Preface
Fiscal Harmony requires consideration for and as a condition of allowing your use of fiscal harmony software. By accessing or using our software you represent that you have the full authority to act to bind yourself, any third party, company, or legal entity, and that your use and/or interaction, as well as continuing to use or interact, with the site constitutes your having read and agreed to these terms of use as well as other agreements that we may post on the site.
By viewing, visiting, using, or interacting with fiscal harmony software or with any banner, pop-up, or advertising that appears on its website, you are agreeing to all the provisions of this terms of use policy and the privacy policy of fiscal harmony software. Fiscal harmony reserves the right to deny access to any person or viewer for any lawful reason. Under the terms of the privacy policy, which you accept as a condition for viewing, fiscal harmony is allowed to collect and store data and information for the purpose of exclusion and for many other uses.
These terms of use agreement may change from time to time. All revised versions of this agreement may be viewed by accessing the fiscal harmony’s official website. All users have a legal obligation, as part of the consideration for permission to access fiscal harmony software, to keep themselves informed of such changes by reviewing these terms of use page each time they visit the fiscal harmony website.
THE PARTIES AGREE AND RECORD AS FOLLOWS:
- Each Party agrees or has disclosed or wishes to disclose its Confidential Information to the other Party for the purposes described in clause 2.
- The Parties have agreed to enter into this Agreement for the protection of each other’s interests in data privacy and subsequent liability.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following terms/expressions shall bear the meanings assigned to them below:
1.1.1. “Affiliates” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to Subsidiaries and associates that directly or indirectly, control, are controlled by, or are under common control with or by a Party.
1.1.2. “the/this Agreement” means the Agreement set out herein, together with all Annexures.
1.1.3. “Business Day” means any day which is not a Saturday, a Sunday or a public holiday gazetted as such in the Republic of Zimbabwe.
1.1.4. “Confidential Information” means:
1.1.5. any information or data which by its nature or content is identifiable as sensitive, confidential and/or proprietary to the Disclosing Party and/or any third party, and/or the Disclosing Party’s Affiliates or which is provided or disclosed in confidence and which the Disclosing Party or any person acting on its behalf may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. The Disclosing Party’s Confidential Information shall include (i) information relating to strategic objectives and planning for both its existing and future needs; (ii) information relating to either Party’s business activities, business relationships, products, services, clients and Staff; (iii) technical, scientific, commercial, price sensitive, financial and market information and trade secrets; (iv) intellectual property that is proprietary to a Party or that is proprietary to a third party and in respect of which the Disclosing Party has rights of use or possession; (v) Disclosing Party’s plans, designs, drawings, functional and technical requirements and specifications; (vi) information concerning faults or defects in either Party’s systems, hardware and/or software or the incidence of such faults or defects; (vii) all agreements to which either Party is a party, including this Agreement;(viii) all information disclosed in Annexure “B”;
1.1.6. Confidential Information excludes information or data which (a) is lawfully in the public domain or already in the possession of the Receiving Party from a source other than the Disclosing Party at the time of disclosure to the Receiving Party; or (b) subsequently becomes lawfully part of the public domain by publication or otherwise; or (c) subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such Confidential Information; or (d) is disclosed pursuant to a requirement or request by operation of law, regulation or court order; provided that the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions and provided further that the information disclosed in terms of this Agreement will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party’s possession. The determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trade or otherwise.
1.1.7. “End user”, means the entity transacting with Fiscal Harmony having duly accepted these terms and conditions.
1.1.8. “Disclosing Party” means any Party who discloses Confidential Information to the other Party in terms of this Agreement, and this includes any third party to the extent that if such a third party legally discloses or receives Confidential Information in terms of this Agreement, they will be bound by this agreement.
1.1.9. “Effective Date” means the of acceptance of this terms and conditions.
1.1.10. “Notice” means a Written document, and “Notify” shall have a corresponding meaning.
1.1.11. “Parties” means Fiscal Harmony and the End User, and “Party” shall mean either one of them, as the context may dictate.
1.1.12. “Receiving Party” means the Party receiving Confidential Information.
1.1.13. “Relationship Managers” means the persons appointed by Fiscal Harmony in terms of Clause 3 of these terms and conditions.
1.1.14. “Staff” means any employee, independent contractor, agent, consultant, subcontractor or other representative of either Party.
1.1.15. “Signature” means the acceptance of these terms and conditions by virtue of clicking the “accept” or “proceed” button and by agreeing to access Fiscal Harmony’s subsequent web page. This shall have the same binding effect as the appending of a physical signature without any derogation.
1.1.16. “Writing” includes any hand-written, typewritten or email, presentation document or communication, and “Written” shall have a corresponding meaning.
