EZIWORK SOLUTIONS (PTY) LTD: END USER LICENSE AGREEMENT
Unless the context indicates otherwise, the following words, terms or expressions shall have the meanings assigned to them hereunder in this Agreement and cognate expressions shall have corresponding meanings:
1.1. “Agreement” means this written end-user licence agreement together with the annexures and schedules hereto (if any);
1.2. “Annual Licence Fee” means Click or tap here to enter text.;
1.3. “Business Day” means a day which is not a Saturday, Sunday or a public holiday gazetted in the Republic of South Africa from time to time;
1.1. “Confidential Information” means any information, documentation or data of whatever nature which may have been or which may be obtained by a Party in accordance with or during the course of this Agreement which is not generally available to or known by others, whether in writing, in electronic form or in accordance with discussions, including without limitation the Intellectual Property, financial information, marketing and business strategies, minutes of meetings, corporate memoranda, and other information relating to any existing clients, trade secrets, know-how, strategic objectives, planning or ideas, research, business activities, business relationships, products or proposed products, proposals, pricing details, strategies, schematics, software, computer programmes, operating procedures and methodologies, functional and technical requirements and specifications and any other technical, business, financial or market information and any other information which may reasonably be regarded as being confidential and of a proprietary nature to a Party;
1.2. “Effective Date” means the Signature Date;
1.1. “Intellectual Property” shall mean, but not be limited to, any patent, registered design, copyright, design right, trademark, application to register any of the aforementioned rights, right in the nature of any of the aforementioned rights, trade secrets, rights in unpatented know-how and right of confidence and any other intellectual or industrial property rights of any nature whatsoever belonging to EWS or relating to the Products, including, without limitation the Trademark;
1.2. “Parties” means the parties to this Agreement, and, “Party” means any one of them;
1.3. “Signature Date” means the date of signature of this Agreement by the Party last signing;
1.4. “Software” means Click or tap here to enter text..
Unless a contrary intention clearly appears:
2.1. the headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof;
2.2. words importing:
2.2.1. any one gender include the other two genders;
2.2.2. the singular include the plural and vice versa; and
2.3. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is in clause 1, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
2.4. if the due date for performance of any obligation in terms of this Agreement is a day which is a non-Business Day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding Business Day;
2.5. if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
2.6. annexures and schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the annexures and schedules;
2.7. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply to this Agreement;
2.8. the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s;
2.9. any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be.
2.10. any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;
2.11. the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words if a wider construction is possible;
2.12. terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry specific practice, will be interpreted in accordance with their generally accepted meanings;
2.13. defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
2.14. no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement;
2.15. the words “clause” or “clauses” and “annexure” or “annexures” refer to clauses of and annexures to this Agreement.
EWS does not sell any rights in the Software and shall retain ownership of the Software throughout the Customer’s use of the Software.
4. GRANTING OF LICENSE
4.1. In consideration of payment of an Annual Licence Fee and your agreement to abide by the terms and conditions of this Agreement, EWS grants to you, the Customer, a non-exclusive right to use and display this copy of the Software on a single computer (with a single CPU) at a single location conditional upon the Customer’s compliance with the terms of this Agreement for the duration of this Software license and on condition of the Annual Licence Fee being paid a year in advance. If the single computer on which you use the Software is a multi-user system, the Licence covers the number of users determined by EWS.
4.2. EWS reserves all rights not expressly granted to the Customer.
5. OWNERSHIP OF SOFTWARE
5.1. As the Customer, you own the magnetic or other physical media on which the Software is originally or subsequently recorded or fixed, but an express condition of this license is that EWS retains title and ownership of the Software recorded on the original media and all subsequent copies of the Software, regardless of the form or media in or on which the original and other copies may exist.
5.2. This Software license is not a sale of the original Software or any copy thereof.
6. COPY RESTRICTIONS
6.1. This Software and the accompanying written material are the subject of copyright.
6.2. Unauthorized copying of the written materials is expressly forbidden. The Customer is allowed in terms of the Software license to make one copy of the original software for backup or archival purposes only.
