Terms of Service

Thank you for choosing ElmMac. Together with our Privacy Policy, these Terms of Service form a binding agreement between you and ElmMac and govern your access to and use of our websites, services and any software development or consulting engagement we provide. By accessing or using our services, you agree to be bound by these terms.

1. Definitions

• “Agreement” means these Terms, our Privacy Policy, and any operating rules or policies published on our website.
• “ElmMac”, “we” or “us” means ElmMac Pty Ltd, a South African company, together with its affiliates, directors, employees and contractors.
• “Service” means the websites, applications, software and online products provided by ElmMac.
• “Website” means elmmac.co.za and any subdomains and content delivered through them.
• “User”, “you” or “your” means the individual, company or organisation that uses our Website or Service. Users must be at least 13 years of age.
• “Authorized Users” means people you authorise to access the Service on your behalf.
• “Subscription” means an order for the Service placed through the Website or in a written agreement accepted by both parties.
• “SOW” means a Statement of Work, project brief, letter of intent or similar document executed between ElmMac and a Customer for professional services or deliverables.

2. Description of Service

ElmMac builds websites, mobile applications and custom software, and provides related digital, hosting and consulting services. Features and functionality are as described on our Website at the time of subscription and may change from time to time. By using any part of our Service, you confirm that you have the capacity and authority to enter into this Agreement on your own behalf or on behalf of the organisation you represent.

3. Account Terms

3.1 Access

You are responsible for the equipment, internet access and any third-party services required to enable your access to our Service.

3.2 Security

You are responsible for keeping your account credentials confidential and for any activity carried out under your account. ElmMac applies commercially reasonable, industry-standard measures to protect data from accidental loss and unauthorised access, but cannot guarantee absolute security.

4. Acceptable Use

You will use the Service lawfully and in line with this Agreement. You will not:

1. Attempt to interfere with, compromise or probe the security of the systems running the Service.
2. Impose an unreasonable load on our infrastructure.
3. Upload viruses, malware or other harmful code.
4. Allow anyone other than Authorized Users to access the Service.
5. Modify, copy, distribute, reverse engineer or create derivative works from the Service.
6. Use the Service to build a competing product or assist others in doing so.
7. Remove or alter any proprietary notices.

We may suspend access immediately for breaches of this section.

5. Service Period

Each Agreement starts on the Subscription Date and continues for the period specified in your Subscription. Paid plans automatically renew for successive periods of the same length unless either party gives notice of non-renewal. Free plans are month-to-month and may be terminated by either party at any time on notice.

6. Payment

1. Pricing. Fees are based on the pricing published on our Website at the Subscription Date. Pricing may be adjusted for inflation by the greater of 3% or CPI per year.
2. Authorisation. You authorise ElmMac to charge your chosen payment method for the Service.
3. Responsibility. You must keep your billing details current and notify us promptly of any changes.
4. Invoices & refunds. Card payments are due on invoice; EFT, ACH and similar payments are due within 30 days of the invoice unless otherwise agreed. All prepayments are non-refundable except as set out in our Refund Policy.
5. Late payments. Overdue amounts accrue interest at 1.5% per month, or the maximum permitted by law if lower, and we may recover reasonable collection costs.
6. Price changes. Material price changes will be notified in advance and will only apply from the next renewal period.
7. Cancellation. If the Agreement is terminated early under section 7, you remain responsible for fees accrued before the effective date of termination.

7. Cancellation and Termination

7.1 By you

You may cancel an account at any time via your account settings or by written notice.

7.2 Effect of termination

On termination, all rights granted to you under this Agreement end. You will return any Confidential Information in your possession and pay any outstanding fees. ElmMac will, on request, delete or destroy Customer Data held in the Service database, subject to backups retained under our normal procedures.

7.3 By ElmMac

ElmMac may terminate this Agreement immediately if you breach the Agreement, if termination is required to comply with law, or if amounts due are not paid on time.

8. Service Commitment and Support

Excluding scheduled maintenance, ElmMac will use commercially reasonable efforts to maintain 99.8% monthly availability of the hosted portions of the Service. Paid plans include email and in-product support, with target response times of 48 hours. Where any support is defective, our sole remedy is to re-perform the support as needed.