1.2. Words importing:
1.2.1. Any one gender includes the other gender.
1.2.2. the singular includes the plural, and vice versa; and
1.2.3. natural persons include created entities (corporate or unincorporated) and vice versa.
1.3. Any reference to “Days” shall be construed as being a reference to calendar days unless a “Business Day” is specified.
1.4. Any provision in the definitions and interpretation clause conferring rights or imposing obligations on either Party, shall be regarded as a substantive provision of this Agreement, notwithstanding the fact that it only appears in the said clause.
1.5. The phrases “include” and “including” means “include without limitation” and “including without limitation” respectively. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it.
1.6. This Agreement is the result of negotiations between the Parties and shall not be construed in favour of or against either Party by reason of the extent to which that Party or its advisors participated in the preparation of this Agreement.
2. PURPOSE
2.1. This agreement warrants the collection and retaining of End Users’ data for the reasons given hereunder.
2.2. Confidential Information is being disclosed for purposes of transparency in the agreed fiscalization process and related transactions between the Parties.
2.3. This Agreement shall not create an obligation on either Party to enter into further agreements and or negotiations.
3. RELATIONSHIP MANAGEMENT
3.1. Fiscal Harmony nominates a Relationship Manager who shall be accessible, contactable and authorised to ensure that the obligations in terms of this Agreement are properly fulfilled.
4. GOOD FAITH
4.1. End user agrees that it shall at all times during the lifespan of this Agreement act reasonably and in good faith.
4.2. End user agrees that they it enters into this Agreement on the basis of trust and record that it will observe good faith in contracting and dealing with each other and implementing the provisions hereof. This implies, inter alia, that it will perform its obligations arising from this Agreement diligently and with reasonable care.
5. DURATION
5.1. This Agreement shall commence on the Effective Date and shall endure for a period of 12 (twelve) months (“Term”) thereafter, or for a period of one year from the date of the last disclosure of Confidential Information to the receiving party, whichever is the longer period, whether or not the Parties continue to have any relationship for that period of time.
5.2. Fiscal Harmony reserves the right to renew, amend or vary these terms and conditions periodically. It is the end user’s duty to review the updated terms and conditions which shall always be available on Fiscal Harmony’s website.
5.3. The Parties hereby agree that trade secrets and personal information hereby disclosed by End Users shall be protected indefinitely notwithstanding the expiry of the term above.
6. OBLIGATIONS
6.1. The End User agrees and undertakes:
6.1.1. except as permitted by this Agreement, not to disclose or publish any Confidential Information in any manner, for any reason or purpose whatsoever without the prior written consent of the Fiscal Harmony and provided that in the event of the Confidential Information being proprietary to a third party, it shall also be incumbent on the Receiving Party to obtain the consent of such third party.
6.1.2. not to make or issue any formal or informal announcement (with the exception of legally required stock exchange announcements), advertisement or statement to the press in connection with this Agreement, or related negotiations and or agreements, or otherwise disclose the existence of this Agreement, or the subject matter thereof, to any other person without the prior Written consent of the Fiscal Harmony.
6.1.3. to restrict the dissemination of the Confidential Information to only those of the Staff who are actively involved in activities for which use of Confidential Information is authorized and then only on a “need to know” basis and the End User shall initiate, maintain and monitor internal security procedures reasonably acceptable to the Fiscal Harmony to prevent unauthorized disclosure by the Staff.
6.1.4. to take all practical steps, both before and after disclosure, to impress upon the Staff that are given access to Confidential Information the secret and confidential nature thereof.
6.2. The Receiving Party shall protect the Confidential Information in the manner, and with the endeavor, of a reasonable person protecting his/her own Confidential Information. In no event shall the Receiving Party use less than reasonable efforts to protect the confidentiality of the Confidential Information.
6.3. The Receiving Party agrees:
6.3.1. to use the Confidential Information solely for the purpose of negotiations and discussions with the Disclosing Party.
6.3.2. to keep the Confidential Information confidential and not to disclose the Confidential Information to any person without the Disclosing Party’s prior written approval. The Receiving Party will be responsible for maintaining the confidentiality and security of all Confidential Information and will take all reasonable measures to prevent unauthorized disclosure of any Confidential Information.
6.3.3. not to adapt the Confidential Information for any purposes.
6.3.4. not to disclose to any person that the Confidential Information has been disclosed to the Receiving Party.
6.3.5. To comply with applicable Legislative and other applicable regulations pertaining to Data Protection in Zimbabwe.
6.3.6. To frequently audit its data protection and data manage systems.
6.3.7. To implement best practices for data protection and management protocols in order to ensure maximum data security.
