Terms and Conditions for IBM Software Training Services
1. Parties
The Parties are the Service Provider (“Company”) and the Client as identified in the applicable Quotation or order confirmation, and those details are incorporated by reference into these Website Terms. The Service Provider and the Client are each a Party and together the Parties.
2. Definitions
- Authorised Use means the scope of rights that allow trainees to access and use the software for the training, including limits on users, locations, dates, functions and environments and/or any End User Licence Agreement, as set in a binding document issued by International Business Machines Corporation or its authorised reseller.
- Business Day means any day other than a Saturday, Sunday, or public holiday in the Republic of South Africa.
- Effective Date means the date on which the Client accepts the applicable Quotation in writing (including by email) with an express reference to that Quotation, or the date on which the Parties confirm acceptance in writing, whichever is later, unless a different effective date is expressly stated in the Quotation. For each Statement of Work, the Effective Date for that Statement of Work is the date stated on that schedule when agreed in writing by both Parties.
- International Business Machines Corporation (IBM) means International Business Machines Corporation and its affiliates.
- IBM Document means a written instrument issued by International Business Machines Corporation or its authorised reseller that sets or confirms Authorised Use for the relevant software. Examples include a Transaction Document, a Proof of Entitlement, a quote, a purchase order, an invoice, or licence information that states the permitted use.
- Materials means the training manuals, slides, exercises, examples, datasets, notes, recordings, and deliverables created or provided by the Service Provider under this Agreement, excluding any Client Content.
- Proof of Entitlement means International Business Machines Corporation’s record of the licence types and quantities that a licensee owns and the scope of permitted use.
- Services means the professional training services described in the applicable Statement of Work, including the scope, topics, duration, mode of delivery, number of trainees, deliverables, and any related activities expressly stated in that Statement of Work. Unless otherwise specified, Services do not include providing software, licence keys, or access credentials, nor implementation, configuration, support, or any work outside the stated scope.
- Statement of Work means a document or schedule agreed in writing by both Parties that describes a specific training engagement, including dates, delivery mode, seat counts and any special operational terms. Fees, taxes, and payment terms appear in the Quotation.
- Trainee means any individual who attends the training, in person or online.
3. Scope of Services
The Service Provider will provide professional training Services on the software identified in the applicable Statement of Work. The Service Provider will use only Materials authored by the Service Provider and will not use or distribute official International Business Machines Corporation training content, manuals, labs or datasets. The Service Provider will not provide International Business Machines Corporation software, licence keys, access credentials or hosting
4. Client-Provided Software Rights
The Client is solely responsible for procuring, maintaining, and evidencing all rights and licences that are necessary for Trainees to access and use the software for the selected training, including any rights that expressly allow training or laboratory use. If Trainees will have hands-on use, the Client must ensure that each Trainee is covered by a valid entitlement or by a written International Business Machines Corporation Document that authorises such use for the course dates, locations and seat counts. If the Client has not provided written evidence of Authorised Use that permits trainee hands-on training for the agreed dates, locations and seat count, the Services will be delivered as instructor-led demonstrations only using the Service Provider’s licensed copy, with no trainee access, and the Service Provider may postpone or cancel until such evidence is provided. Before scheduling, and on request at any time, the Client will confirm in writing the number of Trainees, the dates and locations, the coverage model and will provide copies or references of the relevant International Business Machines Corporation Document or Proof of Entitlement.
5. Data, Systems and Protection of Personal Information
Only non-production, dummy, or sample data may be used in exercises and demonstrations. No live systems will be used. If the Client requires the use of personal information as defined in the Protection of Personal Information Act, 2013, the Parties will first sign any required agreement that sets out purpose, controls, security safeguards, cross-border transfers, data subject requests and deletion or return on completion. The Client remains responsible for its systems, networks, datasets, and access controls. The Service Provider will not connect to Client production systems for the training.
