Welcome to Obsidian Systems. These Terms and Conditions of Use (“Terms”) apply to and govern the use of the Obsidian Systems (Pty) Ltd’s website including the selection, coordination, arrangement, and “look and feel” thereof (the “Site”) and any products and services that may be provided by or registered with Obsidian Systems (Pty) Ltd through the Site by you (“Services”).

In these Terms, the terms “we” or “us” also refer to Obsidian Systems (Pty) Ltd, or Obsidian. By visiting Obsidian’s Site or using the Services, you accept these Terms and Obsidian’ Privacy Policy, which is incorporated into and a part of these Terms. If you have an account with Obsidian, any related terms that you agree to when you register or sign-up for a specific Service are also incorporated into and a part of these Terms. If you do not agree to these Terms and Privacy Policy, do not use the Site, request, or register for any Service. Obsidian reserves the right to modify or amend these Terms without notice. Your continued use of Obsidian’s Site or Services following the posting of changes to these Terms will mean you accept those changes.

1. License to use the site and services

Obsidian Systems grants you a non-exclusive, non-transferable, limited right to access, use and display the Site and Services, and the texts, images, articles, photographs, illustrations, audio graphics, graphs, video clips, and other materials (“Content”) thereon, for your personal informational use only, provided that you comply fully with these Terms. You may not modify, create, derivative works from, participate in the transfer or sale of, post on the web, or in any way exploit the Site or Services or any portion thereof for any public or commercial use without the express written permission of Obsidian Systems. You may download one copy of Content from the Site and Services for your personal information use only, provided that you maintain all copyright, attribution, and other notices contained in such Content, including without limitation, trademarks and service marks of Obsidian and its affiliates or the copyright holder, identified in the individual content’s copyright notice. You may not distribute, transmit, reproduce, publish, license, rewrite, create derivative works from, transfer, or sell any Content contained in this Site or Services without the express prior consent of the copyright owner. None of the material contained on the Site or Services may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, retransmitted in any form or by any means, including without limitation, electronic, mechanical, photo reproduction, recordation or otherwise, without the prior written consent of Obsidian Systems. Any images of artwork on the Site or Services are provided for use only in the context of the Site or Services and are subject to all of the limitations set forth herein. All rights not expressly granted herein are reserved to Obsidian Systems.

You shall not interfere or attempt to interfere with the operation of the Site or Services in any way through, any means, software, routine, or device including but not limited to, spamming, hacking, or uploading computer viruses, Trojan horses, time bombs, spyware, cancelbots, Easter eggs, or the means expressly prohibited by any provision of these Terms. You may not use any robot, spider, other automatic device, or manual process to monitor or copy Obsidian Systems’ Site, Services, or any content contained thereon or for any other purpose without Obsidian Systems’ prior express written permission. You may not take any action that imposes an unreasonable or disproportionately large load on Obsidian Systems’ infrastructure.

2. Ownership

The Content, Site, and Services are also protected by international intellectual property laws including, without limitation, copyright, trademark, trade services, moral rights, rights of privacy, and rights of publicity (“Intellectual Property Rights”). Obsidian Systems owns all Intellectual Property Rights in and to the Content, Site, and Services. You agree to abide by any and all copyright notices, information, or restrictions displayed on the Site and Services.

You acknowledge that you do not acquire any ownership rights by your permitted use of the Site, its Content, or any Services. You are responsible for complying with all applicable laws, rules, and regulations regarding your use of any Content. In the event of any permitted copying, redistribution, or publication of Content from the Site and Services, no changes in or deletion of author attribution, trademark, legend, or copyright notice shall be made. You may obtain more information on the copyrights, trademarks, and service marks of Obsidian Systems and its affiliates and Content owners by viewing the copyright and trademark notices posted on the Site.

3. Termination or change to site or services

Obsidian Systems shall have the right for any reason, in its sole discretion, to terminate, change, suspend, or discontinue, temporarily or permanently, any aspect of the Site or Services, including, but not limited to Content, features, and hours of availability, without further notice to you. Obsidian Systems may also impose limits on certain features and services, or restrict your access to parts or all of the Site or Services with or without further notice or liability. You agree that Obsidian Systems may terminate your use of this Site and Services, cancel your user registration, remove your Communications (as defined below), and/or exercise any other remedy available to it, if Obsidian Systems reasonably believes that you have violated or acted inconsistently with the letter or spirit of these Terms, or violated the rights of Obsidian Systems or any third party, or for any reason, with or without notice to you. You agree that Obsidian Systems will not be held liable to you or any third party as a result thereof.