7. USE RESTRICTIONS
7.1. As the Customer, you may physically transfer the Software from one computer to another provided that the Software is used on only one computer at a time.
7.2. The Customer may not distribute copies of the accompanying written materials to any other parties.
7.3. The Customer may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software except where specifically mentioned in the manual.
7.4. The Customer may not modify, adapt, translate or create derivative works based on the written materials without the prior written consent of EWS.
7.5. The Customer may not transfer the Software license to any other party without the prior written consent of EWS. Should the transfer of the Software license be granted by EWS, the authorized transferee of the Software shall be bound by the terms and conditions of this Agreement.
8.1. The Software license is effective until terminated.
8.2. The Software License will automatically terminate without notice from EWS if the Customer
8.2.1. fail to comply with any provision of this Software license; or
8.2.2. fail to pay the Annual License Fee on the agreed date.
8.3. Upon termination the Customer shall destroy the written materials and all copies of the Software including modified copies, if any.
9. UPDATE POLICY
EWS may create, from time to time, updated version(s) of the Software. At its option, EWS will make such updates available to the Customer and transferees who have paid the Annual Licence Fee and returned the relevant registration card to EWS.
10. INTELLECTUAL PROPERTY
10.1. For the purposes of this Agreement “Intellectual Property Right” means any right in or to any invention, patent, patent application, copyright, moral right, trade-mark, trade name, service mark, trade secret, know-how, confidential information, industrial design or other intellectual property right of any kind whether or not registered or capable of registration.
10.2. The Customer acknowledges that the Software is licensed for use by the Customer. All Intellectual Property Rights in or relating to the Software shall remain the sole and exclusive property of EWS.
10.3. Except where expressly provided herein, nothing in this Agreement shall create any right, title or interest in EWS’s Intellectual Property Rights.
10.4. Subject to clause 10.5, each Party undertakes that it shall not at any time, disclose to any person any Confidential Information.
10.5. Each Party may disclose the other Party’s Confidential Information:
10.5.1. to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the Party’s obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this clause 10; and
10.5.2. as may be required by law, court order or any governmental or regulatory authority.
10.5.3. No Party shall use any other Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
11. GOVERNING LAW
This Agreement shall be governed by and construed in all respects by the laws of the Republic of South Africa.
12. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY
12.1. The Software and accompanying written materials (including instructions for use) are provided “as is” and without warranty of any kind.
12.2. EWS does not warrant, guarantee or make any representations regarding the use, or the results of use, of the Software or written materials in terms of correctness, accuracy, reliability, or otherwise. The entire risk as to the results and performance of the Software is assumed by the Customer.
12.3. If the Software or written materials are defective, the Customer, and not EWS or its dealers, distributors, agents or employees, shall assume the entire cost of all necessary servicing, repairs of corrections.
12.4. The contents of this clause 12 are the only warranty of any kind, either express or implied, including but not limited to the implied warranties or merchantability and fitness for a particular purpose that is made by EWS for this Software.
12.5. No oral or written information or advice given by EWS, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of this warranty and the Customer may not rely on any such information or advice.
12.6. Neither EWS nor anyone else who has been involved in the creation, production or delivery of this Software shall be liable for any direct, indirect, consequential or incidental damages (including damages for loss of business profits, business interruption, loss of business information and the like) arising out of the use or inability to use the Software even if EWS has been advised of the possibility of such damages.
13.1. The Customer acknowledges that it has read this Agreement and understands the contents herein, and agrees to be bound by its terms and conditions.
13.2. The Customer agrees that the Software license and limited warranty are the complete and exclusive statement of the Agreement between the Parties and supersede all proposals or prior agreements, oral or written, and any communications between the Parties relating to the subject matter of the license or the limited warranty.
14.1. For the purposes of the giving of notices and the serving of legal process in terms of this Agreement, the Parties choose as domicilium citandi et executandi (“domicilium”) the address and contact details specified on the first page of this Agreement.
14.2. Any Party may at any time, by notice in writing to the other Party, change its domicilium to any other address, which is not a post office box or post restante in South Africa.
