Client Terms of Service

These Client Terms of Service (the “Client Terms”) is entered into between you, as the “Client”, and Bento Technologies (Pty) Ltd with the company registration number 2020/929401/07 and place of business at 15 Howe Street, Cape Town, 7925 (“MyBento”). MyBento operates as a Juristic Representative under FSP license number 23579, owned by Approach Administration (Pty) Ltd.

1. Definitions

“Additional Service Agreement” means terms and conditions that apply to a specific feature or offering of the Services and that are in addition to the terms and conditions of these Client Terms.

“Client” means the organisation on behalf of which a person enters into a commercial relationship with MyBento through the Commercial Terms, creates an administrator account (“Administrator”) for the configuration and administration of a MyBento employee benefits offering (the “Employer Account”), and accesses the Services, as described in section 2. By making use of, or procuring the Services, the Administrator warrants that he/she is authorised to act on behalf of the organisation.

“Client System” means any information technology system, application programming interfaces, or systems owned or operated by the Client from which Client Information is accessed by MyBento, either directly through systems integration or indirectly through secure data transfer to perform the Services.

“Client Information” means any data, content, materials, or information that the Client provides to or makes available to MyBento in connection with the Services, including but not limited to Employee Information, Client configuration settings, benefit selections, and any other information stored in or processed through the Client System or the Employer Account. For clarity, Client Information includes Employee Information, as well as Personal Information as defined in the Data Protection Legislation when such information relates to the Client’s employees, contractors, or other individuals whose data the Client manages through the Services.

“Commercial Terms” means a document that is entered into between the Client and MyBento, detailing the Services and related services that will be provided by MyBento, the applicable Fees associated with the Services, and any other mutually agreed upon transaction-specific terms and conditions. Each Commercial Terms agreement must be mutually agreed upon and will be governed by these Client Terms, and is deemed incorporated herein by this reference.

“Data Protection Legislation” means the Protection of Personal Information Act, 2013 (as amended) (“POPI Act”) and all associated codes of practice and other guidance issued by the relevant South African data protection authority.

“Effective Date” means the date on which the Client accepts the Client Terms of Service by creating a MyBento Employer Account, or signing the Commercial Terms whichever is applicable and/or occurs sooner.

“Employee Profile” means an individual account under the Client’s Employer Account which provides the User access to its employee specific information and benefits portfolio. This profile usually contains information relating to the User including but not limited to their name, surname, ID number, contact details, role, title, leave, salary package and benefits contributions (collectively referred to as “Employee Information”).

“Employee Benefits Provider” means a third-party service provider offering employee benefits, financial products, or services that can be accessed or procured through the Services, which may require a separate Additional Service Agreement between the Client and the specific provider, and / or an intermediary party.

“Fees” means Subscription Fees and/or Service Fees as stipulated under Clause 6.

“MyBento Ecosystem” means MyBento and its employees, contractors and third-party contractors which MyBento may leverage in exercising its rights and performing its obligations under these Client Terms.

“Operator” means third party contractors and/or other authorised third parties that are contracted to process the personal information of data subjects (Client’s employees) on behalf of MyBento, and as defined in the POPI Act.

“Regulator” means any regulatory body with responsibility for ensuring compliance with Data Protection Legislation.

“User” means an individual who the Client has authorised to access and use the Services, for whom the Client has purchased a subscription and whom the Client has invited to its Employer Account by granting the individual access to its own Employee Profile. Users include the Clients’ Administrators, employees and may also include authorised former employees who require continued access to and use of the Services for a particular time period.

“User Terms” means those terms and conditions that each User must agree to prior to using the Services and that are available at https://mybento.net/end-user-terms-of-service/.

2. MyBento Services

2.1

Services. The “Services” are made up of the MyBento web app, the backend management tools, all outputs of the MyBento systems, all features and additional products relating to each of those elements, facilitating access to employee benefits from Employee Benefits Providers, as well as all intellectual property rights linked to the Services. Subject to the terms and conditions of these Client Terms, MyBento grants the Client a non-exclusive, non-transferable license to access and use the Services to configure and manage a MyBento Employer Account.

