Known as ‘EMC by ASD’
and referred to as ‘the software’
Software Licence Agreement
ASD Solutions (Pty) Ltd
275 Johannesburg Road, La Rochelle 2190
(Hereinafter referred to as “ASD”)
TABLE OF CONTENTS
CLAUSE NO SUBJECT
1 Definitions and interpretation
2 Grant of licence
3 Duration of licence
4 Licence fee and payment
7 Use of software
9 Proprietary rights
11 Restriction of ASD’s liability
12 Customer shall not employ staff
13 Cession and assignment prohibited
14 Disputes and arbitration
15 Notices and domicilium
16 Whole agreement, no amendment
1. DEFINITIONS AND INTERPRETATION
Headings of clauses in this agreement are for purposes 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, in this agreement, unless a contrary intention clearly appears:
a. any one gender included the other gender;
b. the singular includes the plural, and vice versa;
c. natural persons include created entities (corporate or unincorporated), and vice versa.
d. The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
e. “authorised processor” means the processor and the system operating environment, as described in schedule “1”, and with which the software is licensed to be used ;
f. “programs” means a set of instructions to cause a computer to perform particular operations;
g. “version” means an updated copy of the software;
h. “object code” means a fully compiled or assembled program into executable machine-readable code.
i. “source code” means a program of instructions written by a programmer in a high-level programming language.
j. “dictionary” defines and describes data within its associated tables.
k. “software” means the program, integrated data base organisation and design, and dictionaries, and includes such other associated documentation which may be supplied, and supplied under the name of ‘EMC by ASD’.
l. “Services” are tasks undertaken by ASD in the process of installing and implementing the software for which fees will be charged at ASD’s ruling rates.
m. “the commencement date” means the date when the software is first installed for use by or on behalf of the customer, or on delivery to the customer by ASD of the software whichever is the earlier.
n. “editor” means the utility which permits on-line interactive modification of any item in the data base, may be used to create and/or modify programs, procedures data files and dictionaries.
o. 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 definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
p. 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 Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
q. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2. GRANT OF LICENCE
ASD hereby grants to the customer the non-exclusive non-transferable licence to use the software, all versions provided from time to time by ASD on the authorised processor subject to the further terms and conditions of this agreement.
3. DURATION OF LICENCE
a. This licence will operate and enure from the 1st log in and acceptance of the licence terms and conditions.
b. The licence shall not terminate on expiry of the initial period, but shall thereafter remain in force for successive periods of twelve calendar months each until such time as either party terminates the licence, by giving to the other party, three months written notice of its intention to terminate the licence. Provided that such notice may not be given so as to expire before the end of the initial period, or other than to expire at the end of the initial or a twelve calendar month extension period.
4. LICENCE FEE AND PAYMENT
a. As consideration for the licence hereby granted, the customer shall pay to ASD on the date of the 1st log in the licence fee for the initial period, together with VAT and any other taxes, duties, levies or imposts which any competent authority may impose.
b. All payments shall be paid to ASD at its domicilium in South African currency, and free of any bank charges or deductions.
c. Should this licence continue in operation beyond the initial period, a further licence fee shall be payable for each successive twelve calendar month period (“extension period”) of the operation of the licence beyond the initial period, and the customer shall in addition pay any VAT, other taxes, duties, levies or imposts which any competent authority may impose.
d. Payment of the licence fee for any such extension period shall be made within seven days from date of ASD’s invoice.
e. Such charges shall be subject to change, from time to time, and such changes in respect of future extension periods shall become effective at the commencement of the next extension period, after notice in writing has been given to the customer, which notice shall be given at least twenty-one days prior to the expiry of the then current period, whether it is the initial period or an extension period. Annual increases will not exceed the increase in the CPI for that period.
f. If notice of such increased charge is given, the customer, notwithstanding the provisions of clause 3 may terminate this agreement on the expiry of the then current period, be it the initial period or an extension period, before such increased charges become effective by giving notice in writing to ASD, which notice shall be given at least fourteen days before the increased charges are to become effective. Should no such notice be given, the customer shall be obliged to pay the increased charges for the following extension period.
g. Non payment of licence or service fees will automatically cancel the licence.
ASD shall be entitled to charge the customer interest on all amounts payable in terms of this agreement, which are in
arrears. The rate of such interest shall be at the ruling prime rate. Such interest shall apply, from the date payment is due, to date of payment.
ASD shall deliver to the customer one copy only of the software. Should subsequent versions be produced, ASD shall
deliver each subsequent version to the customer on a medium to be agreed between ASD and the customer.
