HOTROD END USER LICENCE AGREEMENT (19-08-2020)
THIS AGREEMENT is entered into between Panoptix (PTY) LTD, with registration number 2019/355296/07, a private company duly incorporated in accordance with the laws of the Republic of South Africa, (“the Licensor”); and you (“the Licensee”), and governs your use of the Software in terms of the Licence. By clicking the appropriate acceptance button and/or utilising the Software (or any portion thereof), the Licensee explicitly accepts and agrees that he or she has read, understood and agrees to be bound by all the terms and conditions set out herein. If the Licensee does not agree to these terms, the Licensee should not use the Software.
- INTERPRETATION AND DEFINITIONS
In this Agreement:
1.1 clause headings are for the purposes of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify any of the provisions of this Agreement;
1.2 a reference to a Party in a document includes that Party’s successors in title and permitted assigns;
1.3 unless the context clearly indicates otherwise, words importing natural persons shall include a reference to juristic personae and vice versa; a reference to one gender includes a reference to the other two genders; a reference to the singular includes a reference to the plural and vice versa;
1.4 all of the schedules and/or annexes are incorporated herein and shall have the same force and effect as if they were set out in the body of this Agreement;
1.5 words and/or expressions defined in this Agreement shall bear the same meanings in any schedules and/or annexes hereto which do not contain their own defined words and/or expressions;
1.6 when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case, the last day shall be the next Business Day;
1.7 where the day on or by which anything is to be done is not a Business Day, it shall be done on or by the first Business Day thereafter;
1.8 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definitions clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
1.9 where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail;
1.10 words and/or expressions defined in any particular clause in the body of this Agreement shall, unless the application of such word and/or expression is specifically limited to that clause, bear the meaning so assigned to it throughout this Agreement;
1.11 the rule of construction that, in the event of ambiguity, the agreement shall be interpreted against the Party responsible for the drafting thereof, shall not apply;
1.12 the use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example;
1.13 a reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Sate and as amended or re-enacted from time to time thereafter;
1.14 the expiration or termination of this Agreement shall not affect such of its provisions as expressly provide that they will continue to apply after such expiration or termination or which of necessity must continue to apply after such expiration or termination;
1.15 any communication which is required to be “in writing” shall include a communication which is written or produced by any substitute for writing or which is partly written and partly so produced, and shall include printing, typewriting, lithography, fax or electronic mail or any form of electronic communication or other process or partly one and partly another; and
1.16 unless the context indicates a contrary intention, the following words and expressions shall bear the meanings assigned to them hereunder and cognate words and expressions shall bear corresponding meanings:
“Agreement” this end user licence agreement, which includes any schedules, annexures, exhibits and attachments hereto.
“Business Day” any day other than a Saturday, Sunday or officially recognised public holiday in South Africa
“Copyright” the full and complete copyright embodied in the Software
“Documentation” all the operating manuals, user instructions and technical literature, including, without limitation, requirement definition specifications, systems specifications, design documents, test procedures, training manuals in relation to the Software that will enable a reasonably skilled person or developer to use, understand, reproduce and maintain the Software, and which is associated with or useful in the utilisation of the Software
“Effective Date” the Signature Date of this Agreement, alternatively, the date on which the Licensee clicks to accept the terms and conditions of this Agreement or otherwise utilises the Software, whichever occurs first in time
“Intellectual Property Rights” any and all tangible and intangible rights, title and interest in and to: works of authorship, including but not limited to Copyright, moral rights and all derivative works thereof, Marks, Literary Works, trademarks and trade names, trade secrets and know-how, gets-ups, patents, designs, algorithms and other industrial property, the Source Code, the Software and all other intellectual property rights of whatsoever nature and in whatsoever form whether arising by operation of law, contract, licence, or otherwise, including all registrations, initial applications, renewals, extensions, continuations or reissues thereof now or hereafter in force, and, all other intellectual property rights of a similar or corresponding character whether or not registered or capable of registration and whether subsisting in the Territory or any other part of the world together with all or any goodwill relating thereto
“Licence” a limited, non-exclusive, revocable, non-transferable, non-assignable and non-sub-licensable licence granted by the Licensor to the Licensee in the Territory
“Licence Fee” the applicable fees to be paid (whether on an annual or monthly basis) excluding Vat and disbursements, by the Licensee to the Licensor and/or the Reseller as communicated to the Licensee, in exchange for the grant of the Licence
“Literary Works” any and all written material and Documentation that is created by or on behalf of the Licensor pursuant to the development of the Software