4. Third Party Content and Websites

As further explained below, some of the Content on the Site is contributed by third parties. Such Content does not necessarily represent the views or opinions of Obsidian. Obsidian does not assume any responsibility for third-party Content Communications posted on the Site or Services. Obsidian does not represent or guarantee the truthfulness, accuracy, or reliability of any such Content. Any reliance upon content posted on the site or services by third parties is at your own risk.

The Site and some Services may contain links and pointers to third-party sites, resources, and sponsors. Links to and from the Site or Services to third-party sites do not constitute an endorsement by Obsidian or any of its subsidiaries and affiliates of any third party, its site, resources, or content. Obsidian cannot guarantee, represent, or warrant that the content contained in these sites is true, accurate, lawful, and/or inoffensive. Obsidian has no control over these sites or the content within them. Obsidian does not warrant that any third-party site will be free of viruses, or that they will not adversely impact your computer. You should direct any concerns regarding any external link to its site administrator or webmaster.

5. Obsidian’s rights to materials provided by users

Obsidian welcomes your participation on the Obsidian Site and Services. By sending messages to Obsidian, uploading or posting files, images, text, data, content, or other materials on the Site, or by otherwise providing information or communications to Obsidian (individually or collectively “Communications”) to or within the Site or Services, you grant to Obsidian a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use (including use for promotional and advertising purposes), copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit, create derivative works, and otherwise exploit such Communications and any ideas or original materials contained in these Communications for any purpose and in all media now known or hereafter developed. This grant includes the right to exploit any and all proprietary rights in such Communications including, without limitation, any and all Intellectual Property Rights in any relevant jurisdiction. You waive all rights you may have to inspect and/or approve any use by Obsidian Systems of any material or idea submitted by you in any Communications or to receive any compensation for such use. You waive all rights to any claim against Obsidian Systems for any alleged or actual infringements or misappropriation of any Intellectual Property Rights in connection with such Communications. You agree and understand that Obsidian Systems is under no obligation to use any Communications submitted by you on the Site or in any way.

You warrant that you own all Intellectual Property Rights in and to any Communications that you submit to Obsidian Systems or that you have sufficient rights in and to the Communications to grant to Obsidian Systems the above license.

6. No responsibility for user-transmitted material

You acknowledge that Communications to and from the Site and any Services are not confidential, and your Communications may be read or intercepted by others. You acknowledge that by submitting Communications to Obsidian Systems or the Site or Services, no confidential, fiduciary, contractually implied, or other relationship is created between you and Obsidian Systems, any Obsidian Systems’ affiliate, or subsidiary other than pursuant to these Terms. Obsidian Systems shall not be responsible for the payment of any money to any party in connection with Obsidian Systems’ use of Communications submitted by you to the Site.

Communications submitted by third parties to the Site or Services do not necessarily represent the view or opinions of Obsidian Systems. Obsidian Systems does not assume any responsibility for the consequences of Communications on, or any communications or results arising from the use of the Site or Services. Obsidian Systems does not represent or guarantee the truthfulness, accuracy, or reliability of any Communications posted by users; Obsidian Systems does not endorse any opinions expressed by such users.

7. Copyright Policy

Claims of Infringement:

Obsidian Systems respects the intellectual property of others and requires that you do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), available at the following website at http://www.copyright.gov/legislation/dmca.pdf, Obsidian Systems will respond expeditiously to notices of alleged copyright infringement that are duly reported to its Designated Copyright Agent identified in the notice below. Obsidian Systems will disable and/or terminate the accounts of users who are repeat infringers. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide Obsidian Systems’ Copyright Agent the following information:

DMCA Notice of Alleged Infringement (“Notice”):

• Identify the copyrighted work that you claim has been infringed, or, if multiple works are covered by this Notice, you may provide a representative list of the copyrighted works that you claim have been infringed.
• Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the website.
• Provide your mailing address, telephone number and, if available, email address.
• Include both of the following statements in the body of the Notice:
• “I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorised by the copyright owner, its agent, or the law (e.g., fair use).”
• “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorised to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
• Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to our Designated Copyright Agent:

L. van Staden
Obsidian Systems
Unit 5 Rand Ridge Office Park
2 Ateljee Street
Randpark Ridge, Johannesburg
South Africa
Email: marketing@obsidian.co.za

While Obsidian Systems considers all such notices seriously, you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that content or activity is infringing. Accordingly, if you are uncertain whether material infringes your copyrights (including whether use of copyrighted material may constitute fair use) you may wish to seek the advice of an attorney.