6. Consumer Protection Act Status
The Parties record their shared intention that this Agreement is a business-to-business supply. If the Client is a juristic person with an asset value or annual turnover that equals or exceeds the statutory threshold under the Consumer Protection Act, 2008, the Consumer Protection Act does not apply. If the Consumer Protection Act applies, any term that conflicts with that law is limited to the minimum extent needed to comply and the balance remains in force; cancellation charges will not exceed a reasonable amount having regard to time before the session, unrecoverable costs and resale efforts; any unusual or onerous terms have been drawn to the Client’s attention and accepted; and the Service Provider’s liability is limited to the extent the law permits, including exclusion of indirect loss and a cap equal to the fees paid for the relevant training.
7. Delivery, Rescheduling, and Cancellation
Delivery mode is set in the Statement of Work. The Client may reschedule once without charge on at least ten Business Days’ written notice. With fewer than ten Business Days’ notice, a rescheduling fee of fifty per cent of the fee applies. The Client may cancel with at least fifteen Business Days’ written notice, subject to payment of actual, reasonable, non-refundable costs incurred. If the Client cancels with fewer than fifteen Business Days’ notice, the Client will pay seventy-five per cent of the fee plus any non-refundable costs. The Service Provider may postpone or cancel without liability if the licence scope or evidence under clause 4 is missing or unclear, if export or sanctions concerns arise, or if a safety or security risk exists. The Service Provider will act in good faith to offer a new date.
8. Fees, Expenses and Taxes; Invoicing, Payment, Interest; No Set-off
All fees, taxes, and payment terms are governed by the provisions stated in the Quotation. The Service Provider may invoice any approved travel or out-of-pocket expenses at cost, provided they have been approved in writing by the Client in advance. Payments must be made in accordance with the timelines and terms specified in the Quotation. Interest accrues on overdue amounts as stated in the Quotation. If the Quotation is silent, interest accrues at the rate prescribed from time to time under the Prescribed Rate of Interest Act, 1975, until paid in full. The Client may not withhold or set off any amount due, except for sums that the Client disputes in good faith by written notice stating the reasons for such dispute.
9. Intellectual Property and Use of Materials
Ownership. The Service Provider owns all intellectual rights in the Materials, excluding Client Content.
No licence to the Client. The Service Provider grants the Client no licence or right in the Materials. The Client may use the Materials only during live delivery of the training to follow the session. No copying, recording, distribution, adaptation, or reuse is permitted unless a separate written licence is signed by both Parties.
No implied rights. All rights in the Materials are reserved. No rights arise by implication, estoppel, or course of dealing.
10. Third-Party Software and Restrictions
No commercial information technology services, hosting or time sharing are authorised under this Agreement using the software, beyond the Authorised Use that the Client has procured. The Client will ensure that all access and use by Trainees complies with International Business Machines Corporation licensing terms and the applicable International Business Machines Corporation Document.
11. Confidentiality
“Confidential Information” means non-public information disclosed by a Party that is marked or reasonably understood to be confidential. Each Party will use the other Party’s Confidential Information only to perform this Agreement and will protect it with reasonable care. Confidential Information does not include information that is publicly available without breach, already known, independently developed or obtained lawfully from a third party. A Party may disclose Confidential Information if required by law, after giving reasonable notice to the other Party if lawful.
12. Warranties and Disclaimers
The Service Provider warrants that it will perform the Services in a professional and workmanlike manner using personnel with appropriate skills and experience. The Service Provider does not warrant any software or outcomes of the training. Except for the express warranty in this clause, the Services and Materials are provided “as is” to the maximum extent permitted by South African law.
13. Indemnities
Client indemnity. The Client will indemnify and hold the Service Provider harmless from any third-party claim, penalty or cost arising from missing, expired or inadequate licences, from Trainee access or use that exceeds Authorised Use, or from the Client’s breach of clause 4, clause 5 or clause 11.
Service Provider indemnity. The Service Provider will indemnify and hold the Client harmless from any third-party claim alleging that the Materials, as provided, infringe intellectual property rights in the Republic of South Africa, except for claims that arise from Client Content or from modifications or use not authorised by the Service Provider.
Procedure. The indemnified Party must give prompt written notice, reasonable cooperation and full control of the defence to the indemnifying Party, subject to the indemnified Party’s right to participate at its own cost.