“Marks” proprietary trademarks, service marks, trade names, logos, and symbols owned by the Licensor
“Module” each specific and separate programme contained in the Software, pertaining to a different aspect or feature of the Software, which together form the complete system but which may operate as stand-alone components, and which may be licensed together or separately
“Parties” collectively, the Licensee and the Licensor, and “Party” means either one of them, depending upon the context
“Reseller” the authorised reseller duly appointed by the Licensor, to resell the Software to the Licensee
“Sign” the handwritten signature or advanced electronic signature of the duly authorised representative of a Party and “Signed”, “Signing” and “Signature” shall have a corresponding meaning
“Signature Date” the date of signature of this Agreement
“Software” the software system/s developed and/or licensed by the Licensor or further developed thereunder, including all development tools, frameworks and methodologies applicable, computer programs, the Modules, and Literary Works, but specifically excluding the Source Code, and which Software may be updated, amended and/or modified from time to time at the instance of the Licensor
“Source Code” any collection of computer instructions, written using a human-readable programming language, usually as ordinary text
“Telemetry Data” any remotely transmitted monitoring, license, license activation, usage, bug report or error data
“Territory” the Republic of South Africa or any other territory agreed in writing by the Licensor and/or Reseller
“Writing” any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents, fax transmissions and/or information or data in electronic, mobile, magnetic, digital or recording disc form, and “Written” and “Write” shall have a corresponding meaning
2.1 The Licensor owns or has developed from third party systems, the Software and the Licensee wishes to obtain and use a Licence to the Software.
2.2 The Licensor and the Licensee hereby agree to the terms of this Agreement.
2.3 By signing the Agreement hereto, alternatively, clicking on the “accept” button and/or taking any action to indicate acceptance, or use the Software, the Licensee hereby agrees to the terms of this Agreement. If the Licensee does not agree to all of the terms of this Agreement, click the “cancel” button, discontinue the set-up and installation or discontinue use of the Software.
This Agreement shall commence on the Signature Date and shall endure in perpetuity for such time as the Licensee continues to have the right to access the Licence, or unless terminated by the Licensor as set forth herein. The Licensor may terminate this Agreement upon the breach by the Licensee of any term hereof subject to 7 (seven) days’ prior written notice to be sent by the Licensor. Any termination of this Agreement shall forthwith terminate the Licence granted hereunder. Upon termination of this Agreement and/or Licence for any reason, the Licensee irrevocably agrees to, and shall, destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software and Documentation and, at the request of the Licensor, shall so certify to the Licensor that such actions have been performed.
- GRANT OF LICENCE
4.1 Subject to payment of the Licence Fee and with effect from the Effective Date; the Licensor hereby grants the Licence to the Licensee, and which the Licensee hereby accepts to use, the Software in accordance with the Documentation and in accordance with the terms set out herein.
4.2 The Licensor shall provide all reasonable and necessary updates, upgrades and/or new versions of the Software to the Licensee, provided the Licence Fees have been duly paid. The Licensor will provide all new versions commercially available during the 12 (twelve) month period for which the Licence Fees have been paid. Should the Licensee utilise the Software on a monthly payment basis, it shall be entitled to commercially available upgrades during the period in which the Licence is paid for and active.
4.3 This Agreement and the provision of the Licence hereunder, will continue to apply in all respects to any new versions of the Software.
In consideration for the Licence, the Licensee shall pay the applicable Licence Fees to the Licensor or the Reseller. The Licensee agrees to pay the Licensor or the Reseller, without deduction or set-off, within 7 (seven) days from the date such invoice is received. The Licensor has the right to amend the Licence Fees from time to time.
- LIMITED WARRANTIES BY THE LICENSOR
6.1 The Licensor warrants that:
6.1.1 ownership of the Software vests in the Licensor, alternatively the Licensor possesses the right to grant the Licence to the Licensee to use the Software in accordance with this Agreement and that such use will not infringe the Intellectual Property Rights of any third party;
6.1.2 it provides the Licence in accordance with applicable laws and regulations;
6.1.3 for the Licensee’s benefit only, and subject to full payment of the applicable Licence Fees, the media on which the Software is provided will be materially free from defects in material and workmanship under normal use for a period of 90 (ninety) days from the date on which the Licence was granted. The Licensor does not warrant that the Software shall be uninterrupted, that the operation of the Software will be error free or that it shall meet the Licensee’s requirements. This limited warranty is void if:
220.127.116.11 failure of the Software has resulted from accident, abuse, unauthorised use or misapplication by the Licensee or any third party;
18.104.22.168 any modifications were made to the Software by the Licensee or any third party;
22.214.171.124 the Software has not been properly installed, operated, repaired or maintained in accordance with the instructions supplied by the Licensor and/or Reseller; or
126.96.36.199 the Software was used on or in conjunction with hardware or software other than hardware and software with which the Software was designed to be used as described in the Documentation.
