Application of these special terms and conditions
These Special Terms and Conditions operate in conjunction with the Metrofile General Terms and Conditions. All business is conducted on the basis of the General Terms and Conditions as read with the provisions hereof. The provisions of these Special Terms and Conditions are only of application to the extent that the Customer utilises and ordered any of the services contemplated below.
1. DEFINITIONS
Terms defined in the General terms and Conditions shall bear their meaning herein and the following further words shall, unless inconsistent with, or specifically excluded by the context, in addition to their respective ordinary meanings, bear the following meanings assigned to each of them respectively:
1.1. “Metrofile” shall mean Metrofile Proprietary Limited, registration number 2003/016054/07.
1.2. “the Agreement” and “Terms and Conditions” shall mean the general terms and conditions signed by the Customer together with any schedule or annexures attached thereto and these Special Terms and Conditions.
1.3. “Customer” or “Client” means the person or entity who has signed the Agreement, or, the person to whom Metrofile has rendered any Services to.
1.4. “Records” shall include the Customer’s: documents, records, computer media, microfilm, microfiche, film videos, recording tape, computer tapes, computer disks, computer magnetic tapes, books and records of companies, close corporations, firms and partnerships and all or any other books, and records which the Customer requires Metrofile to manage, store, convert, duplicate, microfilm, scan or load onto electronic media.
1.5. “Files” shall mean and refer to a batch or folder containing one or more documents.
1.6. “Carton Level” means the indexing of Records for storage purposes on the basis that each Metrofile carton of files is indexed as a single Record stored.
1.7. “File Level” means the indexing of individual documents for storage purposes on the basis that each individual file of documents is separately listed.
1.8. “Item Level” means and refer to the indexing of a single document or page within a file.
1.9. “RSWEB” and “Metrofile Online” means internet-based applications, which allow Customers to attend to an internet-based online interaction with Metrofile systems, which may be upgraded, enhanced, modified, or revised in part or whole, as and when Metrofile determines, and any new application which may replace either of these from time to time that Metrofile permits the Customer to access.
1.10. “the Services” means all or any of the services provided by Metrofile to the Customer in terms of the Agreement (or otherwise), including without limitation the storage, retention, retrieval, delivering, disposal and scanning of the Records, and, the provision of indexing services related thereto, if applicable. For the purposes of the Agreement, the “Services” shall also include the sale of products that are related to the provisions of the aforesaid Services by Metrofile to the Customer.
2. RECORDS MANAGEMENT SERVICES
2.1. The Records management process entails the receipt by Metrofile of Records, the indexing of the Records, if applicable, the storage of Records and the retrieval thereof from time to time. The packing and indexing process can be attended to, at the written election of the Customer, on the basis of:
2.1.1. Client-Pack & Index: where the Client packs and indexes the Records;
2.1.2. Metro-Pack & Index: where Metrofile packs and indexes the Records; or
2.1.3. Client-Pack Metro-Index: where the Client packs the Records and Metrofile Indexes the Records.
2.2. In the event that the Customer utilises the Client-Pack & Index option, Metrofile shall not be liable for any errors in the preparation of the index, neither shall Metrofile be obliged to verify the content of the container as against the indexed list of documents.
2.3. To the extent that Metrofile is required to attend to either indexing or packing services on behalf of the Customer, the Customer shall be liable to Metrofile for such services at Metrofile’s prevailing prices applicable to the particular service.
2.4. The monthly information and records management charges payable by the Customer shall be determined by reference to the Metrofile price list in force at the time. Storage charges are payable monthly in arrears, for each month (or part thereof) that the Records are stored by Metrofile on the Customer’s behalf.
2.5. The storage of Records (and the consequent cost) takes place, at the Customer’s discretion, on an Item Level, File Level or Carton Level.
3. RETRIEVAL SERVICES
3.1. The Customer shall be entitled, at its discretion, to require retrieval of Records to take place by way of:
3.1.1. the hand delivery of the requested Record to the Customer;
3.1.2. the scanning and e-mail of such Record to the Customer; or
3.1.3. the collection of the requested Record from Metrofile’s premises.
3.2. The Customer shall ensure that the retrieval instructions are given by its duly authorised representative/s in writing.
3.3. The Customer must pay Metrofile the prevailing rates applicable for retrieval service in full prior to retrieval of such Records.
3.4. Metrofile undertakes to use its best endeavours to retrieve documents for the Customer within the time limits agreed to in writing, or failing such agreement, within a reasonable period of time.
