1.1 General
Unless otherwise indicated by the context, in this Agreement the following terms and expressions will bear the meanings assigned to them below.
1.2 Activate
Activate means the activation of Membership upon STSA's receipt of the Joining Fee and the first Annual Fee in cleared funds within the period contemplated in clause 4.1, being the event referred to in clause 3.1.4 upon which this Agreement comes into effect and Membership commences; and Activated and Activation have corresponding meanings.
1.3 Agreement
means the agreement constituted by the Membership Application Form and these General Terms and Conditions, as amended in writing from time to time.
1.4 Annual Fee
means the fee payable in advance by the Member to STSA annually to renew Membership, and which annual fee shall be stipulated by STSA from time to time.
1.5 Applicant
means the person or persons, whether natural or juristic, by or on whose behalf a Membership Application is submitted to STSA, whether through the Website or otherwise, and, where the Membership Application is made for a trust, a partnership or any other body that is not itself a person in law, means the trustees, partners or other persons who constitute or govern that body, in their capacities as such.
1.6 Certificate of Compliance
means a certificate issued by STSA in respect of a Product to the effect that the Product meets the specifications set forth in the certificate.
1.7 ECTA
means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time.
1.8 Effective Date
means the date on which this Agreement comes into effect in accordance with clause 3.1, being the date upon which Membership is Activated.
1.9 Joining Fee
means the fee payable by the Applicant to STSA upon the Applicant being admitted or readmitted to Membership, and which Joining Fee shall be stipulated by STSA from time to time.
1.10 Member
means an Applicant whose Membership Application has been approved by STSA in accordance with clause 3, and who has concluded this Agreement with STSA.
1.11 Membership
means the membership of the Member in STSA, in accordance with the class and categories of membership stipulated by the Member in the Membership Application Form.
1.12 Membership Application
means the application for Membership submitted by the Applicant in the form prescribed by STSA from time to time, which form incorporates or expressly references these General Terms and Conditions.
1.13 Party
Party means STSA or the Applicant or the Member, as the context requires, and Parties means all of them collectively.
1.14 POPIA
means the Protection of Personal Information Act No. 4 of 2013, as amended from time to time.
1.15 Product
means any product that contains STS functionality and which is sold, installed, commissioned, used or supplied by the Member.
1.16 STS
means the intellectual property owned by STSA or of which STSA is the custodian, which includes the STS Mark and the standard transfer specifications and related data and encryption, decryption, substitution and permutation tables, as well as any improvements, modifications or additions effected thereto, by any person, from time to time.
1.17 STS Mark
means STSA's proprietary trade mark, from time to time, which may be used to verify that a Product meets the standards contained in that mark's corresponding Certificate of Compliance.
1.18 STSA
means the Standard Transfer Specification Association NPC.
1.19 Submission
means the electronic act of the Applicant clicking the designated "Submit" control on the Website, by which the Applicant communicates its acceptance of these General Terms and Conditions to STSA.
1.20 Vending Key
means the random number associated with a supply group code number which is generated by a key management centre.
1.21 Website
means www.sts.org.za or any other website operated by STSA from time to time through which the Membership Application may be submitted.
With effect from the Effective Date and subject to the Member complying with the formalities prescribed by this Agreement, including the payment of the prescribed Joining Fee and Annual Fees, STSA hereby grants to the Member, which hereby accepts, for the duration of this Agreement:
2.1 a non-exclusive, non-transferable right to use the STS; and
2.2 upon receipt of a Certificate of Compliance in terms of clause 5, the right to make or have made, to use or permit the use of, to sell, offer to sell, let or otherwise dispose of, install, commission, use or supply Products bearing the STS Mark.
3.1 This Agreement will come into effect, and Membership will commence, only upon the cumulative occurrence of the following events:
3.1.1 the Applicant has properly completed and submitted the Membership Application and has provided the supporting documents required under clause 3.5;
3.1.2 STSA has, at its sole discretion, approved the Membership Application in writing;
3.1.3 STSA has countersigned the Membership Application Form reflecting the particulars submitted by the Applicant and has issued to the Applicant an invoice in respect of the Joining Fee and the first Annual Fee;
3.1.4 the Applicant has paid the Joining Fee and the first Annual Fee to STSA in cleared funds within the period contemplated in clause 4.1, whereupon Membership is Activated.
3.2 From the Effective Date, this Agreement will remain in force indefinitely, subject to termination in terms of this clause 3, clause 4.4 or clause 6.
3.3 This Agreement will terminate in accordance with its provisions or automatically on the termination of Membership in accordance with the provisions of the Memorandum of Incorporation of STSA.