6.2 In the event of a breach of this warranty, the Licensor's sole obligation shall be, at its sole discretion, to repair or replace the Software or component thereof that does not meet the foregoing limited warranty, free of charge. Any repaired or replaced component will be warranted for the remainder of the original warranty period or 30 (thirty) days, whichever is longer. Warranty claims must be made within 90 (ninety) days of the purchase of the Licence. Except for the warranty set forth in clause 6.1.3, the Software is licensed "as is", and the Licensor hereby disclaims any and all other warranties, whether express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, performance, accuracy, reliability or non-infringement. No Licensor’s distributor, channel partner, Reseller, agent or employee is authorised to make any modifications, extensions or additions to this warranty. This disclaimer of warranty constitutes an essential part of this Agreement.
- LICENSEE’S GENERAL OBLIGATIONS
7.1 The Licensee warrants and agrees that it shall:
7.1.1 operate the Licence in accordance with the terms of this Agreement and with all reasonable due care;
7.1.2 ensure that all employees and third parties utilising the Licence on behalf of the Licensee, are advised of the terms, conditions and obligations applicable to them in terms of the provisions of this Agreement and furthermore, not remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Licensor or its affiliates, partners, suppliers;
7.1.3 not use the Software for creating a product, software or service that is, directly or indirectly, competitive with or in any way a substitute for any service, product or software offered by the Licensor;
7.1.4 ensure that it does not grant any third party any right to use the Software, whether or not for any consideration. This Agreement allows the Licensee to run and use the Software on its own internal network, subject to node installation and volume thresholds as may be indicated in the purchase order documentation with the Reseller;
7.1.5 not, and may not permit or aid any third party to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute, place the Software onto a server so that it is accessible by third parties via a public network or otherwise decrypt or disseminate all or any part of the Software, or extract or attempt to derive the Source Code from the object code of the Software. The Software is licensed as a single product; the Licensee may not separate its component parts for use on more than one computer or for any other purpose;
7.1.6 ensure it does not make any modification, adaptation, improvement, enhancement, translation or create derivative works based on the Software;
7.1.7 not assign, sublicense, transfer, pledge, lease, rent, resell, distribute, grant or share its rights under this Agreement. Any attempted transfer in contravention of this Agreement shall be null and void and of no force or effect. Any data processed, shared, transferred or otherwise used by the Licensee, including any of its users, is its sole responsibility;
7.1.8 comply with applicable laws, rules and regulations including data protection laws and regulations;
7.1.9 verify that no unauthorised users have access to its data;
7.1.10 ensure it is and acknowledges to be solely, responsible to back up its data;
7.1.11 provide the Licensor with reasonable access to the premises (if applicable) of the Licensee to allow for the Licensor to comply with its obligations in terms of this Agreement;
7.1.12 allow the Licensor access during normal working hours, to the Licensee’s books, records and computer systems specifically related to the use of the Software, during the term of this Agreement and for 2 (two) years after its termination, on reasonable advance notice to the Licensee, for purposes of inspection and audit by the Licensor or its authorised representatives, as the case may be;
7.1.13 have the right to use and to continue using the Software under this Agreement subject to the Licensor and/or Reseller receiving full and timeous payment of all amounts due under this Agreement, and notwithstanding any provisions to the contrary set out herein, the Licensor shall have the right to prevent the Licensee from using the Software if the Licensee is in arrears in regard to its payment obligations; and
7.1.14 provide the Licensor with notifications of any issues or concerns or disputes, where necessary, and to take commercially reasonable measures to ensure that no malicious software is introduced into their systems which may affect the Software.
7.2 Neither the Software nor any part of it has been tailored to meet the individual requirements of the Licensee.
- LIABILITY AND INDEMNITY
8.1 Notwithstanding anything to the contrary contained herein, the Licensor's maximum aggregate liability to the Licensee or any third party for any direct loss, cost, liability or damage resulting from any breach, claims, demands or actions arising out of or relating to this Agreement, shall in no event exceed the Licence Fees actually paid to the Licensor or Reseller in connection with the Licence granted to the Licensee hereunder, if any, in the 12 (twelve) months preceding the cause of action.
