COMPLIANCE AGREEMENT AND FORM – BLACK MOUNTAIN COMPLEX 2023 ED
PROGRAMME PANELLISTS AND SME APPLICANTS
COMPLIANCE AGREEMENT AND FORM – BLACK MOUNTAIN COMPLEX 2023 ED PROGRAMME PANELLISTS AND SME APPLICANTS
1. INTERPRETATION
1.1. This Compliance Agreement and Form is entered into by each panel member on the Black Mountain Complex/ Phakamani Panel which will be conducting interviews for potential Black Mountain Complex Enterprise Development programmes. The terms of such are expressly stated herein to ensure compliance with relevant legislation and the principles of good corporate governance. This agreement shall apply to and govern the relationship between all relevant parties, in all activities regarding the enterprise development process and all activities which may follow as a result of participating in the panel. The Compliance Agreement and Form are hereinafter collectively referred to as the ‘agreement’.
1.2. The following terminology applies to the agreement:
1.2.1. “you” and “your” refers to you, the person on the panel;
1.2.2. “Phakamani Impact Capital / Phakamani Group”, “ourselves”, “we”, “our” and “us”, refers to each entity within the group of Phakamani Impact Capital Group and “Black Mountain Complex ” or “BMC” refers to all affiliates of and members of Black Mountain Complex (Pty) Ltd.
1.2.3. Phakamani Group / Phakamani Impact Capital refers to all entities which are owned and operated by Phakamani Impact Capital/ Phakamani Group. Black Mountain Complex (Pty) Ltd refers to all entities which are owned and operated by Black Mountain Complex (Pty) Ltd. This includes all entities which may be formed in the future and all platforms which will be created as a result.
1.2.4. “party”, “parties”, or “us”, refers to both you and us, or either you or us, as the context may indicate;
1.2.5. “Platforms” means all Phakamani Impact Capital / Phakamani Group and Black Mountain Complex (Pty) Ltd websites, mobile sites, mobile applications, online web applications, tools, software-based services, social media platforms, emails, or any other technology or mechanism you may use to interact with us; and
1.2.6. “Documentation” means documentation, tools and/or data that Phakamani Impact Capital / Phakamani Group and Black Mountain Complex (Pty) Ltd makes available for use by any party either on the platforms or otherwise.
1.3. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to same.
1.4. The person agreeing to and accepting this Agreement warrants that he/she is duly authorised to agree to the terms of this Agreement.
2. REGISTRATION TO USE OUR PLATFORMS
2.1. In order to access and use some of our Platforms you may be requested to–
2.1.1. Register and subscribe to use the Platform, where you will create, or we will allocate you, a username, password or other log-in (“User ID”) if the platform requires such
2.1.2. Login using your User ID if the platform requires such; and
2.1.3. Comply with the terms of the Agreement.
2.2. Your User ID is personal to you. You-
2.2.1. Must keep your User ID confidential and not disclose it to any third party or allow any third party to access or use the Platforms with your User ID;
2.2.2. Must inform us promptly if a third party gains access to your User ID;
2.2.3. Are responsible for all use of, or activities under your User ID;
2.2.4. Will not circumvent our User ID authentication procedures or systems; and
2.2.5. ARE LIABLE FOR ANY DAMAGE, LOSS OR COSTS SUSTAINED BY YOU, US OR BY ANY THIRD PARTY HOWSOEVER ARISING AS A RESULT OF ANY ACTIONS BY YOU OR ANY THIRD PARTY USING YOUR USER ID.
3. GRANT OF LICENSE
Subject to you abiding by the terms of this Agreement, we grant you a limited, personal, revocable, non-exclusive, non-sub-licensable, non-transferable license use of our Platform/s, strictly in accordance with the terms of this Agreement.