2.2

General. MyBento provides the Services using a commercially reasonable level of skill and care. All the Services are governed by these Client Terms including any applicable Additional Service Agreements and the applicable Client Terms.

2.3

Additional Terms. The Client may have to agree to one or more of the Additional Service Agreements before accessing or using certain offerings that are part of the Services if or when subscribed to the applicable Services. Additional Service Agreements are specific to certain offerings of the Services and only apply if and when the Client orders such relevant Services. These Client Terms expressly incorporate the applicable Additional Service Agreement(s), if any. If for any reason these Client Terms have terms that are inconsistent with an Additional Service Agreement, the Additional Service Agreement will control with respect to the relevant Services.

2.4

Users’ Acceptance of User Terms. The Client acknowledges and agrees that Users have to agree to the User Terms in order to access and use the Services. Users who do not agree to the User Terms will not be able to access or use the Services the Client subscribes to, notwithstanding the correct and full completion of these Client Terms.

2.5

Changes to Terms. The Client understands that MyBento’s Services are evolving; as a result, from time to time, MyBento may make changes to these Client Terms, the Additional Service Agreements and other applicable agreements. MyBento will notify the Client of any material changes to these Client Terms by providing reasonable notice. If the Client does not accept applicable changes, neither the Client nor the Client’s Users will be able to access or use the Services; instead, the Client will be required to deactivate its account and stop accessing and using the Services. By continuing to use the Services after any updated terms become effective, the Client tacitly indicates their acceptance of the updates. Continued use includes continued access and use of the Services by the Client’s Users.

2.6

Changes to Services. MyBento may update, modify or discontinue the Services (including any of its portions or features) at any time without prior notice or liability to the Client or anyone else. If MyBento is discontinuing a Service in its entirety and the Client is subscribing to that Service, MyBento will (i) make reasonable efforts to notify the Client before discontinuing that Service, (ii) allow the Client reasonable time to download content linked to the Client’s Employer Account, and (iii) provide the Client with a pro rata refund for any unused prepaid subscription Fees paid by the Client for that specific Service for the remaining subscription period.

2.7

Third-Party Services. The Services may contain links to, integrate with, or provide the ability for the Client or Users to access Third-Party Services. The Client’s use of or reliance on any Third-Party Services are at the Client’s own risk. MyBento is not responsible for and does not make any promises, endorsements, representations or warranties regarding such Third-Party Services. MyBento may stop making any Third-Party Services available at any time with or without advance notice to the Client. Any liability stemming from the use of Third-Party Services rests with the authorised provider of such Third-Party Services and not with MyBento, unless agreed otherwise between the parties.

2.8

Compliance with Law. The Client will comply with all applicable laws and regulations in connection with the use of the Services, including (as examples) those laws and regulations applicable to the Client’s business, the Client’s employment of individuals, and/or the Client’s transactions with service providers (e.g. applicable employment or tax related laws). The Client also agrees that the use of the Services is meant to assist the Client in fulfilling its compliance requirements and it does not, in any way, guarantee or meet the Client’s compliance requirements.

2.9

No Professional Advice. Except as may be expressly provided in an applicable Additional Service Agreement, any information, advice, material, or content the Client may receive through the Services or in connection with the Services is for informational purposes only, and it is not financial, tax, legal, regulatory, or other professional advice. All Clients and their Users must make use of professional advice when acting on any information provided via the Services, and warrant that they will make all decisions based on their own volition and assessment.

3. Relationship of the Parties

3.1

The relationship of the parties shall be governed by these Client Terms and nothing contained herein shall be deemed to constitute a partnership, agency, intermediary, joint venture, employer/employee agreement or the like between them. No party shall by reason of the actions of any of the other parties incur any personal liability as a co-partner to any third party and no party shall be entitled to authorise, represent or to hold out to any third party that the relationship between the parties is that of a partnership, joint venture, same brand, agency, or the like as aforesaid.

4. Administering the MyBento Employer Account

4.1

Administration of Employer Account. The Client is primarily responsible for the administration, configuration, creation, and ongoing management of the MyBento Employer Account. For certain administrative tasks that require specialised system access, MyBento may provide support services to assist with these functions. Regardless of which party performs the administrative functions, the Client remains responsible for the quality, accuracy, and completeness of the Employee Information, the configuration of Employee Profiles, and the granting and revoking of access to Users.

4.2

Access to Client Systems by MyBento. If the Client requests support from MyBento to set up or manage the Employer Account or Employee Profiles, the Client agrees that MyBento may access and use the Client Systems required for such implementation and set up by ways of providing access to the Client Systems or reporting extracts from such Client Systems.

4.3

Keeping Employee Information Updated. The Client acknowledges that the Client is solely responsible for ensuring Employee Information remains up-to-date, either by updating any changes to the Employee Information on the Client Systems (where MyBento receives Employee Information from the Client Systems), by capturing the changes on the Employer Account directly, or by providing MyBento with accurate and timely information where MyBento is assisting with administrative configuration functions. When MyBento performs administrative configuration functions on behalf of the Client, the Client remains responsible for promptly providing all necessary information updates to MyBento.

5. Collecting and Processing Client Information

5.1

Personal Information. By providing the Services, MyBento will receive and process “Personal Information” (as defined in the POPI Act – and in the context of these Client Terms includes Employee Information) that relates to employees within the Client’s organisation and to Users. The type of Personal Information MyBento may be required to process to provide the Services includes but is not limited to: names, photographs, contact details, ID numbers, addresses, gender, sex, race, salary details and financial information. Between MyBento and Client, the parties confirm that the Client is the “Responsible Party” (as defined in the POPI Act) and MyBento is the “Operator” (as defined in the POPI Act) in respect of any Personal Information forming part of the Employee Information or any other personal information exchanged pursuant to the use of the Services. MyBento may, however, in instances where it as well as the Client jointly decide the methods and purposes of the relevant data’s collection and processing, operate as a “Responsible Party” over that data as well, in which case, MyBento and the Client will be considered joint-Responsible Parties of any Personal Information exchanged in this context. MyBento will also function as a sole Responsible Party in instances where it alone decides and benefits from the methods and purposes for which data is collected (such as when a User wishes to acquire further products/services from MyBento and its service providers directly, and has to provide further relevant Personal Information for their additional choices).

5.2

License. The Client grants to MyBento and its affiliates the rights and licenses to receive, process, and otherwise use the Employee Information to provide the Services. MyBento will process and use the Employee Information only to the extent, and in such a manner, as is necessary for the purpose of providing the Services.

5.3

Permissions. The Client represents and warrants that it has obtained all consents and permissions from the Users to transmit, process and use such Employee Information with the Services, and indemnifies MyBento against any claims from Users, Employees or any other third party for the Client’s breach of this warranty.

5.4

Data Processing Agreement. These Client Terms incorporate the Data Processing Agreement (“DPA”), available on https://mybento.net/data-processing-agreement between MyBento and the Client, which governs the processing of Personal Information as part of the Services. The DPA outlines the respective roles and responsibilities of the parties in relation to data protection compliance, security measures, notification requirements, and other obligations under the Data Protection Legislation. In the event of any conflict between these Client Terms and the DPA regarding the processing of Personal Information, the provisions of the DPA shall prevail. The Client acknowledges that adherence to the DPA is a material condition of these Client Terms, and any breach of the DPA shall constitute a material breach of these Client Terms.

5.5

Industry Standard Protections. MyBento will: (i) promptly comply with any Client request that asks MyBento to amend, transfer or delete the Employee Information, both during and after the term, (ii) only make copies of Employee Information to the extent reasonably necessary to provide the Services which includes back-up, mirroring and similar availability enhancement techniques, security, disaster recovery and testing of Employee Information, and (iii) use all industry-standard, reasonable steps to ensure the Employee Information remains confidential and secure in the Services.

5.6

Sub-operator. MyBento may engage sub-operators to process Employee Information (each a “Sub-operator”). MyBento will enter into a written contract with each Sub-operator that provides sufficient guarantees to implement appropriate technical and operational measures in compliance with Data Protection Legislation. MyBento will remain responsible for the acts or omission of Sub-operators as if the acts or omission of the relevant Sub-operator were the acts or omissions of MyBento.

5.7

Aggregated and Anonymised Data. Client agrees to allow MyBento to retain and use the Employee Information in aggregate and anonymised form for any purpose in connection with MyBento’s current or future products and services; provided that such use is in compliance with Data Protection Legislation and all applicable laws, rules and regulations and does not identify the Client or any User. This information is used to improve the understanding and quality of the MyBento product and services by the MyBento team.

6. Fees

6.1

Subscription Fees. “Subscription Fees” refers to the amounts specified in any applicable Commercial Terms agreement, including, for example, fees for implementation of the Services and ongoing subscription fees for the use of the Services. Subscription Fees are based on the applicable user count tier which corresponds to ranges of active Users (“User Tier”), the Services ordered, applicable flat rates, the subscription term and other costs or charges as determined by MyBento in its sole discretion.

6.2

Service Fees. “Service Fees” means the fees, charges, or costs associated with Employee Benefits Providers’ services. Where an Employee Benefits Provider does not directly collect these Service Fees itself, MyBento may collect such Service Fees on behalf of the respective Employee Benefits Provider(s) or its intermediary as part of MyBento’s Services. Service Fees are distinct from MyBento’s own Subscription Fees.

6.3

Increase in Number of Users. If at any point during the Client’s then-current subscription term the total number of Users increases, the Client will be charged for the increased number of Users, prorated for the balance of the applicable subscription term, at the price for that subscription term and according to the appropriate User Tier, or as agreed to in the applicable Commercial Terms.

6.4

Decrease in Number of Users. If the total number of Users decreases during the Client’s then-current subscription term, the Client will not be entitled to any refunds, credits or adjustment of the Fees already paid or owed for the remainder of the committed subscription term, except as required by applicable law.

6.5

Changes in User Tiers. If at any point during the Client’s then-current subscription term the total number of Users increases beyond the Client’s current User Tier threshold as stipulated in the Commercial Terms, the Client will be upgraded to the appropriate tier level and charged at the rate for that newly applicable User Tier, or as agreed to in the applicable Commercial Terms, prorated for the balance of the applicable subscription term.

6.6

New or Additional Service Offerings. If MyBento release new offerings and the Client chooses to subscribe to such offering(s) during a then-current subscription term, the Client will be billed for such product(s) at MyBento’s then list price, prorated for the balance of the subscription term or as agreed to in the applicable Commercial Terms. Similarly, if the Client wishes to add additional products to the Services the Client is subscribed to, the Client will be billed for such product(s) at myBento’s then list price, prorated for the balance of the subscription term or as agreed to in the applicable Commercial Terms.

6.7

Renewal Subscription Fees. Unless otherwise agreed to in an applicable Commercial Terms, the Subscription Fees for renewal terms will be at MyBento’s then-current list price. The Client will be responsible for the payment of all applicable Fees for the renewal term, and that upon each such renewal term, the Client’s designated payment method will be automatically charged for all Fees (as applicable) for the renewal subscription term on or around the renewal date, as applicable, without further authorisation from the Client and/or without further notice by MyBento (unless required by law). The Client may adjust the subscription for an upcoming renewal term if 30 days notice prior to the expiration of the Client’s then-current subscription term is given in writing  notifying MyBento that the Client wants to i) change the subscription term; and/or ii) change the selected Services.

6.8

Non-Cancelable & Non-Refundable. Except as stated in these Client Terms, Services are not cancellable and Fees are not refundable, unless required under applicable legislation.

7. Payment Terms

7.1

Payment. Client agrees to pay the Fees as per the payment terms specified in the Commercial Terms and/or the Additional Service Agreement(s), timeously and without setoff nor deduction, and in the currency detailed in the Commercial Terms and/or the Additional Service Agreement(s), or otherwise agreed to between the parties.

7.2

Payment Services for Employee Benefits Providers. The Client hereby authorises MyBento to act as a payment collection agent for Employee Benefits Providers in connection with Service Fees related to employee benefits where Employee Benefits Providers do not directly collect these fees themselves. MyBento is expressly authorised to collect Service Fees from the Client on behalf of one or more Employee Benefits Providers and remit collected Service Fees to the respective Employee Benefits Providers. MyBento shall provide transparent reporting of all fee collections and disbursements related to these Payment Services.

7.3

Deduction of Employee-Purchased Benefits. Where Users purchase employee benefits or other offerings through the Services at their own cost (“Additional Purchases”), the Client acknowledges its role in facilitating payment for such Additional Purchases in accordance with the User Terms. The Client agrees to deduct the applicable amounts from the relevant Users’ remuneration and remit these amounts to MyBento or directly to the Employee Benefits Provider as specified in the Commercial Terms and/or Additional Service Agreement(s). The Client warrants that it has obtained all necessary authorisations from Users to make such deductions in accordance with applicable employment and labor laws. MyBento shall provide the Client with accurate and timely information regarding amounts to be deducted for each User.

7.4

Non-Payment. MyBento reserves the right to suspend the Client’s use of the Services upon 7 days’ prior notice by email if any Fees or Service Fees are overdue. If the Client’s use of the Services is suspended, neither the Client nor its Users will have access to the Services. The Services will become active again when the applicable Fee is paid in full. Should full payment not be received within 14 days at all, the Services will be deemed to be terminated by the Client and the usual termination provisions will then apply.

8. Term & Renewal

8.1

Subscription Term. The subscription term starts on the Subscription Effective Date as stipulated on the applicable Commercial Terms and continues until all the subscription terms for the Services purchased as stipulated in all Commercial Terms have expired or are terminated in accordance with these Client Terms. Unless otherwise provided in the applicable Commercial Terms,  the initial subscription term is 12 months.

8.2

Automated Renewal. Unless otherwise specified in the applicable Commercial Terms, or by providing 30 days’ notice of non-renewal or 30 days’ notice to request a change to the subscription term, all subscription terms automatically renew by 12 month increments.

9. Termination

9.1

Material Breach. Either party may terminate these Client Terms or the applicable Commercial Terms, effective immediately, upon written notice to the other party if the other party materially breaches any part of this Client Terms or the applicable Commercial Terms and fails to cure the breach within 14 days of receiving written notice of it from the non-breaching party.

9.2

Insolvency. Either party may terminate these Client Terms if (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.

9.3

Effect of Termination. Upon the effective date of termination, (i) the Client’s right to access or use the Services will terminate immediately; (ii) the Client and Users will no longer have access to the Services; (iii) MyBento will suspend or delete the Employer Account and Employee Profiles; and (iv) any and all the Client’s payment obligations under these Client Terms will become due immediately.

9.4

Data Removal. Upon written request within 30 days after the effective date of termination of these Client Terms, MyBento will make a copy of all Employee Information available to the Client for export or download. If legally permissible, after the export or after the expiration of such 30-day period, MyBento will have no obligation to maintain or provide any content that formed part of the Employer Account and the Employee Profile including but not limited to Employee Information. MyBento may be required to maintain certain content or Employee Information to comply with applicable law.

9.5

Survival. All provisions of these Client Terms which by their nature should survive, will survive termination of these Client Terms.

10. Confidentiality

10.1

“Confidential Information” means any non-public information disclosed by either party, whether orally, in writing, electronically or by any other means, 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, including but not limited to: business plans, marketing strategies, pricing, financial data, customer information, Client Information, technical specifications, product plans, software, developments, inventions, processes, formulas, designs, security information, personal data, and the terms of this Agreement.

10.2

Confidential Information Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the party receiving such information; (ii) was rightfully known prior to receipt; (iii) is rightfully obtained from a third party without restriction; or (iv) is independently developed without use of the other party’s Confidential Information.