You agree that Obsidian Systems has the right, but not the obligation, to monitor your Communications on the Site or Services at any time, for any reason, in its sole discretion, to determine compliance with these Terms and any other rules, policies, or guidelines that Obsidian Systems may establish. Notwithstanding this right, Obsidian Systems does not and cannot review all materials posted to the Site or Services by users. Obsidian Systems reserves the right at all times to edit, disclose, refuse to post, request removal of, or remove any Communication, in whole or in part, in its sole discretion, including, without limitation, as may be necessary to comply with any law, regulation, government or agency request, or if, in Obsidian Systems sole discretion, such materials are objectionable or in violation of these Terms. Obsidian Systems has no liability or responsibility to users or any other person or entity for performance or nonperformance of the aforementioned screening activities.

8. User Conduct

Any of the following conditions constitutes a violation of these Terms and may result in the termination of your right to use the Site or Services without notice:

• Disrespecting the privacy or views of other users
• Using Obsidian Systems, the Site, or the Services for unlawful purposes or to promote any unlawful activities
• Impersonating or harassing another person, allowing another person to use your identification to post or view comments, or soliciting passwords or personal identifying information from other users
• Transmitting “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming”
• Submitting a Communication that infringes, misappropriates, or encourages infringement or misappropriation of the Intellectual Property Rights of others, or that is obscene, defamatory, harmful, abusive, threatening, or false
• Submitting a Communication that violates any law or regulation
• Posting irrelevant Communications or posting Communications in inappropriate categories.

9. Indemnification

You agree to indemnify, defend, and hold harmless Obsidian Systems, and all its officers, directors, owners, agents, employees, content providers, affiliates, licensors, and licensees (collectively, the “Indemnified Parties”) from and against any and all claims, actions, losses, damages, liabilities, and all fees, costs, and expenses of any kind related thereto (including, without limitation, attorneys’ fees and settlement amounts) incurred or suffered by the Indemnified Parties in connection with any claim arising out of, based upon, or resulting from: (i) your use of, or inability to use, the Site or Services, (ii) any negligence, willful misconduct, or any breach of these Terms, including, without limitation, breach of any warranty, covenant, or obligation hereunder by you. You agree to use counsel reasonably satisfactory to the Indemnified Parties to defend each indemnified claim or action. Obsidian Systems reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to the entry of any judgment or settle any claim, action, or other matter, without the prior written consent of Obsidian Systems.

10. Disclaimer of Warranties

Obsidian Systems does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed or distributed through the Content, Site, or Services. You acknowledge that any reliance upon any such opinion, advice, statement, memorandum, or information shall be at your sole risk. Obsidian Systems reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Site or Services.

The Site And Services, including all content, software, functions, materials, and information made available on or accessed through the site, is provided on an “as is” “as available” basis without representations or warranties of any kind whatsoever expressed or implied, including, without limitation, non-infringement, merchantability, or fitness for a particular purpose.

Neither obsidian systems nor its content providers warrant that the functions, features, or content contained in the site or services will be uninterrupted, accurate, or error free, that defects will be corrected, or that any other site or the server that makes it available is free of viruses or other harmful components. If your use of this Site or Services results in the need for servicing or replacing property, material, equipment, or data, Obsidian Systems is not responsible for those costs.

11. Limitation of Liability

Obsidian Systems disclaims any and all liability for the acts, omissions, and conduct of any users, advertisers, and/or sponsors on the Site or Services or otherwise related to your use of the Site and/or Services. Obsidian Systems is not responsible for the products, services, actions, or failure to act of any other third party in connection with or referenced on the Site or Services.

UNDER NO CIRCUMSTANCES SHALL OBSIDIAN SYSTEMS, ITS SUBSIDIARIES, AFFILIATES, OR CONTENT PROVIDERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THESE TERMS, THE CONTENT, THE SITE, OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF SUCH ENTITIES OR AN AUTHORISED REPRESENTATIVE THEREOF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Outside of South Africa

Obsidian Systems makes no representation that materials in the Site or Services, including products offered for sale on the Site and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations outside of South Africa.

Those who choose to access this Site or Services from other locations outside of South Africa do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

13. Survival

The provisions titled “Ownership,” “Termination or Change to Site or Services,” “Obsidian Systems’ Rights to Materials Provided by Users,” “No Responsibility for User Transmitted Material,” “Copyright Policy,” “User Conduct,” “Indemnification,” “Disclaimer of Warranties,” “Limitation of Liability, Exclusion of Damages,” “Non-South African Residents,” “Survival,” and “General Provisions” will survive termination of these Terms, together with all other terms and conditions that by their nature or context are intended to survive termination.