9. Intellectual Property

ElmMac retains all right, title and interest in the Service, our software, documentation, APIs, agents and other technology made available to you. Nothing in this Agreement transfers ownership of our intellectual property to you, except that on full payment for a custom development engagement, ownership of the agreed Deliverables transfers to the Customer, while ElmMac retains its pre-existing intellectual property used to create them under a perpetual, royalty-free licence to use in conjunction with the Deliverables.

10. Confidentiality

Each party will protect the other's confidential information with at least the same degree of care it uses for its own, and only use it for the purposes of this Agreement. Confidential information does not include information that is publicly available, independently developed, lawfully obtained from a third party, or required to be disclosed by law (subject to prompt notice where permitted).

11. Customer Data

11.1 Ownership

You retain ownership of any data, content or materials you submit through the Service (“Customer Data”).

11.2 Licence to ElmMac

You grant ElmMac a worldwide, non-exclusive, royalty-free licence during the Service Period to host, store, transmit and display Customer Data as necessary to provide the Service. ElmMac may use anonymised, aggregated data to improve its products and may list you as a customer (name and logo) on our Website unless you opt out.

12. Limitation of Liability

To the maximum extent permitted by law, neither party will be liable for indirect, incidental, special, consequential or punitive damages, including loss of profits, revenue, data or goodwill. Each party's total aggregate liability under this Agreement is limited to the fees paid by the Customer to ElmMac in the 12 months preceding the event giving rise to the claim. These limits do not apply to breaches of confidentiality, indemnification obligations or payment obligations.

13. Representations and Indemnity

Each party warrants that it has the authority to enter into this Agreement. You warrant that you own or have all necessary rights in Customer Data and any third-party content you provide. You agree to defend and indemnify ElmMac against claims arising from your use of the Service in breach of this Agreement or applicable law. ElmMac will defend you against third-party claims that the Service, used as permitted, infringes their intellectual property rights, and may modify, replace or terminate the affected Service to mitigate such claims.

14. Software Development and Consulting

The following additional terms apply to any SOW executed between ElmMac and a Customer for development or consulting services.

14.1 Payments

Invoices are payable within 15 days of receipt. Late payments accrue interest at 1.5% per month or the legal maximum if lower. ElmMac may suspend performance and retains rights in undelivered work until outstanding amounts are paid.

14.2 Acceptance

Customer has 7 days after delivery of any Service or Deliverable to test it against the acceptance criteria agreed in the SOW. If no notice of non-conformance is given in that period, the Service or Deliverable is deemed accepted.

14.3 Termination of an SOW

Either party may terminate an SOW on 60 days' written notice, or immediately for an uncured material breach after 30 days' notice. On termination, ElmMac is paid on a pro-rata basis for work performed up to the date of termination.

14.4 Non-solicitation

During the Agreement and for 12 months after termination, neither party will, without the other's written consent, directly or indirectly solicit, hire or engage personnel, contractors or advisors of the other party who were involved in performing the SOW.

14.5 Force majeure

Neither party is liable for delays or failures caused by events beyond its reasonable control, including natural disasters, strikes, war, civil unrest, terrorist action or government regulation. Payment obligations are not excused by force majeure.

14.6 Subcontracting

ElmMac may subcontract any part of the Services to its affiliates or qualified third parties, but remains responsible for delivery.

15. Miscellaneous

15.1 Governing law

This Agreement is governed by the laws of the Republic of South Africa. The parties submit to the exclusive jurisdiction of the South African courts in respect of any dispute arising under this Agreement, subject to either party's right to seek urgent or interim relief in any competent court.

15.2 Assignment

ElmMac may assign this Agreement, in whole or in part, to an affiliate or successor. You may not assign or transfer this Agreement without our prior written consent.

15.3 Notices

ElmMac may give notices to you electronically by email to the address on your account or by posting them on the Website. You may give legal notices to ElmMac by email to [email protected].

15.4 Severability and waiver

If any provision of this Agreement is found unenforceable, the remainder will continue in effect. Failure to enforce any right is not a waiver of that right.

15.5 Independent contractors

The parties are independent contractors. Nothing in this Agreement creates an employment, agency, partnership or joint venture relationship between them.

15.6 Entire agreement

This Agreement, together with the Privacy Policy and any executed SOW, constitutes the entire agreement between you and ElmMac in relation to its subject matter and supersedes any prior oral or written agreements between the parties.

Contact

Questions about these Terms of Service should be sent to [email protected].