14.3. Any notice given in connection with this Agreement shall, save where a particular form of notice is stipulated, be:
14.3.1. delivered by hand; or
14.3.2. sent by courier; or
14.3.3. sent by email;
to the domicilium chosen by the Party concerned.
14.4. A notice given as set out above shall be deemed to have been duly given (unless the contrary is proved):
14.4.1. if delivered by hand, on the date of delivery; or
14.4.2. if sent by courier, on the date of delivery by the courier service concerned; or
14.4.3. if sent by email, on the expiration of 1 (one) Business Day after the time of transmission.
14.5. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered to its chosen address.
If a Party commits any breach of this Agreement (“Defaulting Party”) and fails to remedy such breach within 5 (five) Business Days (“Notice Period”) of written notice requiring the breach to be remedied, then the Party giving the notice (“Aggrieved Party”) will be entitled, at its option:
15.1. to claim immediate specific performance of all or any of the Defaulting Party’s obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party’s obligations, provided that EWS may not cancel this Agreement after payment of the full Purchase Price; or
15.2. to cancel this Agreement and to retain as pre-estimate liquidated damages, any amount paid by or on behalf of the Defaulting Party, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. No Party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if:
15.2.1. it is capable of being remedied, but is not so remedied within the Notice Period; or
15.2.2. it is incapable of being remedied and payment in money will compensate for such breach but such payment is not made within the Notice Period.
16. CESSION AND ASSIGNMENT
This Agreement is personal to the Customer and neither the Agreement nor any part thereof may be ceded, delegated, assigned, sub-contracted or transferred in any other manner by the Customer to a third party without EWS’s prior written consent.
17. WHOLE AGREEMENT, NO AMENDMENT
17.1. This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
17.2. No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
17.3. No oral pactum de non petendo shall be of any force or effect.
17.4. No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Agreement.
17.5. To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
18. INDEPENDENT ADVICE
Each of the Parties hereto acknowledges that it has been free to secure independent legal and/or other advice as to the nature and effect of all of the provisions of this Agreement and that it has either taken such independent legal and/or other advice or dispensed with the necessity of doing so.
19.1. AGREEMENT BINDING ON SUCCESSORS IN TITLE
This Agreement shall be binding on the administrators, executors, heirs, business rescue practitioners, judicial managers and other successors-in-title of the Parties, who shall not be entitled to terminate this Agreement merely by reason of the death of a Party. Every Party indemnifies the others against any loss or damage of any nature whatsoever which the others may sustain if this Agreement is not binding for any reason on the former’s administrators, executors, heirs, judicial managers and/or other successors-in-title.
19.2. DISCLOSURE NOT EXCLUDED
Nothing contained in this Agreement shall be construed as relieving any Party from any duty of disclosure which either Party may have at common law or the consequences of any non-disclosure in breach of such duty.
No indulgences granted by either Party shall constitute a waiver or abandonment of either of the Parties rights under this Agreement. Accordingly, neither Party shall be precluded because of having granted that indulgence, from exercising its rights which may have arisen in the past or which may arise in the future under this Agreement.
19.4. NO REMEDY EXCLUSIVE
No remedy granted by this Agreement shall exclude any other remedy available at law.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction
19.6. USE OF THE NAME OF THE OTHER PARTY
No Party to this Agreement shall use the name of any other Party to this Agreement in any advertising or for the purposes of promoting the former’s business or Equipment’s.
19.7. EXCLUSION OF ELECTRONIC SIGNATURE
The reference in this Agreement to “writing” shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.
19.8. CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS
The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
20.1. Each Party shall be liable for all costs incurred by the other Party in the recovery of any moneys hereunder (including collection charges and attorney and own client costs) whether incurred prior to or during the institution of legal proceedings, including any appeals, or if judgment has been granted, in connection with the satisfaction or enforcement of any such judgment.
20.2. Each of the Parties shall bear its own costs of and incidental to the preparation, negotiation and execution of this Agreement.
21.1. This Agreement is signed by the Parties on the dates and at the places indicated below.
21.2. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
21.3. The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.