6.3.8. To investigate, identify, report and take action against any significant breach of its data protection systems.
6.3.9. To ensure that its employees do not compromise the integrity and security of its data.
6.3.10. not disclosing any copies of any materials containing Confidential Information, without the Disclosing Party’s prior Written approval. All copies will at all times remain the exclusive property of the Disclosing Party.
6.4. Unless the Parties otherwise agree in Writing, no representations or warranties are given by the Disclosing Party, whether express or implied, as to the accuracy or completeness of the Confidential Information.
6.5. A Party shall not without the Prior Written consent of the other Party use the conclusion of this Agreement as a reference for purposes of marketing or proposals to or discussions with any third party or Affiliate of the other Party.
6.6. The obligations of the Receiving Party pursuant to the provisions of this Agreement shall not apply to any information that:
6.6.1. is known to or in possession of the Receiving Party prior to disclosure thereof by the Disclosing Party.
6.6.2. is or becomes publicly known, otherwise than pursuant to a breach of this Agreement by the Receiving Party.
6.6.3. is acquired independently of the Disclosing Party by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement.
6.6.4. is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulations in force from time to time; provided that in these circumstances, the Receiving Party shall advise the Disclosing Party in Writing prior to such disclosure to enable the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard; provided further that the Receiving Party will disclose only that portion of the information which it is legally required to disclose and the Receiving Party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances; or
6.6.5. is received by a Party in good faith from a third party in circumstances that do not amount to a breach of the provisions of this Agreement or to a breach by the third party of any undertaking it may have made to a Party to this Agreement in relation to such Confidential Information.
7. PERMITTED DISCLOSURE
7.1. Notwithstanding the provisions of clause 6, the Receiving Party may disclose the Confidential Information:
7.1.1. to Staff and professional advisers of the Receiving Party authorised by its Relationship Manager on a “need to know” basis and the Receiving Party shall be liable to the Disclosing Party for any breach of confidentiality by such person; or
7.1.2. where the Receiving Party is required to do so by law or by order of any court or tribunal of competent jurisdiction, provided that before making any disclosure the Disclosing Party will as soon as possible be given Notice of such disclosure; or
7.1.3. where the rules of any stock exchange require such disclosure; or
7.1.4. where governances that apply within the Receiving Party’s group of companies necessitate the disclosure of Confidential Information to the Receiving Party’s Affiliates.
8. BREACH
8.1. The Receiving Party acknowledges that any breach of the undertakings in this Agreement may result in substantial damages for the Disclosing Party. The Receiving Party indemnifies the Disclosing Party against all damages, losses, liabilities, expenses, claims and costs that the Disclosing Party may sustain or incur as a result of any breach of the Receiving Party’s obligations under this Agreement.
8.2. The Receiving Party further acknowledges that damages may be inadequate compensation for any breach of this Agreement. The Disclosing Party shall be entitled to seek an interdict, specific performance or similar remedy against any conduct or threatened conduct which is or would be a breach of this Agreement.
9. RETURN OR DISTRUCTION OF INFORMATION
9.1. The Receiving Party undertakes immediately on Written demand by the Disclosing Party to
9.1.1. return all Confidential Information furnished to it and all copies and extracts thereof.
9.1.2. destroy all Written records and delete all computer records which are derived from, or which contain Confidential Information.
9.1.3. furnish a Written and Signed statement to the effect that upon such return and/or destruction, it has not retained in its possession or under its control, either directly or indirectly, any such Confidential Information or material.
10. GENERAL
10.1. Except for the rights and obligations of use and confidentiality in this Agreement, no other rights and obligations of any kind are assumed or implied against either Party by virtue of the Parties’ meetings or conversations with respect to the Confidential Information exchanged.
10.2. Any end user who onwards sales or distributes Fiscal Harmony’s software or any other product shall ipso facto be deemed as a Fiscal Harmony Reseller and shall immediately become bound by the Fiscal Harmony’s Reseller Terms and Conditions and other such applicable agreements.
10.3. Fiscal Harmony reserves the right to terminate its services and to take appropriate legal action against any end user who resales their software or product without prior notice and approval for such re sale.
11. NOTICES
11.1. Notices by Fiscal Harmony shall be tendered through its website, social media pages and broadcasted emails to all affected End Users.
11.2. Any Notice or communication to be given by either Party to the other shall be deemed to have been duly received, it is the responsibility of the End user to stay updated on the annual Policy updates.
11.3. End Users shall be entitled to change their address or contact details to any other address or number by giving adequate Notice to Fiscal Harmony, any notices sent by Fiscal Harmony to the pre-existing address, shall be considered duly served, received and binding.
12. DISPUTE RESOLUTION
12.1. The Parties shall initially attempt in good faith to promptly resolve any dispute arising out of or relating to this Agreement through negotiations between the respective Relationship Managers (or their duly authorised representatives) within 10 (ten) Business Days after the dispute was Notified by one to the other.