10.3

Restrictions on Use and Disclosure. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each party agrees to take reasonable precautions to prevent any unauthorised disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors with a need to know such information and who are parties to appropriate agreements, or otherwise bound by confidentiality obligations, sufficient to comply with this section.

11. Indemnity

11.1

By Client. The Client agrees to indemnify MyBento and its affiliates and their directors, employees, agents and suppliers against all claims, liabilities, costs, expenses, damages and losses including all interest, penalties and legal costs and all other professional costs and expenses suffered or incurred by us arising out of (i) the Client’s breach of its obligations under these Client Terms; (ii) a breach by any User of the User Terms; (iii) the Client’s (or its Users’) violation of any third-party right, including intellectual property rights; (iv) the Client’s (or its Users’) violation of any applicable law, rule or regulation; (v) the Client’s (or its Users’) gross negligence or willful misconduct; or (vi) any other party’s access to and use of the Services (or access and use of any Third-Party Services via the Services) with the Client’s (or its Users’) unique credentials; or (vii) the Client’s failure to pay any sales, value-added, use, or other taxes (collectively referred to as “Claims”). Each party acknowledges that Claims include any claim or action brought by a data subject, including Users, arising from a breach of Client’s obligations under the relevant Data Protection Legislation.

11.2

By MyBento. MyBento agrees to indemnify, defend, and hold Client harmless against all Claims arising out of (i) MyBento’s breach of its obligations under these Client Terms, including any breach of relevant Data Protection Legislation, and (ii) any third-party claims that the Client’s use of the Services violates or infringes any valid patent, copyright, or trademark, or misappropriate a trade secret. MyBento may, at its option and expense, procure for the Client the right to continue to use the Services, or repair, modify, or replace the Services so that they are no longer infringing.

12. Limitation of Liability

In no event will MyBento be liable for any direct, consequential, indirect, punitive, exemplary, special, or incidental damages (including for any loss or corruption of data, profits, revenue or goodwill, interruption of business or the cost of procurement of substitute goods and services) arising from or relating to these Client Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort, strict liability or otherwise, even if a party has been advised of the possibility of such damages, and to the maximum extent permitted by applicable law, MyBento’s total cumulative liability under these Client Terms, from all causes of action and all theories of liability, will be limited to and will not exceed the total amount of Subscription Fees paid to MyBento hereunder in the twelve (12) months preceding the claim.

13. Miscellaneous

13.1

Privacy Policy. Please see MyBento’s Privacy Policy available at https://mybento.net/privacy-policy/ for more information on how MyBento collects and uses data relating to the use and performance of the Services.

13.2

Entire Agreement. These Client Terms (including all applicable Additional Service Agreements, exhibits and addenda) and the individual Commercial Terms referred to in these terms are incorporated in these Client Terms and form a single integrated agreement between the parties. These Client Terms expressly override and supersedes all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral. In the event of any conflict in the documents which constitute these Client Terms, the order of precedence will be (i) Commercial Terms; (ii) Data Processing Agreement; (iii) these Client Terms; (iv) the Additional Service Agreements, and (v) any other schedules, exhibits and other documents referenced and incorporated herein and therein. For avoidance of doubt, the User Terms will govern all Users’ use of the Services and will be deemed a separate agreement to these Client Terms.

13.3

Marketing. The Client consents to MyBento’s use of the Client’s name and logo(s) to list the Client publicly as one of MyBento’s clients on its website and marketing materials. This listing may include a testimonial provided by the Client in connection with the Services. The Client may contact us at info@mybento.net if they wish to withdraw or qualify such consent.

13.4

Acceptance. The parties agree that these Client Terms may be accepted either (i) by electronic signature; (ii) by clicking “I Accept” or similar affirmation in an electronic interface; or (iii) by agreeing to the Commercial Terms that incorporate these Client Terms by way of reference. Electronic signatures and acceptance methods are considered legally equivalent to handwritten signatures for all purposes under these Client Terms.

13.5

Governing Law. These Client Terms shall be subject to South African Law and the South African Courts shall have exclusive jurisdiction over any dispute arising from the use of the Services.