4. USE RESTRICTIONS
4.1. Any use of the Platforms not permitted by this Agreement is prohibited and, without limiting the generality of the afore going, you will not permit others to:
4.1.1. License, sub-license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platforms or make the Platforms available to any third party;
4.1.2. Copy, modify, reverse compile, reverse engineer or extract source codes from the Platforms, except to the extent that we may not prohibit you from doing so under applicable laws or regulations or you have our prior written consent to do so. Where applicable laws or regulations entitle you to reverse compile or extract source codes from the Platforms, you will first contact us to request the information you need;
4.1.3. Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Phakamani Impact Capital / Phakamani Group or Black Mountain Complex or its affiliates, partners, suppliers or the licensors of the Platforms;
4.1.4. Use the Platforms in breach of any applicable law or regulation;
4.1.5. Make any misrepresentation;
4.1.6. Post, upload or transmit any abusive content;
4.1.7. Commit fraud;
4.1.8. Propagate, distribute or transmit destructive code, whether or not damage is actually caused thereby;
4.1.9. Gather personal or commercial information including (without limitation) e-mail addresses and/or names from any Internet facilities, whether managed by us or by any third party, for commercial or any other purpose without the consent of the owners of such information;
4.1.10. Use robots, spiders, or any other device, be it automated or manual, to monitor or copy any Content from the Platform;
4.1.11. Use any of the Platform for commercial purposes other than those provided for hereunder, including (without limitation), reformat and display the results of a search; mirror our home page or result pages on your website. If you want to make commercial use of the Platform, you are required to enter into an agreement with us;
4.1.12. Access any of the Platform or any similar service of a third party or any network without authorisation or through hacking, password mining or any other means;
4.2. You may not make copies of the Documentation except as may be necessary for backup and archival purposes and you will destroy all Documentation when requested by us within 2 days of the request being issued.
4.3. Documentation, data, information, ideas and opinions expressed on the Platforms should not be regarded as professional advice or the official opinion of Phakamani Impact Capital / Phakamani Group and you are encouraged to consult professional advice before taking any course of action.
5. INTELLECTUAL PROPERTY
5.1. Except as expressly stated otherwise, this Agreement does not in any way grant, assign, transfer or license any party’s intellectual property rights to the other party.
5.2. You acknowledge that any and all intellectual property rights subsisting in or used in connection with the Platforms, including all Documentation, learning material, databases, analytical data, updates, upgrades, enhancements, new developments and improvements are and shall remain the sole property of Phakamani Impact Capital / Phakamani Group and Black Mountain Complex and any and all of its affiliates. You shall not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by Phakamani Impact Capital / Phakamani Group and Black Mountain Complex. The ownership expressly will always be vested with the owner.
5.3. In the event of new inventions, designs or processes evolve in performance of or as a result of this Agreement, you acknowledge that such inventions, designs or processes shall be the property of Phakamani Impact Capital / Phakamani Group, and Black Mountain Complex. unless otherwise agreed in writing by Phakamani Impact Capital / Phakamani Group and Black Mountain Complex.
5.4. You will retain ownership of any original content or data which you may upload, transmit or store when using our Platforms.
6. UPDATES TO PLATFORMS
6.1. We may from time to time provide enhancements or improvements to the features/functionality of the Platforms, which may include patches, bug fixes, updates, upgrades and other modifications (“Updates”).
6.2. Such Updates may occur automatically or manually. We do not guarantee that we will make any Updates available for any of the Platforms, or that such Updates will continue to support your device or system.
6.3. Updates may modify or delete certain features and/or functionalities of the Platforms. You agree that we have no obligation to
(i) provide any Updates, or
(ii) continue to provide or enable any particular features and/or functionalities of the Platforms to you.
6.4. You further agree that all Updates will be
(i) deemed to constitute an integral part of the Platforms, and
(ii) subject to the Agreement and conditions of this Agreement.
6.5. No Service maintenance is provided under this Agreement, except for Updates.
7. THIRD-PARTY SERVICES
7.1. The Platforms may display, include or make available third-party content (including data, information, software and other products or services) or provide links to third-party websites or services (“Third-Party Services”).
7.2. You acknowledge and agree that, we do not control or verify Third-Party Services and we shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.
7.3. Third-Party Services and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
7.4. When you acquire services or products from a third party through any of our Platforms, you understand and agree that-
7.4.1. we are not a party to the contract between you and the third party;
7.4.2. we are under no obligation to monitor the third party service used by you;
7.4.3. the third party will be responsible for all obligations under the contract including (without limitation) warranties or guarantees. We will not be liable to you for any reason under the contract with the third party;
7.4.4. you will evaluate the product or service and the applicable terms and conditions before acquiring the product or service.