8.2 Under no circumstances whatsoever, whether under delict (tort), contract or otherwise, shall the Licensor or its suppliers, resellers or agents, be liable to the Licensee or any other person for any indirect, incidental, consequential, special, punitive or exemplary damages, including, without limitation, damages for loss of goodwill, computer failure or malfunction, lost profits, loss, inaccuracy or corruption of data or interruption of use or any and all other commercial damages or losses, even if the Licensor has been advised of the possibility of such damages.
8.3 The Licensee acknowledges that the Licensor shall not be liable to the Licensee for any delay failure, breakdown, damage, loss, costs, claim, penalty, fine or expense arising from:
8.3.1 the use of the Software other than in accordance with this Agreement and any instructions that may be issued by the Licensor to the Licensee, from time to time;
8.3.2 operator error on the part of the Licensee, or any fault in the hardware, third party software or software supplied to or obtained by the Licensee from any party other than the Licensor;
8.3.3 the intentional or negligent act or omission of the Licensee or any third party;
8.3.4 the acts or omissions of any telecommunications authority or a supplier of telecommunications services; and/or
8.3.5 any other cause, including the failure or fluctuation of electrical supplies, accidents or natural disasters.
8.4 The Licensee hereby indemnifies and holds the Licensor harmless against any losses, costs, damages, penalties or claims suffered, incurred or made against the Licensor which arises from or is in connection with, any failure or breach by the Licensee to fully comply with its obligations as set out in this Agreement.
- FURTHER RIGHTS OF THE LICENSOR
9.1 To the extent permitted by law, the Licensor shall be entitled, on reasonable notice to the Licensee, to:
9.1.1 change, amend and/or adjust the technical specification of the Software;
9.1.2 suspend the Licensee’s access to the Software for operational reasons such as repair, maintenance or improvement, or because of an emergency;
9.1.3 suspend the Licensee’s access to the Software if the Licensee has breached this Agreement, subject to the provisions of clause 12;
9.1.4 to schedule routine or emergency maintenance of its network and the Software.
9.2 The Licensor shall not be liable to the Licensee for any compensation in respect of any downtime of the Software, where applicable.
9.3 The Licensor reserves the right to temporarily suspend the Licensee’s access to the Software at any time if there is a serious risk of compromise to the integrity of the Software or otherwise.
- INTELLECTUAL PROPERTY
10.1 It is acknowledged by the Licensee that all right, title and interest in and to the Intellectual Property Rights of the Software, from the date of development thereof, vests in the Licensor. This Agreement does not convey to the Licensee any interest in or to the Software, except for a limited right of use as set forth herein.
10.2 It is further acknowledged by the Licensee that all right, title and interest in and to the Intellectual Property Rights pertaining or in connection to any additions, upgrades, enhancements, improvements, derivatives and adaptations to the Software, as of the Effective Date, vest in the Licensor.
10.3 The Licensee shall notify the Licensor of any third party claim in writing and the Licensor shall have sole control over its defence or settlement; provided that the Licensee shall provide the Licensor with all reasonable assistance required in this regard.
11.1 The Parties shall keep secret and confidential and not disclose to any person, save as may strictly be necessary for the purpose of the implementation of the transaction contemplated in this Agreement, this Agreement, copies of the Software and all related Documentation, including all information of and concerning the affairs of each other that they may have acquired in terms hereof, and no Party shall disclose any such information to any third party or use any such information for its own benefit, provided that this obligation shall not extend to information:
11.1.1 the disclosure of which is agreed to by the Parties in writing;
11.1.2 the disclosure of which is required by law, a stock exchange or other regulatory authority or divulged pursuant to an order of a court of competent jurisdiction;
11.1.3 which is already known to the disclosing Party and is not subject to an obligation of confidence;
11.1.4 which is independently developed by the disclosing Party without using any proprietary information.
11.2 No Party shall without the consent of the other Party, issue or make any public announcement or statement or release or make available any information regarding this Agreement. Once the other Party has approved any such announcement or statement or release of information, the approving Party shall automatically be entitled to issue or make the same announcement or statement or release the information in question in the same approved format.
11.3 From time to time the Licensor may collect Telemetry Data pertaining to the the use of the software in an automated fashion, although through arrangement such telemetry data collection may be disabled on a per-license basis. The Licensor warrants that such data collection will solely be used for the purposes of improving the product or operating its business and that such information will not be disclosed to any third parties for reasons other than to provide an effective service to the Licensee. Such information will be duly anonymised or secured in the event of license monitoring or activation.