12.2. If the dispute is not resolved through negotiations as envisaged in clause 12.1, either or both of the Parties shall refer the matter to a panel consisting of representatives of at least General Management level of either Party for review or resolution. The aforementioned persons (or their duly authorized representatives shall meet and discuss the matter as soon as practicable after a matter is referred to them and, in any event, within 15 (fifteen) Business Days of the Referral.
12.3. If the dispute is not resolved as aforesaid within the aforementioned 15 (fifteen) Business Day period, either Party may elect on Written notice to the other Party to have the dispute finally resolved through arbitration, agreed on by both parties and failure agreement, appointed by the Commercial Arbitration Centre
12.4. The arbitration shall be held –
12.4.1. with only the Parties and their representatives present thereat;
and
12.4.2. at Harare Zimbabwe.
12.5. The decision of the arbitrator shall be final and binding on the Parties, who shall summarily carry out that decision and either of the Parties shall be entitled to have the decision made an order of any court with competent jurisdiction.
12.6. This clause shall not be interpreted to mean that either of the Parties shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
12.7. This clause shall survive the expiration, cancellation or termination of the Agreement.
13. AMMENDMENTS
No addition to or variation, consensual termination or novation of this Agreement (including this clause), and no waiver of any right arising from this Agreement or its breach or termination shall be valid or enforceable unless adequate Notice is given and End User consents to it.
14. LIMITATION OF LIABILITY
14.1. By viewing, using, or interacting in any manner with Fiscal Harmony Software, including banners, advertising, or pop-ups, downloads, and as a condition to allow its lawful use, End User waives all rights to claim for damages of any and all description based on any causal factor resulting in any possible harm, no matter how heinous or extensive, whether physical or emotional, foreseeable or unforeseeable, whether personal or commercial in nature. For circumstances where this provision is excluded, our maximum liability will not exceed the amount paid by you, if any, for using our website or service.
14.2. Additionally, you agree not to hold us liable for any damages related to issues beyond our control, including but not limited to, acts of God, war, terrorism, insurrection, riots, criminal activity, natural disasters, disruption of communications or infrastructure, labor shortages or disruptions (including unlawful strikes), shortages of materials, and any other events which are not within our control.
15. SEVERABILITY
If any part of this Agreement is found to be invalid or unenforceable, it shall be severed from the remainder of this Policy Agreement, which shall remain valid and enforceable.
16. APPLICABLE LAW
This Agreement shall be governed by the law of Zimbabwe.
17. INDEMNIFICATION
End User agrees that in the event it causes damage to Fiscal Harmony or a third party as a result of or relating to the use of Fiscal Harmony’s software, End user will indemnify us for, and, if applicable, defend us against, any claims for damages.
18. SURVIVAL
18.1. Any provision of this Agreement, which contemplates performance or observance subsequent to any termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement and continue in full force and effect.
18.2. Without limiting the generality of the aforesaid, the provisions of clauses 6 (Obligations of Receiving Party), 8 (Breach), 9 (Return or Destruction of Information) and 12 (Dispute Resolution) shall survive the termination of this Agreement.
19. FISCAL HARMONY DATA MOVEMENT POLICY
Data Fiscal Harmony collects from clients,
- Company information (trade name, vat numbers, TIN, B.P Number for registration purposes
- API keys and API secrets to access client accounting systems (EOP or Point of sale) that use them. Consent to install our plugins on user machines in situations where an install is required
- Invoices & credit notes containing items sold, quantities, accounting data, their tax allocations as well as information of Second Party’s Clients
- We store all of this data in an encrypted and access-controlled database
Processing that Fiscal Harmony does,
- We validate data from the client to ensure it meets the Zimra tax rules/guidelines and reject non-compliant invoices/credit note
- We show rejected data to client for a period of 30 days however said data is kept indefinitely
- We store all accepted and processed data indefinitely
- All system communications are encrypted between client and Fiscal Harmony
- The End user hereby accepts that all data received by Fiscal Harmony shall form part of Fiscal Harmony’s data base and shall become their property which they may deal with subject to the applicable laws of Zimbabwe.
Data Fiscal Harmony sends to Zimra
- All the data we receive from clients (invoices, credit notes, customer company details (for verification purposes) are encrypted and uniquely identifiable
- End-of-day summaries (traditionally known as a Z-report) showing total invoices/credits/tax amounts for every client
- All communications between Zimra and Fiscal Harmony are encrypted
Data we send back to the client
- Re-created invoice/credit note with a scannable QR code and all line items, with quantities and prices in PDF format.
- Access to such QR-code invoices/credit notes for up to 30 days however First Part keeps said information indefinitely