4. DESTRUCTION SERVICES
4.1. Metrofile shall, against the receipt of written and / or electronically transmitted instructions, signed by an authorised representative of the Customer, destroy the Records specified therein in accordance with the method requested by the Customer in writing and as per Metrofile’s prevailing standard fees for such method of destruction. At the Customer’s written request, Metrofile will advise the Customer of the documents that appear to be capable of being lawfully destroyed by Metrofile. The Customer shall however be solely responsible for the consequences of the destruction of Records and shall likewise be solely responsible for determining the date upon which Records are destroyed. The Customer indemnifies and agrees to hold Metrofile harmless against any claims which may be brought by any party as a result of the destruction of Records by Metrofile. Further, it is the onus of the Customer to ensure that Metrofile is updated (in writing) with the details of the person responsible for destruction, to whom details of Records due for destruction will be sent.
4.2. The Customer instructions (in writing) to Metrofile to destroy Records shall be made on or before the 15th day of that month, failing which Metrofile shall be entitled to process the destruction of the Records the following month (in which instance, the Customer will be liable for storage charges for the additional month). In circumstances where an anticipated destruction date for a Record is determined upon the receipt by Metrofile of the Record (or thereafter), the Customer shall nevertheless be required to sign a formal written instruction to destroy the Record. Where the Customer fails to sign the aforesaid written instruction to destroy, Metrofile shall be entitled to extend the anticipated destruction date by a period or periods of 1 (one) year at a time.
5. BACKUP MANAGEMENT SERVICES
5.1. Metrofile provides a facility for the off-site management of data backup computer disks, tapes, magnetic cartridges, microfilm, microfiche, optical disks and similar electronic records (“the electronic records”). In order to ensure the confidentiality and safety of the electronic records, the Customer undertakes to make certain that only a duly authorised Customer representative hands over/receives the electronic records on behalf of the Customer.
5.2. Metrofile undertakes that it shall not access the electronic records. Metrofile also undertakes that it will store the electronic records in a secure, climate-controlled environment in order to protect the electronic media.
5.3. Metrofile provides after hours emergency services to the Customer in relation to the retrieval of electronic records. The after hours service is available 24 (twenty four) hours per day, 365 (three hundred and sixty five) days per year.
6. IMAGE PROCESSING SERVICES
6.1. The image processing service relates to the scanning, conversion and electronic storage by Metrofile of documents. –
6.2. The following terms and conditions apply specifically (and in addition to the remaining Terms and Conditions of this Agreement) to the conversion service:
6.2.1. once a document has been scanned, it is made available to the Customer for a period of 3 (three) months only, by way of internet access, hosted solution or by way of a CD (or other media format nominated by Metrofile) containing copies of the documents, as selected by the Customer in writing, at the end of the 3 month period Metrofile will delete any copies of the data without any further notice to the Customer; and
6.2.2. the Customer may instruct Metrofile to destroy the original document, in which event such destruction service will be dealt with in terms of clause 4 above. The Customer expressly agrees however that Metrofile is not liable for any damages, claims or other losses arising out of, or in connection, with the destruction of any document.
6.3. The Customer is solely responsible for ensuring that it complies with all laws applicable to the retention of documents. Metrofile does not warrant that a document stored in electronic format will be sufficient for legal, tax or other purposes. The Customer indemnifies Metrofile against any claims that may arise, or that may be initiated by any third party in relation, directly or indirectly, to the processing and / or destruction of documents.
6.4. To the extent that scanned documents are made available for download, viewing or printing, the Customer shall be solely responsible for securing access to the documents.
6.5. Upon termination of this Agreement between Metrofile and the Customer (regardless of the reason for such termination), the Customer shall have no proprietary interest in the Metrofile software used in rendering the Services and the Customer’s access to the documents via the internet shall terminate.
7. CONFIDENTIAL RECORD DESTRUCTION SERVICES
7.1. In addition to the destruction services set out in clause 4 above, one of Metrofile’s Affiliates provides the Customer with a confidential record destruction service (“CRD services”).