14. General Provisions

These Terms shall be governed by and construed in accordance with the laws of South Africa, without regard to conflicts of law provisions. Any claim, controversy, or dispute between the parties, their agents, employees, officers, directors, or affiliated agents will be resolved by an arbitrator. The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorneys’ fees, and shall share equally in the fees and expenses of the arbitrator. The arbitration will occur in South Africa. Nothing in this Section is intended, or to be construed to preclude any party from seeking injunctive relief to protect its Intellectual Property Rights. A request by a party to a court for such injunctive relief will not be deemed a waiver of the obligation to mediate. These Terms constitute the entire agreement between you and Obsidian Systems with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. No section of these Terms shall be held to be waived, modified, or deleted except by a written instrument signed by the parties hereto. No waiver by either you or Obsidian Systems of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Any cause of action you may have with respect to Obsidian Systems must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred.

Services Terms and Conditions

1. Products and Services
   • Hardware and Software if cash on delivery (C.O.D.)
   • Availability of stock is solely supplier dependent.
   • Projects, consulting, support, stand-by and maintenance will be invoiced at month end and has to be paid within 30 days from invoice.
   • All training invoices are payable before the commencement of the course.
   • Quotes are valid for 7 days from date of quotation unless otherwise specified.
   • Quotes do not include delivery unless by prior arrangement.
   • Quotes will be invalidated by variations of more than 3% in the Rand/Dollar Exchange rate.
   • Any quotation for software installed on the client’s equipment does not include the solving of compatibility or functional problems with the client’s hardware unless explicitly specified. Any additional time a consultant or technical support is requested to spend on solving this kind of problem will be billed above the agreed quotes at relevant support rates.
   • A full specification and scope of work must be completed before fixed scope pricing is final.
   • Clients are responsible for ensuring that all requirements of their financial department to facilitate prompt payment of invoices are met. This includes, but is not limited to, generating Purchase Order numbers and any other prerequisite payment. No extension for payment of invoices will be granted due to requirements of the client’s financial department that were not met.
   • All software and equipment remains the property of Obsidian Systems until such time as the full fee and VAT has been paid.
   • Interest will be charged on all accounts outstanding for longer than 20 days at FNB’s prevailing overdraft rate from time to time.
   • In the event of Obsidian Systems taking action against any purchaser in order to enforce these standard terms and conditions, the purchaser shall be liable for all legal costs calculated on an attorney and own client scale.
   • In the event of Obsidian Systems needing to allocate additional resources in respect of this contract as a result of the purchaser not cooperating reasonably with Obsidian Systems, the cost of such resources will be borne by the Purchaser.
   • In any situation where the client will be billed for time spent, the time billed will include any time spent by the employee of Obsidian to solve the problem. This includes but is not limited to all time spent on travel, delays experienced in performing the task for the client and time actually spent on the technical issues.
   • Any expense Obsidian Systems has to incur on behalf of the client will be charged in addition to the amount quoted. This includes but is not limited to an amount per car as per our standard support rates, any parking expense at the client’s premises or premises required to be visited on behalf of the client, and/or standard parts required to finish the job.
2. Disclaimer of Warranties
   • Warranties rest with the supplier and not with Obsidian Systems. Save as expressly set out in a contract between the client and Obsidian Systems, Obsidian Systems does not make any representation nor gives any warranties that which are implied or residual at common law are hereby expressly excluded.
3. Indemnification
   • Obsidian will not be held liable for the loss of any data. The client is responsible to ensure the existence and integrity of backups on a separate site or medium from the system to be worked on.
   • Although every effort will be made to complete the project on time, should the project be delayed due to circumstances beyond our control, we will not be liable for any costs as a result of such delay.
   • The client hereby indemnifies Obsidian Systems against any claims of any nature by any third party, including but not limited to claims for breach of copyright, license or patent pertaining to the data and content provided by the Client.
4. Copyright Policy
   • All rights of copyright in and to developed software shall vest in Obsidian Systems, together with all other items of intellectual property and any other rights in the work.
5. Non-solicitation
   • Should an Obsidian employee accept a job at a client within 6 months of the employee leaving Obsidian, the client is liable for a recruitment fee of 100% of the annual remuneration offered to the employee.
6. General Provisions
   • These Terms shall be governed by and construed in accordance with the laws of South Africa, without regard to conflicts of law provisions. Any claim, controversy, or dispute between the parties, their agents, employees, officers, directors, or affiliated agents will be resolved by arbitration. The arbitrator’s award will be final and binding and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorneys’ fees, and shall share equally in the fees and expenses of the arbitrator. The arbitration will occur in South Africa. Nothing in this Section is intended, or to be construed to preclude any party from seeking injunctive relief to protect its Intellectual Property Rights. A request by a party to a court for such injunctive relief will not be deemed a waiver of the obligation to mediate. These Terms constitute the entire agreement between you and Obsidian Systems with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. No section of these Terms shall be held to be waived, modified, or deleted except by a written instrument signed by the parties hereto. No waiver by either you or Obsidian Systems of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Any cause of action you may have with respect to Obsidian Systems must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred.