from time to time, in exchange for payment of the relevant Optional Service Fee.
3.3. The Services will be activated and the Software will be accessible to the Customer on the Commencement Date, provided the Customer has paid the Initiation Fee. UAT access, as detailed in Annexure A, is included in the Services, whether already activated by date of signature of this Agreement or not.
3.4. Finch shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days a week except for:
3.4.1. planned maintenance carried out during the decided maintenance window;
3.4.2. unscheduled maintenance for unforeseen reasons from time to time.
3.5. Where possible, Finch will endeavour to inform the Customer in advance where the Services will be unavailable.
3.6. During ordinary business hours, Finch will provide the Customer with:
3.6.1. its standard customer support services, in accordance with its Support Services Policy;
3.6.2. technical support and maintenance for the Software; and
3.6.3. access to a technical account manager, to assist the Customer in resolving technical issues.
3.7. An Optional Service Request will be deemed to have been accepted once the Customer’s API has successfully communicated a request to Finch’s API and has not sent back an error response.
3.8. On completion of an Optional Service Request, an Optional Service Report shall either be (i) hosted by Finch for the Customer; or (ii) transmitted to a cloud instance set up by Finch on the Customer’s behalf; or (ii) transmitted to the Customer’s own cloud instance.
3.9. The Reporting Module shall list, by date and by type, all Optional Service Requests made by the Customer, categorised as completed or outstanding, and whether such Optional Service Request was successful or whether it failed.
4. FEES
4.1. In consideration for the Services the Customer shall pay Finch:
4.1.1. the monthly Subscription Fee; and
4.1.2. the Optional Service Fee, in respect of each Optional Service Request.
4.2. The Company shall submit invoices to the Customer on a monthly basis, for Subscription Fees and Optional Service Fees accrued and due to it in respect of the previous month, by the 15th day of each month. Where value-added tax is applicable, the Company will also furnish the Customer with the necessary tax invoice. The Customer shall pay the invoiced amount(s) within 30 days of receipt of an invoice from the Company.
4.3. All amounts payable by the Customer to the Company in terms of this agreement shall be paid by way of electronic funds transfer, free of deduction, set-off or bank charges, into Finch’s nominated bank account as detailed on the invoice.
4.4 Finch Technologies reserves the right to adjust its pricing, on reasonable notice, to reflect increased costs imposed by third-party suppliers or regulatory bodies. This includes, but is not limited to, changes in government fees, bank charges, verification service pricing, or compliance costs that are beyond Finch Technologies’ control and directly impacts the cost of the delivery of services to the client. Finch Technologies commits to communicating such changes to the client timeously where possible, unless immediate implementation is required by law or regulation.
5. FINCH OBLIGATIONS
5.1. Finch undertakes that the Services shall be performed with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance caused by use of the Services contrary to Finch’s instructions, or modification or alteration of the Services by any party other than Finch or Finch’s duly authorised contractors or agents.
5.2. If the Services do not conform with the undertaking in clause 5.1, Finch will use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Customer with an alternative means of accomplishing the desired performance.
5.3. Despite the above undertakings, Finch does not warrant that the Customer’s use of the Services will be uninterrupted or error-free and Finch is not responsible for any delays, delivery failures, or any other Loss resulting from the transfer of data over communications networks and facilities.
5.4. Finch warrants that it has and will maintain all necessary licenses, consents and permissions necessary for the performance of its obligations under this agreement.
6. CUSTOMER OBLIGATIONS
6.1. The Customer acknowledges that the Services are only accessible via an internet enabled computer or mobile device and the Customer warrants that its device/s are equipped with the necessary network infrastructure, internet access and power supply.
6.2. The Customer is responsible for:
6.2.1. ensuring the accuracy of all Customer Information supplied to Finch;
6.2.2. all activity occurring under its account on the Software; and
6.2.3. its Authorised Users’ interactions with the Services.
6.3. The Customer shall:
6.3.1. provide Finch with all necessary co-operation in relation to this agreement and all necessary access to such information as may be required by Finch in order to provide the Services; and
6.3.2. comply with all applicable laws and regulations in connection with its use of the Services.
6.4. The Customer shall ensure the security of all login details issued to it by Finch from time to time and shall maintain a written, up to date list of current Authorised Users.
6.5. The Customer shall promptly notify Finch of any unauthorized use of the Customer’s account, or any other act or omission that would constitute a breach or violation of this agreement. A breach of any of the terms of this agreement may result in an inability to access or use the Services.
7. DISCLAIMER
7.1. The Services are provided “as is” and use of the Services is at the Customer’s sole risk. Finch disclaims liability for any damages that the Services may cause to the Customer or any other person (whether through malware, defects in the Software, Optional Service Reports, or otherwise).
7.2. Finch will not be liable for any Loss arising out of or otherwise connected to the unauthorised use of the Customer’s account (unless such unauthorised use is attributable to the gross negligence or wilful misconduct of Finch) and the Customer hereby indemnifies Finch against any Loss that it may suffer in this regard.
8. THE SOFTWARE
8.1. Only Finch shall have the right to make amendments to the Software’s layout, contents and online management. Any unauthorised modification or attempts to modify the Software is prohibited.
8.2. The Customer shall not interfere with or disrupt the Software or any third-party services or networks linked thereto, including knowingly or unknowingly transmitting any virus onto the Software.
8.3. Updates to the Software will take place remotely. The Customer’s continued use of the Software after such updates will constitute its acceptance of the changes.
8.4. Finch will notify the Customer of any updates which shall cause significant changes to the Services.
9. INTELLECTUAL PROPERTY
9.1. Finch owns all right, title and interest in and to (i) the IP (and any and all patent, copyright, trade secrets and other intellectual property rights therein), (ii) all feedback provided to Finch by the Customer, and (iii) all transactional, performance, derivative data and metadata generated in connection with the Services (including all derivatives or modifications to the Customer Information), and the Customer shall not acquire any rights in and to same.
9.2. Finch’s trademarks and trade names, as well as third party trademarks, logos and service marks used in conjunction with the Services, may not be copied, imitated, or used, in whole or in part, without Finch’s prior written consent.
10. CONFIDENTIAL INFORMATION
10.1. Other than as set out in this agreement, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than performance or enforcement of this agreement without the Disclosing Party’s prior written consent.
10.2. The Receiving Party shall protect the Disclosing Party’s Confidential Information using the same standard of care that it applies to its own proprietary, secret or confidential information and that the Confidential Information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.
10.3. The Receiving Party’s confidentiality obligations in this clause 10 shall not apply to information that:
10.3.1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
10.3.2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
10.3.3. was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
10.3.4. is received from a third party without breach of any obligation owed to the Disclosing Party.
10.4. If Receiving Party is compelled by law to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, if Disclosing Party wishes to contest the disclosure.
11. PRIVACY AND PERSONAL INFORMATION
11.1. The Customer owns all right, title and interest in and to Customer Information.
11.2. The Customer grants to Finch all necessary rights to store, use, reproduce, modify, create derivative works from, distribute, perform, transmit and display Customer Information in an anonymized or aggregated form that does not identify individual persons or organizations perpetually, in order to compile statistics regarding use of the Services and/or the Optional Services to generally develop and improve Finch’s service offering. The Customer hereby grants to Finch a worldwide, perpetual and irrevocable license to store, use, transmit and display the Customer Information in order to develop, provide and improve the Services, including the right for Finch to grant equivalent rights to its service providers that perform services that form part of or are otherwise used to perform the Services.
11.3. Upon termination of this agreement the Customer shall retain ownership of all Customer Information in the form in which it was originally provided to Finch.
11.4. Each party shall abide by all applicable privacy laws in connection with this agreement. The Parties acknowledge their respective obligations to comply with all applicable data protection laws, including the Protection of Personal Information Act, 4 of 2013 (“POPIA”). Each Party agrees to ensure that any personal information processed in connection with this Agreement is lawfully obtained, adequately protected, and used only for purposes that are explicitly consented to by the data subject or otherwise permitted by law. Where the Services provided under this Agreement involve processing personal information such as identity numbers, for example in connection with credit bureau or verification data accessed via the API, the Client acknowledges that such information may be regulated not only under POPIA, but also under applicable credit legislation. This includes the requirement, as determined by the National Credit Regulator (NCR), to ensure that each request is made for a valid, prescribed purpose, and that the Client selects and records such purpose as part of the API usage or service activation. The Client warrants that it has obtained all necessary and informed consents from data subjects to process their personal information for the specified purposes, and further indemnifies Finch Technologies against any loss or liability arising from non-compliance with POPIA or NCR requirements. Finch Technologies acts as an intermediary and may be required to retain audit trails, including prescribed purposes selected by the Client, in line with its own regulatory obligations.