3.4 If the Applicant fails to pay either the Joining Fee or the first Annual Fee in full in cleared funds within the period contemplated in clause 4.1, STSA's countersignature will lapse, no Membership Agreement will come into force, and STSA shall be entitled to treat the Membership Application as withdrawn. STSA will, within a reasonable period and without interest, refund to the Applicant any amounts actually received from the Applicant in respect of the Joining Fee and the first Annual Fee, or either of them.
3.5 As a requirement for a Membership Application to be successful, the Applicant must, when prompted to do so by STSA or through the Website, provide to STSA's satisfaction:
3.5.1 proof of the Applicant's identity and legal status; and
3.5.2 unless the Applicant is a single natural person who effects Submission personally, proof that the individual effecting Submission is duly authorised to act on the Applicant's behalf and bind the Applicant to this Agreement.
4. Joining Fee and Annual Fees
4.1 The Applicant will pay the Joining Fee and the first Annual Fee within 30 calendar days of the date of STSA's invoice, or such other period as STSA may indicate on that invoice.
4.2 The first Annual Fee is payable in accordance with clause 4.1. If STSA's invoice in clause 3.1.3 is issued after the commencement of a calendar year, the first Annual Fee will be pro rated, calculated in accordance with the remainder of that calendar year.
4.3 Membership is renewed annually and, save for the first Annual Fee which is payable in terms of clause 4.2, STSA will invoice the Member in respect of each Annual Fee in November of the year preceding the calendar year for which the Annual Fee is payable, and the Member will pay the Annual Fee to STSA by 31 January of the calendar year for which the Annual Fee is payable.
4.4 Membership will automatically terminate if the Joining Fee or any Annual Fee is not paid to STSA timeously in accordance with this clause 4. Non-payment of the Joining Fee or the First Annual Fee before Activation is dealt with in clause 3.4.
4.5 Membership is renewed annually on the General Terms and Conditions current as at the date of renewal, as published on the Website. STSA will give the Member not less than 30 days' notice of any material change before the next renewal.
4.6 Upon termination of Membership in terms of clause 4.4, readmission to Membership is subject to the former Member again complying with the requirements of clause 3.1 and agreeing to the General Terms and Conditions then current on the Website.
5. Certification of Compliance
5.1 Before selling, installing, commissioning, using or supplying any Product bearing the STS Mark, the Member must have been issued with a Certificate of Compliance in respect of that Product.
5.2 The Member shall not make any written, oral or other representation to any person that a Product or any part or aspect of the business of the Member complies with the STS unless a Certificate of Compliance has been issued by STSA in respect of that Product.
5.3 A Product will be regarded as valid for the purposes of this Agreement only if it was sold, installed, commissioned, used or supplied during a period of active Membership. A period of active Membership means any period during which the Member's Membership subsists, having been Activated in terms of clause 3 and not having terminated in terms of clause 4.4 or clause 6, and excludes any period after such termination and before any readmission to Membership in terms of clause 4.6.
5.4 A Product sold, installed, commissioned, used or supplied otherwise than during a period of active Membership will not be regarded as valid, notwithstanding any subsequent readmission to Membership. The Member shall not be entitled to apply or display the STS Mark on or in respect of that Product, and any Certificate of Compliance will be of no force or effect in respect of that dealing.
5.5 For the purposes of this clause 5, a reference to the Member includes a former Member in respect of any period after termination or lapse of its Membership and before any readmission, and a reference to a Product includes any item containing STS functionality sold, installed, commissioned, used or supplied by such former Member during that period.
6.1 If the Member breaches any provision of this Agreement and remains in breach for a period of one month after receipt of a notice from STSA calling upon it to remedy the breach, STSA will be entitled to terminate this Agreement upon expiry of the month in question, without prejudice to the accrued claims of STSA or to any claim that STSA may have for damages arising out of such breach.
6.2 Notwithstanding clause 6.1, in the circumstances contemplated in clauses 4.4 and 6.3, Membership will terminate without STSA placing the Member in breach.
6.3 STSA may terminate Membership with immediate effect on written notice to the Member if the Member becomes commercially insolvent or commits any act of insolvency, or if the Member is placed in provisional or final liquidation or receivership or is placed in business rescue, in each case, as that term is defined or interpreted in the Companies Act No. 71 of 2008 or the Insolvency Act No. 24 of 1936, as the case may be.
7. Consequences of Termination
7.1 Upon termination of Membership for any reason whatsoever, each Party will, within 7 calendar days of the date of termination, return to the other Party, or destroy or delete and certify in writing the destruction or deletion of, all items incorporating confidential information of the other Party and all copies thereof in its possession or under its control, save to the extent that the retention of such information is required by law.
7.2 In the event that Membership is terminated for any reason, clauses 5, 7, 8, 9, 10, 11, 13, 14, 15 and 16 of these General Terms and Conditions will survive such termination.