14. Limitation of Liability
Neither Party is liable for indirect, incidental, special, punitive or consequential damages, including loss of profit, revenue, goodwill or data, even if advised of the possibility. Except for payment obligations, breaches of confidentiality, and indemnity obligations, each Party’s total liability under this Agreement is limited to the fees paid or payable by the Client for the training that gave rise to the claim. Multiple claims do not expand this cap.
15. Compliance, Export Controls and Sanctions
Each Party will comply with applicable South African laws and any mandatory foreign laws that apply to the training. The Client is responsible for ensuring that Trainees and locations comply with export control and sanctions laws that apply in South Africa and in any relevant foreign jurisdiction. The Service Provider may refuse performance where doing so would breach applicable export, sanctions or trade laws.
16. Recordings
No Party may record, in any form, the training without the other Party’s prior written consent. If a recording is approved, the Statement of Work will set the scope and permitted use. A recording does not transfer ownership of Materials.
17. Personnel and Subcontracting
The Service Provider may use subcontractors and remains responsible for their work.
18. Non-Solicitation
During the term and for twelve months after the last training date, neither Party will solicit for employment any employee of the other Party who was directly involved in the training, except through general advertisements.
19. Term and Termination
This Agreement begins on the Effective Date and ends automatically on completion of the last training session under the final Statement of Work, unless terminated earlier under this clause. Either Party may terminate this Agreement on thirty days’ written notice. Any scheduled Statement of Work may be terminated only under clause 7 and the Statement of Work terms. Either Party may terminate this Agreement or a Statement of Work for material breach not cured within ten Business Days after written notice. On termination, the Client will pay for Services performed and non-refundable costs incurred through the effective date of termination. Clauses that by their nature should survive will survive, including clauses 4, 5, 7, 8, 9, 11, 12 and 21.
20. Notices and Service
Notices must be in writing and delivered by hand, courier, or email to the notice details set out in the applicable Quotation and are effective upon receipt. Each Party chooses its physical address stated in the Quotation as its domicilium citandi et executandi for service of legal process in South Africa, subject to change on ten Business Days’ written notice. For clarity, service of legal process must occur at the domicilium physical address unless the Parties expressly agree otherwise in writing.
21. Governing Law and Dispute Resolution
This Agreement is governed by the laws of the Republic of South Africa. The Parties will first attempt to resolve any dispute by good faith negotiation for ten Business Days. If not resolved, the dispute will be referred to binding arbitration in Cape Town, South Africa, under the rules of the Arbitration Foundation of Southern Africa, by one arbitrator appointed in accordance with those rules. The language will be English. Either Party may seek urgent interim relief from a South African court with jurisdiction.
22. General
Independent contractors. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
Assignment. Neither Party may assign this Agreement without the other Party’s consent, except to a successor of all or substantially all business or assets, provided the assignee is not a competitor and agrees in writing to be bound by this Agreement.
Entire agreement. These Website Terms together with the applicable Quotation and any Statement of Work constitute the entire agreement between the Parties on the subject matter and supersede all prior proposals, quotations, negotiations, understandings, and communications, whether written or oral. No terms on, or referenced in, any purchase order or other document will add to or vary this agreement unless the Parties expressly agree in a written amendment signed by both Parties.
Order of precedence. If there is any conflict or inconsistency, the order of precedence is: first, the main body of the Quotation; second, the Statement of Work; third, these Website Terms; fourth, any Client Licence Authorisation Confirmation agreed by the Parties; fifth, any purchase order or equivalent ordering document agreed by the Parties; and sixth, any other document expressly referenced in writing by the Parties.
Amendment. Any amendment must be in writing and signed by both Parties.
Severability. If any provision is invalid, the remainder will continue in effect and the Parties will substitute a valid provision that most closely reflects the intent.
No waiver. A failure to enforce a provision is not a waiver.
Counterparts and electronic signature. Where signatures are used, the Agreement may be signed in counterparts and by electronic signature under the Electronic Communications and Transactions Act, 2002.
23. Updates and Version Control
The Service Provider may update these Website Terms from time to time. The version in force on the date the Client accepts the Quotation will apply to that training engagement. Last updated: [05/11/2025].