7.5. If those third parties change, suspend or stop providing such services or products, we may similarly change, suspend or stop providing it to you. We may nevertheless endeavour to provide such a service in another way or by using another supplier or service provider.
7.6. We do not provide any technical support for any Third-Party Services.
7.7. We may use software that is subject to “open source” licenses (the “OpenSource Software”). Where we use such Open Source Software there may be provisions in the Open Source Software’s license that expressly override this Agreement, in which case such provisions shall prevail to the extent of any conflict with this Agreement.
8. PRIVACY NOTICE AND CONSENT IN TERMS OF DATA PROTECTION LAWS
8.1. For purposes of this clause 8“Data Protection Laws” means the Protection of personal information Act, 4 of 2013, Electronic Communication and Transaction Act, 25 of 2002 and Promotion of Access to Information Act, 2 of 2000, including any related regulations, guidance and codes of practice issued by the Information Regulator or relevant supervisory authority from time to time (and all terms used have the meaning given to them in these laws).
8.2. By accessing, and/or uploading and submitting personal information to any one or more of our Platforms you –
8.2.1. acknowledge that you have read, fully understood and accept Phakamani Impact Capital / Phakamani Group Privacy Notice which you can request from info@phakamanifunds.com. Similar notices may be
requested from Black Mountain Complex..
8.2.2. acknowledge that any access to a Platform other than to your own personal profile requires separate, prior and written agreement between yourself and the relevant Phakamani Impact Capital / Phakamani Group and Black Mountain Complex. and any of their entity/ies. Without any such agreement, you commit not to attempt to access or download or further process any personal information beyond that accessed within your personal profile;
8.2.3. voluntarily, specifically and unconditionally consent to the processing of each and every item of personal information uploaded by you to a Platform for any and all purposes related to the reason for the submission of your personal information to a Platform which may include, but is not limited to –
8.2.3.1. enabling Phakamani Impact Capital / Phakamani Group and Black Mountain Complex to provide you with the services offered by it;
8.2.3.2. enabling Phakamani Impact Capital / Phakamani Group and Black Mountain Complex to assess the information submitted by you for purposes of determining your eligibility for one of the programmes offered by Phakamani Impact Capital / Phakamani Group;
8.2.3.3. evaluating, developing or improving Phakamani Impact Capital / Phakamani Group services and
Black Mountain Complex;
8.2.3.4. as far as is legally permissible, keeping you informed about services offered by Phakamani Impact Capital / Phakamani Group and Black Mountain Complex; and/or
8.2.3.5. providing you with an efficient and smooth customer experience;
8.2.4. agree, in the absence of any written objection received from you, that this processing consent shall be indefinite and/or for the period otherwise required in terms of any applicable law;
8.2.5. confirm that the information submitted is accurate and complete and you commit to maintain and updating such information when necessary. Should this not be done, Phakamani Impact Capital / Phakamani Group and Black Mountain Complex shall not be liable for any loss, damage or injury suffered by you or any third party as a result of any inaccuracies or lack of completeness and you indemnify Phakamani Impact Capital / Phakamani Group against any such loss, damage or injury;
8.2.6. authorise Phakamani Impact Capital / Phakamani Group and Black Mountain Complex to which your information is initially and mainly submitted to share your personal information with any third party where it is in the legitimate interest of that Phakamani Impact Capital / Phakamani Group and Black Mountain Complex entity to do so and agree that such third parties may process your personal information for reasons related to the Phakamani Impact Capital / Phakamani Group and Black Mountain Complex including all current and future entity’s or the third party’s legitimate interests;
8.2.7. agree that Phakamani Impact Capital / Phakamani Group and Black Mountain Complex may not transfer your personal information cross-border subject to any/all applicable data protection legislation or requirements;
8.2.8. consent to Phakamani Impact Capital / Phakamani Group and Black Mountain Complex contacting and requesting information from any third party, credit bureau or business, to obtain any information relevant to your submission of personal information;
8.2.9. agree that the personal information submitted by you to any one or more of our Platforms shall be retained by Phakamani Impact Capital / Phakamani Group and Black Mountain Complex for the period necessary to achieve the purpose for which it was submitted or subsequently processed, which period is stipulated within Phakamani Impact Capital / Phakamani Group and Black Mountain Complex data retention policies and procedures. You are welcome to enquire about the retention period that will apply to your personal information by contacting Phakamani Impact Capital / Phakamani Group and Black Mountain Complex using the contact details above or those contained in our Privacy Notice.