8. Warranties, Indemnities and Limitation of Liability
8.1 STSA makes no warranties of any kind regarding the accuracy, completeness, fitness for a particular purpose or intended use of any part of the STS.
8.2 The Member indemnifies STSA against all liability for any claim by any third party arising from any defect or other characteristic of any Product incorporating any part of the STS.
8.3 In the event that the Member submits a Product to an STSA-approved test house for testing for the purpose of obtaining a Certificate of Compliance in terms of clause 5, the Member indemnifies that test house against all liability for any claim by the Member or any third party arising from the testing or the Product.
8.4 STSA will not be liable to the Member, nor to any person claiming rights derived from the Member, for damages or other relief of any nature whatsoever, including special, incidental and consequential damages.
9. Intellectual Property Rights
9.1 STSA makes no warranty that the exercise of the rights granted in this Agreement or the use of the STS by the Member will not infringe any third-party intellectual property rights.
9.2 STSA does not and will not indemnify the Member against claims of any nature that may be made against the Member by any third party arising out of the use of any Product bearing the STS Mark.
9.3 The Member indemnifies and holds STSA harmless against all claims, expenses and costs attributable to any proceeding or claim made by any third party arising out of the use by the Member of the STS.
9.4 The Member agrees and acknowledges that it is required to make its own investigations and to take all necessary precautions to ensure that it does not infringe any third-party intellectual property rights in manufacturing or selling any Product.
9.5 Where a Member causes any improvements, modifications or additions to the STS owned by STSA, collectively the improvements, this Agreement serves as an automatic assignment, by the Member, of all intellectual property rights in the improvements to STSA, and will be effective as soon as any improvements are effected. The Member will not be entitled to any remuneration in respect of this assignment. Notwithstanding any such assignment, the Member will, if requested to do so, perform any act or sign any document required:
9.5.1 to confirm the vesting of such rights in STSA; or
9.5.2 to assist STSA in protecting or enforcing such rights.
10.1 Vending Keys issued by a key management centre will be issued only in an encrypted format determined or approved by STSA in its sole discretion, in accordance with STS 700-1 Conditions of Use of SGC.
10.2 Notwithstanding clause 10.1, the Member agrees and undertakes that it shall not in any way tamper with, alter, amend or destroy the encryption of any Vending Key, nor transmit any Vending Key to any person or entity if the encryption of that Vending Key has in any way been tampered with, altered, amended or destroyed.
11. Governing Law and Jurisdiction
11.1 This Agreement will be governed by and interpreted in accordance with the laws of the Republic of South Africa.
11.2 The Parties consent to the non-exclusive jurisdiction of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg or Durban, in respect of any dispute arising from or in connection with this Agreement.
12.1 The Member undertakes to abide by the provisions of the Memorandum of Incorporation of STSA, as amended from time to time.
12.2 The Member undertakes to adhere to the following standards of conduct:
12.2.1 to conduct itself in a manner which maintains the good reputation and orderly function of STSA in terms of its Memorandum of Incorporation and rules and policies made by STSA for the governance of its Members;
12.2.2 not to make public statements to the media or otherwise which would have the effect of damaging the good name and reputation of STSA;
12.2.3 not to neglect or wilfully refuse to comply with any rule or policy made by STSA relating to membership of STSA; and
12.2.4 not to commit, or incite or conspire with any other person to commit, any corrupt, fraudulent, dishonest or prohibited practice in relation to the industry, in any country.
13.1 The Member acknowledges that STSA is the custodian of the STS and that the STS is not in the public domain and accordingly contains and constitutes confidential information.
13.2 The Member shall not disclose the STS to any third party without the prior written consent of STSA, and undertakes that it will only disclose and reproduce the STS, or parts thereof, strictly in the manner and for the purpose specifically permitted by the rights afforded under clause 2, read in conjunction with any and all STSA directives dealing with the STS or otherwise as directed in writing by STSA, from time to time.
14. Protection of Personal Information
14.1 The STSA will process Personal Information, as defined in POPIA, submitted by or on behalf of the Applicant or Member and collected in the course of the Applicant's Membership, in accordance with the STSA Privacy Notice published on the Website from time to time.
14.2 The Applicant confirms that it has read and understood the STSA Privacy Notice current as at the date of Submission.
14.3 To the extent that the Applicant is itself a responsible party in relation to Personal Information of natural persons that it provides to STSA, the Applicant warrants that it has lawful grounds under POPIA for doing so.
14.4 The Applicant and the STSA will each, in relation to any Personal Information that it processes for purposes of this Agreement, take appropriate, reasonable technical and organisational measures as contemplated in section 19 of POPIA.
