Terms and conditions

SOFTWARE LICENSE TERMS AND CONDITIONS 

1 INTERPRETATION

In this agreement -

1.1 clause headings are for convenience and shall not be used in its interpretation;

1.2 unless the context indicates a contrary intention an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa and the singular includes the plural and vice versa;

1.3 the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings;

1.3.1 "agreement" - this agreement and all annexures and addenda hereto from time to time, all as may be amended from time to time;

1.3.2 "business day" - any day other than a Saturday, Sunday or a public holiday recognised in the Republic of South Africa;

1.3.3 "hardware platform" - the licensee or its nominee's computer system existing as at the date of installation of the software by TC, consisting, inter alia, of all hardware, servers and operating systems on which the software is to be installed and operated; 

1.3.4 "intellectual property" - all intellectual property of every nature whatever relating to the software, including the trade marks and TC's right, title and interest in and to all trade secrets, logos, systems, methods, marks, trade names, styles, insignias, designs, patents and copyright relating to the software, whether registered or not;

1.3.5 "license" - the license to use the software granted in terms of 3;

1.3.6 "signature date" - the date of signature of this agreement by TC and the licensee;

1.3.7 "software" - the software programs developed and owned by TC as more fully described in the agreement hereto, it being specifically recorded and agreed that the software shall, for the purposes of this agreement include - 

1.3.7.1 all upgrades, enhancements, new versions and modifications to the software from time to time; and 

1.3.7.2 the intellectual property; and 

1.3.7.3 the user documentation;

1.3.8 "the premises" - the premises where the software is to be installed, as set out in the agreement hereto;

1.3.9 "trade marks" - any trade marks, marks, logos, designs and trade names owned and/or used by TC from time to time in relation to the software, whether registered or not;

1.3.10 "user documentation" - instruction manuals, user guides and other information in respect of the use of the software as supplied by TC to the licensee together with the software, either in printed or machine-readable form and as may be amended from time to time;

2 INTRODUCTION

2.1 TC has developed and is the owner of the software.

2.2 TC has agreed to grant a non-exclusive and non-transferable license to the licensee to use the software and to render the services to the licensee, on the terms and conditions set out herein.

3 GRANT OF LICENSE

TC hereby grants to the licensee a non-exclusive and non-transferable license to use the software for the duration of this agreement.

4 DURATION AND TERMINATION

at the end of the contract the following will apply:

Subject to 9 and 10, this agreement shall commence on Effective Date and shall continue for a minimum of 12 months thereafter terminable by either party by giving not less than 3 calendar months of written notice of termination to the other, which notice may be given at any time. 

5 LICENSE RESTRICTIONS

The licensee agrees that it will not itself or through any third party -

5.1 copy, reproduce, translate, adapt, vary, modify, sell, lease, license, sub-license, encumber or in any other way deal with the software or any component of the software;

5.2 de-compile, disassemble or reverse engineer any portion of the software;

5.3 write and/or develop any program based on the software and/or user documentation;

5.4 provide, disclose, divulge or make available to or permit use of the software otherwise that in terms of this agreement;

5.5 use the software at premises other than the premises.

6 LICENSEE'S OBLIGATIONS

The licensee undertakes that for the duration of this agreement it shall -

6.1 immediately bring to the attention of TC any improper or wrongful use or infringement of the intellectual property rights which come to the notice of the licensee and shall use every effort to safeguard such intellectual property rights and interests of TC;

6.2 not make any warranty or representation in respect of the software other than those authorised in writing by TC or given in respect of the software in authorised advertising or user material, and the licensee hereby indemnifies TC and its owners against any loss, damage (whether direct, indirect or consequential), expense or liability which TC may sustain pursuant to a breach of the provisions of this clause;

6.3 not make the software available to any third party other than the licensee's employees who are authorised to use the software on the terms of this agreement;

6.4 assume responsibility for the supervision, management and control of the software;

6.5 replace the current version of the software with the updated or upgraded version forthwith upon receipt thereof;

6.6 at its own cost, provide its own hardware, software, server/s and all other equipment necessary to allow the installation and implementation of the software;

6.7 provide TC with access to its hardware for the purposes of monitoring the software and the performance of the licensee's obligations hereunder;

7 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION

7.1 Intellectual property rights

Both parties acknowledge the intellectual property rights of the other party whether registered or not.