- BREACH AND EFFECTS OF TERMINATION
12.1 This Agreement and the Licence granted hereunder shall continue in effect unless terminated in the Licensor’s discretion, upon the earliest to occur of the following:
12.1.1 termination of the Licensee’s contract with the Reseller;
12.1.2 the Licensor providing not less than 90 (ninety) days’ prior written notice to the Licensee of such termination;
12.1.3 7 (seven) days after the Licensor gives the Licensee notice of the Licensee’s material breach of any provision of this Agreement and the Licensee fails to comply with such notice or where payment is overdue by more than 30 (thirty) days with regards to the Licensee’s payment of any monies owed to the Licensor and/or Reseller, unless the Licensee has cured such payment breach during such 30 (thirty) day period;
12.1.4 the Licensee cedes, assigns, delegates or otherwise transfers this Agreement without the prior written consent of the Licensor; or
12.1.5 immediately if the Licensee files for liquidation, is placed under judicial management or business rescue, becomes insolvent, is deregistered, ceases to carry on business in the normal course and manner, has a judgement taken against it which is not satisfied or rescinded within 30 (thirty) days thereof, or otherwise makes an assignment for the benefit of its creditors.
12.2 The Licensor may terminate this Agreement immediately and without notice or suspend or terminate the Licence, if the Licensee fails to comply with these terms in any respect.
12.3 Clauses 8, 9, 10, 11, 13 and 14 of this Agreement shall remain in full force and effect following, and shall survive, the termination of this Agreement. Termination of this Agreement does not entitle the Licensee to any refund of any Licence Fees paid, if any. A breach by the Licensee of clauses 4, 7 or 9 shall be deemed a material breach of this Agreement.
- DOMICILIUM AND NOTICES
13.1 For the purpose of this Agreement, including the giving of notices in terms hereof and the serving of legal process, the Parties choose their domicilium citandi et executandi as follows:
13.1.1 Panoptix (PTY) LTD:
Physical: 53 Outspan Road, Morningside, Sandton, 2196, South Africa E-mail: firstname.lastname@example.org
13.1.2 The Licensee:
As per the address and contact information detailed by the Licensee in the registration process hereto or at such other address, not being a post office box or poste restante, of which the Party concerned may notify the other in writing.
13.2 Any notice given in terms of this Agreement shall be in writing and shall:
13.2.1 if delivered by hand be deemed to have been duly received by the addressee on the date of delivery; or
13.2.2 if transmitted by email be deemed to have been received by the addressee 1 (one) day after dispatch.
13.3 Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of telex, email or fax transmission shall be adequate written notice or communication to such Party.
- GOVERNING LAW AND JURISDICTION
This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa, without regard to their conflict-of-law provisions. The Licensee agrees to the exclusive jurisdiction of the competent courts in Johannesburg, South Africa, to resolve any legal dispute arising under this Agreement.
15.1 The Licensor may cede, assign, delegate or otherwise transfer its rights and obligations under this Agreement to another person or organisation without the consent of the Licensee. The Licensee may not cede, assign, transfer or otherwise dispose of its rights and obligations under this Agreement without the prior written consent of the Licensor.
15.2 Unless otherwise stated herein, as from the Signature Date, this Agreement replaces and supersedes any and all previous agreements made and executed by the Parties regarding the subject matter of this Agreement.
15.3 This document contains the entire agreement between the Parties relating to the subject matter hereof and none of them shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein or in such other agreements.
15.4 No alteration, variation, novation or cancellation by agreement of, addition or amendment to, or deletion from this Agreement, including this clause 14.4, shall be of any force or effect unless in writing and signed by or on behalf of the Parties hereto.
15.5 No waiver or abandonment by a Party of any of its rights in terms of this Agreement shall be binding on that Party, unless such waiver of abandonment is in writing and signed by the waiving Party.
15.6 No indulgence, extension of time, relaxation or latitude which any Party (“the Grantor”) may show, grant or allow to another (“the Grantee”) shall constitute a waiver by the Grantor of any of the Grantor’s rights and the Grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the Grantee which may have arisen in the past or which might arise in the future.
15.7 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 invalidation any of the remaining provisions of this Agreement which shall continue to be of full force and effect.
15.8 No remedy conferred by this Agreement is intended, unless specifically stated, to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise. The election of any one or more remedy by a Party shall not constitute a waiver by such Party of the right to pursue any other remedy available at law.
15.9 Each Party shall pay their own costs in regard to the negotiation, preparation and drafting of this Agreement.
15.10 This Agreement may be executed in counterparts each of which when so executed shall be an original, but all such counterparts together shall constitute one and the same document.
15.11 The Parties shall, at all times, be independent contracting parties and neither Party shall be construed as a partner, employer or employee of the other or represent itself as such.
15.12 The persons signing or entering into this Agreement in a representative capacity warrant their authority to do so.