15. Electronic Submission, Signature and Formation of Agreement
15.1 The Applicant acknowledges and agrees that:
15.1.1 Submission of the Membership Application through the Website constitutes a valid data message for the purposes of sections 11 and 22 of ECTA, records the Applicant's agreement to the General Terms and Conditions, and constitutes the Applicant's offer to STSA to enter into the Membership Agreement on those General Terms and Conditions;
15.1.2 Submission, together with the electronic record of Submission comprising the date, time, internet protocol address and Authorised Representative's particulars captured by the Website, constitutes the Applicant's electronic signature for the purposes of section 13(3) of ECTA;
15.1.3 Prior to Submission, the Applicant was afforded an unobstructed opportunity to review these General Terms and Conditions in full;
15.1.4 Neither Submission, nor any automated acknowledgment by STSA of receipt of the Membership Application, constitutes approval of the Membership Application or conclusion of this Agreement;
15.1.5 This Agreement will be concluded only upon the cumulative occurrence of the events set out in clause 3.1.
15.1.6 STSA retains the sole discretion to approve or decline any Membership Application and is not obliged to provide reasons for any decision to decline an application.
15.2 The Applicant warrants that the individual effecting Submission is duly authorised by the Applicant to do so, and that all information captured in the Membership Application is true, accurate and complete.
15.3 STSA's countersignature applied electronically to the Membership Application Form constitutes STSA's acceptance of the Applicant's offer for the purposes of sections 13(3) and 22 of ECTA.
15.4 The countersigned Membership Application Form generated by STSA's systems, reflecting the particulars submitted by the Applicant together with the electronic-submission record contemplated in clause 15.1.2 and the countersignature of STSA, will constitute the executed Agreement between the Parties. For the purposes of section 14 of ECTA, the countersigned Membership Application Form constitutes the original of this Agreement, and each party may retain it in electronic form.
15.5 The Parties agree that the countersigned Membership Application Form and the Website submission records are data messages made by STSA in the ordinary course of its business as contemplated in section 15(4) of ECTA, and that STSA may produce them, or a copy, printout or extract certified to be correct by an officer in its service, in any legal proceedings. Neither Party will, in any proceedings between them, dispute the admissibility, authenticity or integrity of those records, save on the ground of fraud or manifest error.
16. Notices and Electronic Communications
16.1 Each Party chooses as its domicilium citandi et executandi the physical address allocated to it in Part 1 of the Membership Application Form, or such other physical address as that Party may notify to the other Party in writing from time to time.
16.2 Any notice required to be given in writing under this Agreement may validly be delivered by email to the email address of the recipient Party as set out in Part 1 of the Membership Application Form, or to such other email address as that Party may notify to the other in writing from time to time.
16.3 The Member must at all times have an Authorised Representative, and must notify STSA in writing within 10 calendar days of any change to the identity, capacity or email address of the Authorised Representative recorded in Part 1 of the Membership Application Form or last notified to STSA under this clause. STSA may require the Member to furnish proof that a replacement Authorised Representative is duly authorised to act on the Member's behalf, and the Member must furnish that proof within 10 calendar days of STSA's written request.
16.4 Until STSA receives a notice under clause 16.3, STSA is entitled to treat the person last recorded in Part 1 of the Membership Application Form, or last notified to STSA under clause 16.3, as the Member's Authorised Representative for all purposes under this Agreement, and a notice delivered to that person's email address is validly delivered notwithstanding that the person has ceased to hold that capacity or to be employed by or associated with the Member.
In the event that a Party, the affected Party, is unable to perform any obligation under this Agreement due to circumstances beyond the control of the affected Party, including the action, intervention or decree of any government, and such circumstances are not caused by fault, of any degree, on the part of the affected Party, then the affected Party will be absolved from performing that obligation for as long as the circumstances prevail or, if performance of the obligation is or becomes impossible, the affected Party will be entitled to terminate this Agreement on written notice to the other Party.
18.1 This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes all prior agreements, representations and understandings between them in respect of that subject matter.
18.2 No amendment, variation or waiver of any provision of this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of both Parties, or, in the case of amendment of the General Terms and Conditions applicable on renewal, in accordance with clause 4.5, which, for the avoidance of doubt, may be effected by means contemplated in clause 15.
18.3 No indulgence, leniency or extension of time granted by STSA to the Member shall constitute a waiver of any of STSA's rights under this Agreement and, accordingly, STSA shall not be precluded, as a consequence of having granted such indulgence, leniency or extension, from exercising any rights against the Member which may have arisen in the past or which might arise in the future.
18.4 If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
18.5 The Applicant acknowledges that, where any inconsistency exists between the auto-populated Membership Application Form and the information captured by the Website at Submission, the information captured by the Website at Submission will prevail.