8.2.10. commit to contacting Phakamani Impact Capital / Phakamani Group and Black Mountain Complex directly regarding any concern you may have with the processing of your personal information in terms hereof so that Phakamani Impact Capital / Phakamani Group and Black Mountain Complex can assist with addressing your concern, to the extent possible.
9. TERM AND TERMINATION
9.1. Phakamani Impact Capital / Phakamani Group and Black Mountain Complex may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
9.2. This Agreement will terminate immediately, without prior notice from Phakamani Impact Capital /Phakamani Group and Black Mountain Complex in the event that you fail to comply with any provision of this Agreement.
9.3. Upon termination of this Agreement, you shall cease all use of the Platforms and Documentation and upon Phakamani Impact Capital / Phakamani Group and Black Mountain Complex instructions delete all copies of the Platforms and Documentation within 2 days of receiving such request.
10. PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP’S LIABILITY AND BLACK MOUNTAIN COMPLEX
10.1. PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORMS, ITS USE OR OTHERWISE, EXCEPT TO THE EXTENT TO WHICH IT IS UNLAWFUL TO EXCLUDE SUCH LIABILITY UNDER APPLICABLE LAW.
10.2. NOTWITHSTANDING THE GENERALITY OF CLAUSE 10.1 ABOVE, PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX EXPRESSLY EXCLUDES LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE PLATFORMS, OR FOR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS.
10.3. YOU ACKNOWLEDGE THAT PLATFORMS IN GENERAL ARE NOT ERROR-FREE AND AGREE THAT THE EXISTENCE OF SUCH ERRORS SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
10.4. IN THE EVENT THAT YOU DISCOVER A MATERIAL ERROR WHICH SUBSTANTIALLY AFFECTS YOUR USE OF THE PLATFORMS, YOU MAY NOTIFIED BY PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX OF THE ERROR. PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX SHALL USE ALL REASONABLE ENDEAVOURS TO CORRECT, BY PATCH OR UPDATE (AT ITS OPTION), THAT PART OF THE PLATFORM WHICH IS FAULTY, PROVIDED THAT SUCH FAULT HAS NOT BEEN CAUSED BY ANY MODIFICATION, VARIATION OR ADDITION TO THE PLATFORM NOT PERFORMED BY PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX OR CAUSED BY YOUR INCORRECT USE, ABUSE OR CORRUPTION OF THE PLATFORM OR BY USE OF THE PLATFORMS WITH OTHER PRODUCTS OR SOFTWARE OR WITH EQUIPMENT WITH WHICH IT IS INCOMPATIBLE.
10.5. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND
BLACK MOUNTAIN COMPLEX DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PLATFORMS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
10.6. ALTHOUGH PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX DOES
NOT WARRANT THAT THE PLATFORMS SUPPLIED HEREUNDER SHALL BE FREE FROM ALL KNOWN VIRUSES, IT HAS USED COMMERCIALLY REASONABLE EFFORTS TO CHECK FOR THE MOST COMMONLY KNOWN VIRUSES, BUT YOU ARE SOLELY RESPONSIBLE FOR YOUR OWN VIRUS SCANNING AND PROTECTION.
10.7. ACCESS TO THE PLATFORMS MAY BE SUSPENDED TEMPORARILY AND WITHOUT NOTICE IN THE CASE OF SYSTEM FAILURE, MAINTENANCE OR REPAIR OR FOR REASONS BEYOND PHAKAMANI IMPACT
CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX CONTROL.
10.8. YOU AGREE TO INDEMNIFY AND HOLD PHAKAMANI IMPACT CAPITAL / PHAKAMANI GROUP AND BLACK MOUNTAIN COMPLEX AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (IF ANY) HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, DUE TO OR ARISING OUT OF YOUR: (A) USE OF THE PLATFORMS; (B) VIOLATION OF THIS AGREEMENT OR ANY LAW OR REGULATION; OR (C) VIOLATION OF ANY RIGHT OF A THIRD PARTY.