7.2. In regard to CRD services:
7.2.1. the Customer shall be placed in possession of a container for the purposes of depositing confidential Records that the Customer wishes to destroy (“Secured Bins”);
7.2.2. the Secured Bins shall remain the property of Metrofile and/or its Affiliate at all times, and the Customer shall be liable for the full replacement costs thereof in respect of any loss and/or damage to the Secured Bins. If the Agreement is terminated, for whatsoever reason in the first 3 (three) months, then Metrofile and/or its Affiliate shall charge the Customer a removal fee of R100 per Secured Bin and the costs related to the manufacture of the Secured Bins, should they have been specifically made for the Customer,
7.2.3. the Customer is responsible for:
7.2.3.1. identifying confidential Records for destruction;
7.2.3.2. placing those Records in Secured Bins for the CRD services;
7.2.3.3. ensuring that no other Records are placed in the Secured Bins and that the bins are not utilised by its employees or other persons in order to remove Records, data or assets from the Customer’s premises;
7.2.3.4. ensure that the Secured Bins provided are not used for any purpose other than for the purpose of the CRD services and that no other materials are placed in the containers other than documents that have been identified for destruction;
7.2.3.5. securing the Secured Bins;
7.2.3.6. maintaining Records of items that are identified for confidential record destruction and for placing (only) those Records in bins and ensuring that, inter alia, no bulldog clips, hardcover files, cardboard, plastic sleeves, liquids, food, explosive materials, flammable materials, sharp, heavy or dangerous objects or potentially dangerous objects are placed in the Secured Bins; and
7.2.3.7. ensuring that the Secured Bins are easily accessible and if stored on a floor with no lift access, the Secured Bins must be transferred to the ground floor prior to the arrival of Metrofile or its Affiliates.
8. STATIONERY
All boxes, CD’s or containers used in connection with the Services contemplated by this Agreement shall be purchased by the Customer from Metrofile on the Terms and Conditions contemplated by this Agreement.
9. RSWEB/METROFILE ONLINE
9.1. In consideration of the payment of the relevant fees by the Customer to Metrofile, the Customer is granted the non-transferable, limited permission to access and use the website, RSWEB or Metrofile Online and the materials provided thereon solely for the purposes specifically described therein as long as the Customer complies with these Terms and Conditions. In the event of the Customer disputing, and or not agreeing to be bound by these Terms and Conditions, Metrofile shall have the right to immediately terminate the Customer’s access to this website.
9.2. RSWeb/ Metrofile Online allows the Customer to perform the following functions:
9.2.1. inputting and capturing of data;
9.2.2. search and retrieval of Records, whether in physical or image form;
9.2.3. the ordering of Metrofile media products (Stationery);
9.2.4. ordering destruction of records
9.3. RSWeb and Metrofile Online are intended to provide specific features and services and are not intended to provide exhaustive treatment of any subject dealt with.
9.4. The capturing of data using RSWeb and/or Metrofile Online does not attract any data entry charges. Notwithstanding this, if Metrofile is called upon to capture any data on behalf of the Customer, the standard Metrofile data entry charges, prevailing at the time, will be levied.
9.5. Metrofile warrants that all information contained in the website is accurate and precise but cannot be held responsible for Internet-related errors or errors occasioned by the Customer in capturing or accessing information or files. Metrofile does not warrant that the website or any services or content thereon will be uninterrupted or error-free, that defects will be corrected or that the website, the server on which it is made available or any connected system is free of viruses or other harmful components.
9.6. Metrofile may change, suspend, terminate or discontinue any aspect of the website at any time, including the availability of any services, information, features or functions accessible by means of the website. Metrofile may also impose limits on certain features, functions or services or restrict access to parts or all of the website. The aforementioned is subject to Metrofile furnishing adequate notice to the Customer.
9.7. The Customer’s attention is drawn to the generally accepted fact that information transmitted via the worldwide web is susceptible to distortion, monitoring and interception. The Customer acknowledges that he/she/it shall bear all risk of transmitting such information via the world wide web and under no circumstances will Metrofile be liable for any loss, harm or damage suffered as a result thereof. Use of the website is entirely at Customer’s own risk, and the Customer assumes full responsibility and risk for loss resulting from downloading, use of or access to the website and/or content.
9.8. RSWeb and Metrofile Online are protected by copyright, database rights and other intellectual property rights. Metrofile retains all rights, title and interest in and to the license of RSWeb and Metrofile Online, including all data, text, images, software and other elements (including multimedia elements), which together comprise RSWeb and Metrofile Online, displayed on, distributed from, made available for downloading by means of, or used to provide any of, the websites functionalities. No person may copy, display, reproduce or otherwise use (collectively “use”) any Metrofile or RSWeb and/or Metrofile Online logo or any other graphics displayed on these websites or any subsidiary pages, whether electronically or otherwise (collectively referred to as “logo”), without the prior written approval of Metrofile and subject to such conditions as Metrofile may specify from time to time.