7.2 Confidentiality

Both parties agree to keep confidential all information concerning the other party’s business or its ideas, products, processes, data, customers, correspondence, business relationships or services that could be considered to be “confidential information”. “Confidential information” is any information belonging to or in the possession or control of a party that is of a confidential, proprietary or trade secret nature and that is furnished or disclosed to the other party. Confidential information will remain the property of the disclosing party, and the receiving party will not acquire any rights to that confidential information.

7.3 Court orders

If the receiving party receives a Court Order to divulge any confidential information belonging to the disclosing party, then the receiving party is permitted to release such information to the court in accordance with any Court Order so served.

7.4 Destruction of data and records or return on termination

Upon termination of this Agreement, the receiving party, at the option of the disclosing party, will return or destroy all confidential information belonging to the other party. 

8 WARRANTIES AND INDEMNITY

8.1 No warranties, whether express, implied in law or residual, including, without limitation, the warranties of merchantability and fitness for a particular purpose, are made by TC.

8.2 TC shall not be liable to the licensee or any third party or any loss, liability, damage or expense of whatever nature which may be suffered by the licensee or any third party as a result of or which may be attributable directly or indirectly to the use by the licensee of the software in terms of this, save where such loss, liability, damage or expense is caused by or attributable to the gross negligence of TC. 

8.3 TC's maximum aggregate liability for any loss, liability, damage or expense that may arise in respect of this agreement or otherwise will be limited to the cost of replacing the software (on condition that the licensee notifies TC in writing of such defect immediately on such defect occurring in the software) within a reasonable period after the written notification of any defects in the software by the licensee.

9 TRADEMARK INFRINGEMENT

9.1 The licensee shall forthwith notify TC if any claim or demand is made or action brought against it for infringement or alleged infringement of any of the intellectual property rights.

9.2 TC shall, at its own expense, conduct any litigation arising from any claim, demand or action brought and all negotiations for settlement.

9.3 The licensee shall afford to TC all necessary assistance for the purpose of contesting any such claim or demand made or action brought for infringement or alleged infringement of any intellectual property right in connection with the software and the user documentation.

9.4 In the event that such an infringement has occurred TC shall, at the sole discretion of TC either procure for the licensee the right to continue using the software, or, replace or modify same, so that there is no further infringement.

10 SUMMARY TERMINATION

10.1 Notwithstanding any other provision of this agreement either party ("aggrieved party") shall have the right to terminate this agreement summarily upon the occurrence of any of the following events -

10.1.1 if the defaulting party compromises or attempts to compromise generally with its creditors;

10.1.2 the placing of the defaulting party under a winding-up order or judicial management or similar disability whether provisional or final, voluntarily or compulsorily;

10.1.3 the defaulting party allowing any default judgment to be entered against it and failing within twenty-one days of becoming aware of such judgment -

10.1.3.1 to satisfy same; or

10.1.3.2 to apply for it to be set aside, and such judgment not subsequently being set aside within a reasonable time.

10.2 The aggrieved party shall exercise its rights to summarily terminate this agreement pursuant to 9.1 (and without affecting its other remedies in law) by giving written notice to that effect to the defaulting party, which notice shall specify the event/s giving rise to termination and the effective date of termination, which date may not precede the date of the defaulting party's receipt of such notice.

11 BREACH

Notwithstanding any other provision of this agreement, should either party ("the defaulting party") commit a material breach of any provision of this agreement and fail to remedy such breach within twenty-one days of receiving written notice from the aggrieved party requiring it to do so, then the aggrieved party shall be entitled, without prejudice to its other rights in law, to terminate this agreement or to claim immediate specific performance of all of the defaulting party's obligations whether or not due for performance, in either event without prejudice to the aggrieved party's right to claim damages.

12 RIGHTS ON TERMINATION

Notwithstanding any other provision of this agreement, on termination of this agreement for any reason whatsoever ("termination date"), the licensee shall return the software and all components thereof, including all upgrades, amendments and enhancements thereto, new materials and all user documentation to TC and shall furnish TC with a certificate, signed by a duly authorised officer of the licensee confirming the return of the items.