11.5. Finch undertakes, as far as it is able, that it shall:
11.5.1. secure the integrity and confidentiality of any Personal Information in its possession or under its control by taking appropriate technical and organisational measures to protect the Personal Information against and prevent (a) loss of, damage to, or unauthorised destruction of Personal Information and (b) unlawful access to or processing of thereof (via disclosure, use or otherwise), having regard to generally accepted information security practices and procedures;
11.5.2. ensure that the Personal Information is only accessible to such personnel who need to have access to the Personal Information in order for Finch to provide the Services and/or as otherwise contemplated in this agreement; and
11.5.3. immediately notify the Customer in writing of any reasonably suspected unauthorised access to the Personal Information and any instances or abnormalities in relation to the accessing of and processing of the Personal Information.
11.6. In rendering the Services, Finch may process Personal Information, which includes a data subject’s name, address, telephone number, email address, identity number, employment history, financial information and/or other personally identifiable information.
11.7. The Customer consents to Finch processing the Personal Information, and hereby warrants that it has obtained the necessary consent from the relevant data subject in order for Finch to process such Personal Information. The Customer indemnifies Finch to the fullest extent permitted by law for its failure to obtain the requisite consent before (i) disclosing Personal Information to Finch, or (ii) instructing Finch to process any Personal Information.
11.8. Finch may delay performance of the Services where Finch, in its discretion, believes that the Customer is not fully compliant with the provisions of clause 11.7.
11.9. Finch will take reasonable steps to protect the Personal Information from loss, misuse, unauthorised access, disclosure, alteration and destruction. However, no internet transmission is ever fully secure or error-free and the Customer’s use of the Services is at the Customer’s own risk and Finch will not be liable for any loss misuse, unauthorised access, disclosure, alteration and destruction in this regard, unless occasioned due to Finch’s gross negligence or wilful misconduct.
11.10. Finch has implemented technology, policies and processes aimed at protecting the confidentiality, integrity and availability of the Personal Information. Finch will update and refine these measures on an ongoing basis. However, internet communications are inherently insecure unless they have been encrypted. The Customer’s communications may be routed through any number of countries before reaching Finch. Finch therefore assumes no responsibility or liability of any nature whatsoever for the interception or loss of Personal Information beyond its control.
11.11. Finch may store some information (commonly known as a “cookie”) on the Customer’s computer when the Customer visits its website or accesses the Software. This enables Finch to recognise the Customer during subsequent visits. The type of information gathered is non-personal, such as: (i) the IP address of the Customer’s computer/s, (ii) the date and time of the visit, (iii) which pages were browsed, and (iv) whether the pages have been delivered successfully. Apart from merely establishing basic connectivity and communications, Finch may also use this data in aggregate form to develop customised services – tailored to the Customer’s individual interests and needs and/or to otherwise improve Finch’s business and service-offering. Should the Customer choose to do so, it is possible (depending on the browser the Customer is using), to be prompted before accepting any cookies, or to prevent the Customer’s browser from accepting any cookies at all. However, this may cause certain features of Finch’s website and the Software not to be accessible.
11.12. By using the Services, the Customer grants Finch permission to send it messages regarding the Services, and otherwise for marketing and advertising purposes.
12. LIMITATION OF LIABILITY
12.1. Unless otherwise permitted by law, in no event shall Finch, its officers, directors, shareholders, subsidiaries, affiliates, employees and agents be liable for any indirect or consequential Loss arising out of the Customer’s use of the Services.
12.2. The Customer assumes total responsibility for its use of the Services by its Authorised Users. The maximum liability of Finch, its officers, directors, shareholders, subsidiaries, affiliates, employees and agents in respect of any claims which may arise in respect of the Services shall be limited to the total Subscription Fees paid to Finch by the Customer for the duration of the Term (and if such liability arises during any renewal period, the maximum liability shall be limited to an amount equal to the total Subscription Fees payable for such renewed term only).