11. DISPUTE RESOLUTION
11.1. You agree that any dispute between us shall be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held in Johannesburg and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in and judgement upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.
11.2. The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.
11.3. The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.
11.4. You must send any notice or legal process relating to the Agreement, to the following address: 1 Philip Engelbrecht Drive, Meyersdal, Alberton 1448
12. RESERVATION OF RIGHTS
We reserve the right at any time and in our sole discretion to request that you remove all links or any particular link to our websites. You agree to immediately remove all links to our websites upon such request. We also reserve the right to amend this agreement at any time.
13. REMOVAL OF LINKS FROM OUR WEBSITES
13.1. If you find any link on our websites or any linked website objectionable for any reason or would like to provide any feedback, you may contact us about this by emailing us at info@phakamanifunds.com. We will contact Black Mountain Complex in any event that we need to regarding this agreement to do same. We will consider requests to remove links but will have no obligation to do so or to respond directly to you. If you transmit any ideas, information or materials to us through this website, you hereby grant us unrestricted consent to process them for any purpose, which shall be processed in accordance with our Privacy Notice.
13.2. Whilst we endeavour to ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we commit to ensuring that the website remains available or that the material on the website is kept up to date.
14. CONTENT LIABILITY
We shall have no responsibility or liability for any content appearing on your website. You agree to indemnify and defend us against all claims arising out of or based upon your website. No link(s) may appear on any page on your website or within any context containing content or materials that may be interpreted as libelous, obscene or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third-party rights.
15. AMENDMENTS TO THIS AGREEMENT
15.1. We reserve the right, in our sole discretion, to modify or replace this Agreement at any time. If a revision results in a material change, we will provide at least 30 calendar days’ notice prior to any new Agreement taking effect. What constitutes a material change will be determined at our sole discretion.
15.2. BY CONTINUING TO ACCESS OR USE OUR PLATFORMS AFTER ANY REVISIONS BECOME EFFECTIVE, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT. IF YOU DO NOT AGREE TO THE NEW AGREEMENT, YOU ARE NO LONGER AUTHORIZED TO USE THE PLATFORMS.
16. GENERAL TERMS
16.1. This Agreement is the sole record of the agreement between you and us, with neither party being bound by any express, tacit or implied representation or warranty not recorded in this Agreement.
16.2. No agreement shall be concluded or amendment to this Agreement effected merely by you sending a data message to us or using our Platforms.
16.3. We may cede, transfer or assign its rights and obligations under the Agreement to a third party without your consent.
16.4. You may not cede, transfer or assign your rights or obligations under the Agreement to a third party without our written and attested consent.
16.5. If any provision of the Agreement is or becomes unenforceable for any reason, then such provision will be treated as if it had not been included in the Agreement to the extent that it remains unenforceable and shall not affect the validity of the remaining provisions of the Agreement.
16.6. The Agreement is governed by and interpreted in accordance with the laws of the Republic of South Africa without giving effect to any principles of conflict of law, with you irrevocably consenting to the exclusive jurisdiction of the courts of South Africa, in respect of all proceedings arising out of or pursuant to the Agreement.
16.7. Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute waiver of any subsequent breach.
16.8. If you have any questions about this Agreement, please contact us via email at the following address: info@phakamanifunds.com
17. SIGNATURE AND ACCEPTANCE FOR PHAKAMANI PANEL MEMBERS:
By signing and affixing my details hereto I agree to all terms and conditions listed herein. I shall not use or transfer any information which is given in this agreement by any party as I expressly agree that ALL rights and information vests solely in Phakamani Impact Capital (Pty) Ltd, and/or Phakamani Group AND Black Mountain Complex AND the Panel Subjects. As I am not the head of any of these entities I recognise and understand that I do NOT have any property rights or rights to share or keep any information of any of Phakamani Impact Capital (Pty) Ltd, and/or Phakamani Group AND Black Mountain Complex AND the Panel Subjects.
I, the undersigned, with ID number do hereby accept that consultations have taken place and I am aware of the duties and responsibilities which are being requested of me.