13 CESSION AND ASSIGNMENT

The licensee shall not be entitled to cede, assign or transfer all or any of its rights and/or obligations in terms of this agreement, save with the prior written consent of TC which shall not be unreasonably withheld.

14 RELATIONSHIP

Nothing in this agreement shall create any relationship of agency, partnership or joint venture between TC and the licensee and TC shall not hold itself out as the agent or partner of the licensee or as being in a joint venture with the licensee.

15 DOMICILIUM AND NOTICES

15.1 Each of the parties chooses domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement as follows -

15.1.1 Domicilium Address

15.1.2 the licensee-See agreement

15.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante and/or to vary its telefacsimile number.

15.3 Any notice given and any payment made by either party to the other ("the addressee") which 

15.3.1 is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;

15.3.2 is posted by prepaid registered post to the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the tenth day after the date of posting.

15.3.3 is sent by email during the normal business hours of the addressee to the addressee's domicilium for the time being, shall be presumed, until the contrary is proved by the addressee, to have been received on the first business day succeeding the date on which the telefacsimile was transmitted.

16 FORCE MAJEURE

16.1 If either party is prevented from carrying out any of its obligations as a result of an act of G-d, strikes, fire, riot, war (whether declared or not) embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, any court order, any requirements of any authority or other competent local authority, or any other circumstances whatsoever which are not within the reasonable control of such party, such party will be deemed to have been released from its obligations to perform under this agreement to the extent that and for so long as it is so prevented from performing, this agreement will be deemed to have been suspended to such extent and for the period concerned.

16.2 As soon as a party becomes aware that an act of force majeure is likely to cause a suspension of this agreement, it shall give notice in writing to the other party, estimating the approximate duration of such suspension. The estimate shall not be binding and the party claiming force majeure shall -

16.2.1 use its best endeavors to terminate the circumstances giving rise to the force majeure; and

16.2.2 give notice to the other party as soon as the force majeure ceases to operate.

17 APPLICABLE LAW AND JURISDICTION

17.1 Save as otherwise provided herein, the parties hereby consent and submit to the non-exclusive jurisdiction of the Western Cape Division of the High Court of the Republic of South Africa for the purpose of all or any legal proceedings arising from or concerning this agreement.

17.2 This agreement (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the parties in terms of and arising out of the conclusion, breach and termination of the provisions of this agreement) shall be interpreted and governed in all respects by the laws of the Republic of South Africa.

18 ARBITRATION

18.1 In the event of any dispute or difference arising between the parties relating to or arising out of this agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this agreement, the dispute shall in the first instance be referred to the party’s senior executives for resolution. In the event of the dispute not having been resolved within seven business days of the date of such referral (or such longer period as the parties senior executive may agree in writing), the dispute or difference will be referred for arbitration to the Arbitration Foundation of South Africa ("AFSA") in terms of AFSA's arbitration rules for the time being in force.

18.2 This clause shall constitute each party's irrevocable consent to the arbitration proceedings, and no party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause.

18.3 Each of the parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings-

18.3.1 shall be final and binding on each of them; and

18.3.2 will be carried into effect; and

18.3.3 be made an order of any court to whose jurisdiction the parties are subject.

18.4 Notwithstanding the foregoing, nothing in this clause shall be construed as precluding either party from applying to court for a temporary interdict or other relief of an urgent nature, pending the decision of the award of the arbitrator in terms of this clause.

18.5 In the event that this agreement should terminate, for any reason whatsoever, then the provisions of this 18 shall survive such termination.

19 GENERAL

19.1 This agreement constitutes the sole record of the agreement between the parties in regard to the subject matter thereof. Neither party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the parties or their duly authorised representatives.

19.2 No addition to, variation, or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.

19.3 No indulgence which either party may grant to the other shall constitute a waiver of any of the rights of the grantor.

19.4 All provisions of this agreement shall be independent of each other and deletion from or the invalidity of any such provision or schedule shall not affect the remainder of this agreement.

19.5 If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this agreement which shall continue to be of full force and effect.