13. TERM AND TERMINATION
13.1. Unless the Customer confirms in writing prior to expiry of the Term that it does not wish to renew this agreement, the agreement shall automatically renew for a successive term, on the same terms and conditions as the previous Term, subject to escalation as set out in Annexure A.
13.2. Termination of this agreement shall not affect any rights or liabilities of either party which accrued prior to termination.
13.3. Upon termination of this agreement, the Customer shall no longer be permitted to use or access the Software or the Services.
14. BREACH
If either party breaches this agreement and fails to remedy such breach within 14 days (or other reasonable period necessary in the circumstances) of delivery of written demand to do so, then the aggrieved party may, in addition to any other legally available remedy, cancel this agreement or claim specific performance, without prejudice to its right to claim damages.
15. FORCE MAJEURE
Finch shall not be liable to the Customer if it is prevented from or delayed in performing its obligations in terms of this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, strikes, lockouts or other industrial disputes, 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, infrastructure or machinery, fire, flood, storm, epidemic, pandemic or default of Finch’s subcontractors or service providers, provided that the Customer is notified of such an event and its expected duration.
16. DISPUTE RESOLUTION
16.1. If a dispute arises in connection with this agreement or its termination or invalidity, the parties shall use best efforts to settle the dispute by mediation.
16.2. Upon written notice from any party to another party (the “Dispute Notice”) the dispute shall be referred to a suitably qualified independent mediator. The parties shall agree the mediator’s identity in writing, within 7 days of delivery of the Dispute Notice. Failing agreement, the mediator shall be appointed by the Arbitration Foundation of South Africa (“AFSA”).
16.3. The mediation shall be held in Cape Town. The parties shall agree on the mediation procedure. Failing agreement on the mediation procedure within 14 days of delivery of the Dispute Notice, the mediation procedure shall be in accordance with the prevailing AFSA Rules for Mediation.
16.4. If a dispute is not settled by mediation within 30 days of delivery of the Dispute Notice, then the dispute shall be settled by arbitration.
16.5. The arbitrator shall be a suitably qualified independent person agreed in writing by the parties within 14 days of the lapse of the 30-day period contemplated in clause 16.4. Failing agreement, the arbitrator shall be appointed by the Registrar of AFSA upon request by any party.
16.6. The arbitration shall be held in Cape Town in accordance with the prevailing AFSA Rules for Commercial Arbitration. The AFSA Expedited Rules shall apply if the dispute would fall within the prevailing magistrates court jurisdiction.
16.7. The arbitrator shall set the date, time, and venue of the arbitration.
16.8. Any order or award made by the arbitrator shall be final and binding.
16.9. This clause 13 shall not prevent any party from seeking interim and/or urgent relief from a court of competent jurisdiction.
17. LEGAL ADDRESS AND NOTICES
17.1. Each of the parties chooses the addresses set out in the Information Schedule at which to receive notices and legal process in terms of this agreement (“Legal Address”), or as otherwise notified in writing.
17.2. Notices, to be valid, must be in writing, and may be given by e-mail.
17.3. Notices are deemed to have been received on the date of delivery by hand to a responsible person at, or transmission of the email to, the chosen Legal Address, during ordinary business hours. If delivery occurs outside of ordinary business hours, it shall be deemed to have been received at 08h00 SAST on the next business day.
17.4. A written notice actually received by a party shall be valid even if it was not delivered at its chosen Legal Address.
18. GENERAL PROVISIONS
18.1. Whole Agreement
18.1.1. Any amendment or cancellation of this agreement must be agreed between the parties in writing.
18.1.2. This agreement encompasses the whole and only agreement between the parties relating to its subject matter. No term, representation, or warranty is binding unless set out in this agreement.
18.1.3. No indulgence or waiver of any provision of this agreement shall be binding unless given by the relevant party in writing.
18.2. Interpretation
In this agreement:
18.2.1. clauses shall continue to operate after the termination of this agreement if necessitated by their nature;
18.2.2. if figures are referred to in numerals and in words and there is a conflict between the two, the words shall prevail;
18.2.3. its provisions shall not be interpreted against the party drafting it; and
18.2.4. if any provision becomes illegal, invalid or unenforceable, such provision shall be severed, to the extent of its illegality, invalidity or unenforceability, from the balance of this agreement.
19. COUNTERPARTS
This agreement may be signed electronically and in counterparts.