10. STORAGE RULES
10.1. The Customer agrees to comply with the standard storage operating procedures of Metrofile from time to time.
10.2. The Customer shall not, at any time, store with Metrofile, any narcotics, materials considered to be highly flammable, explosive, toxic, radioactive, organic material which may attract vermin or insects, or any other materials which are otherwise illegal, dangerous and unsafe to store or handle in an enclosed area. Metrofile reserves the right to open and inspect any stored material and refuse acceptance of any stored material which fail to comply with Metrofile’s storage restrictions and guidelines. Unless otherwise expressly agreed between the Parties, the Customer shall not store negotiable instruments, jewellery, cheque stock, ticket stock or other items which have intrinsic market value. The Customer agrees to indemnify Metrofile on a full and unqualified basis against all actions, claims or proceedings or loss, damage, cost or expense suffered or incurred by Metrofile as a result of the breach by the Customer of the terms of this clause 10.
11. AUTHORISED OFFICERS
11.1. The Customer shall be obliged from time to time to nominate in writing the names and associated access codes of the person or persons who shall be the Customer’s duly authorised representatives for the purposes of representing the Customer in relation to the Services (including without limitation to the retrieval and destruction of Records).
11.2. Metrofile shall be entitled to act upon the written, electronically transmitted and/or oral instruction of any such person (or of any person who is ostensibly authorised by the Customer) and Metrofile shall not be liable for any loss, damages, expenses or costs as a result of Metrofile acting upon any instructions purposed to be provided by such authorised persons.
12. METROFILE’S BUSINESS HOURS
Metrofile will be open for the reception, delivery and retrieval of documents during business hours (08h00 to 16h30 SAST) and business days, unless otherwise stipulated.
13. DISASTER RECOVERY
In the event of any incident that renders Metrofile’s premises unsuitable for carrying out the duties as contained herein, Metrofile shall make suitable arrangements to remove the Records to such premises that afford proper protection as would normally be provided by Metrofile. Such removal will be at Metrofile’s expense.
14. HI-JACKING
In the event of a Metrofile vehicle being hi-jacked or stolen whilst conveying Customer Records, Metrofile undertakes to notify the Customer thereof as soon as the circumstances permit. In addition, Metrofile undertakes to provide the Customer with the available details of the Records in the vehicle that is subject to theft or hi-jacking. Similarly, the Customer undertakes to notify Metrofile in the event of one of its vehicles being subject to theft or a hi-jacking whilst transporting Records that have previously been logged on Metrofile’s systems. The Customer will provide Metrofile with details of the quantity and reference numbers of the Records being transported in the affected vehicle.
15. GENERAL
15.1. Save as is specifically provided for herein to the contrary, no variation or alteration of this Agreement shall be effective unless reduced to writing and signed by a duly authorised director or manager of Metrofile. No indulgence granted by Metrofile shall constitute a waiver of any of Metrofile’s rights.
15.2. The Metrofile’s know-how, methodologies, technologies, websites, processes, computer systems and applications are proprietary to Metrofile. The Customer shall not be entitled, at any time before or after termination of the Agreement, to be provided with electronic data records emanating from the Metrofile computer systems and its computer applications, including without limitation, any such electronic data records brought into existence during the currency of the Agreement, for the purposes of assisting Metrofile in the rendering of the Services to the Customer.
15.3. Metrofile however undertakes to ensure that the Customer has access at all times to a complete listing of all Records stored by Metrofile.
15.4. Metrofile reserves the right to provide data to the Customer in a recognised format as determined by Metrofile.
15.5. Regardless if the Customer is domiciled outside the Republic of South Africa, the Agreement and all contracts between the Customer and Metrofile shall be governed and interpreted in accordance with the laws of the Republic of South Africa and the South African Courts shall have sole jurisdiction in respect thereof.
15.6. The granting, continuation and termination of credit (if any) by Metrofile, shall be within the sole discretion of Metrofile. Metrofile furthermore reserves the right to suspend the provision of the Services, to cancel any undelivered portion of any order or to impose such other conditions as to security and terms of payment as it deems fit.
15.7. In these Terms and Conditions, unless the context otherwise requires, words importing the masculine gender shall include the feminine gender and words importing to the singular shall include the plural and vice versa.
15.8. Should any of the provisions of this Agreement for any reason be declared invalid or unenforceable, the remaining provisions shall not be invalidated but shall continue to be and remain of full force or effect.