7. USE OF SOFTWARE
a. The customer may use the software, and without limiting the generality of the foregoing, the programs and dictionaries, only on one authorised processor and at the installation address notified in writing to ASD.
b. Should the authorised processor not yet be installed or should it fail, the operation of this licence will be deemed to be extended for such period, without further charge to the customer, as may be agreed in writing between ASD and the customer.
c. The customer shall not print, copy, translate, adapt, record or otherwise reproduce in whole or in part the software except as herein expressly authorised. The customer shall be entitled only to make so many copies of the software or parts thereof as are reasonably necessary for operational security and use by it personally. The provisions of this licence shall apply to all such copies. The customer may, when required due to malfunction of or preventative maintenance modification or adjustment to the authorised processor, transport or transit a copy of the software to another location for back-up use.
d. The customer may only use documentation issued by ASD to assist the customer in its use of the programs and dictionaries and shall not be entitled to use such documentation for any other purpose. No copies of any such documentation may be made without the prior written consent of ASD.
e. The customer shall not lend, dispose of, deliver to a third person or alienate any of the software without ASD’s prior written consent.
f. The customer shall permit ASD at all reasonable times to audit the customer’s use of the software, and the making by the customer of copies.
g. The customer shall not disclose or make available to any person the software or any part thereof in any form.
h. Should the customer knowingly or deliberately make unauthorised use of the software, and without limiting the generality of the foregoing, the programs and dictionaries, then, in addition to any other rights and remedies which ASD may have in law or under this agreement, ASD shall be entitled to recover from the customer an amount equal to the charges which such unauthorised user would have been obliged to pay had ASD granted a licence to such person at the beginning of the period of unauthorised use by such person.
Notwithstanding the provisions of anything contained in this licence agreement to the contrary, and more particularly notwithstanding the provisions of clause 3:
a. Should the customer breach any of the terms and conditions of this agreement and fail to remedy such breach within fourteen days of written notice from ASD requiring it to remedy the breach; and/or should ASD become entitled to terminate any other licence or agreement with the customer; ASD shall be entitled to cancel this agreement and terminate the licence granted in terms hereof, this right being without prejudice to any other rights which ASD may have in law or under this agreement, including, without limiting the generality of the foregoing, the right to claim damages or specific performance, and ASD shall be entitled to retain all monies paid to date of cancellation, pending quantification of its damages.
b. Should the customer fail to pay any licence or associated service fee by due date ASD shall be entitled to cancel this licence agreement forthwith, and without notice.
c. Should application be made for the sequestration or liquidation of the customer, whether provisional or final or should the customer make or enter into or purport to make or enter into any composition or arrangement with its creditors, or should the customer be placed under judicial management, whether provisionally or finally, or attempt to surrender its estate, or should a resolution be passed for the winding up of the customer, ASD shall be entitled to cancel this agreement forthwith, and without notice.
d. Termination of this licence agreement shall not discharge the customer from any other obligation to ASD in terms of this agreement, or from payment of any sum due as at such date of termination, or which might become due thereafter in terms of this agreement.
9. PROPRIETARY RIGHTS
ASD warrants that it has the rights to grant the licence for the software.
a. The customer acknowledges that in acquiring the licence granted in terms hereof, it does not acquire any copyright, trademark, patent, invention rights, proprietary information, or any other rights relating to the software. All software, and without limiting the generality of the foregoing, the programs and dictionaries and all parts thereof, and all proprietary rights, including copyright, trademark and any other intellectual property rights remain the property of ASD. Except only to the extent to which any rights are expressly granted to the customer by ASD in terms of the licence granted herein, no proprietary or intellectual rights in or to any product pass to the customer. The customer undertakes to obey all instructions as ASD might give it from time to time regarding proprietary rights in and to the software.
b. The customer acknowledges that the copyright in the product vests in ASD. The customer further acknowledges and agrees that if it is ever contended by the customer that the customer has any right to copyright in the product, the onus shall be on the customer to prove this. This clause is severable from all other provisions of this agreement. Should this clause be found to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not effect the remaining provisions of this agreement, which shall be and remain in full force and effect.
ASD indemnifies the customer against any harm, damage or loss which the customer may suffer arising out of any
claim by a third party based on an allegation that the rights granted under this licence infringe such third party’s rights,
a. The customer shall immediately notify ASD in writing of any allegation concerning infringement, as soon as this comes to the customer’s notice and the customer shall make no admission, oral or written, in regard to any alleged infringement, without ASD’s prior written consent and the customer shall, at ASD’s request permit ASD to conduct and/or litigation and/or claims. The customer shall give ASD all reasonable assistance as may be required by ASD. The costs incurred, or recovered, in such negotiations and/or litigation shall be for ASD’s account.
b. Provided, however, the indemnity referred to in clause 10 shall not apply to any claim where any product is used in combination with equipment or programs not specified by ASD for use with the software, or where any software or parts thereof are used in combination with programs not supplied by ASD for use with the software.
c. The indemnity referred to in this clause 10 represents ASD’s entire liability in respect of patents, copyright, designs and all other intellectual property rights.
d. Should ASD be of the opinion that an allegation of infringement may be made by a third party relating to patents, copyright, registered design or other intellectual property rights, ASD may, at its own expense, modify or replace the product so as to avoid the allegations of infringement.
11. RESTRICTION OF ASD’S LIABILITY
a. ASD shall not be liable for failure to perform its obligations where such failure is caused by act of God, legal prohibition or restriction, industrial disputes, strikes, lock-outs, breakdown or shortages of plant or equipment, fire, storm, explosion, lack or failure of transportation facilities, or anything beyond ASD’s reasonable control, provided that ASD shall use its best endeavours as soon as is practical to resume the performance of its obligations, and insofar as may be practical, undertakes to attempt to perform the obligations which were suspended during the continuation of any of the aforesaid events.
b. ASD shall not be liable to the customer for damages of any nature nor any loss of profits unless these resulted from gross negligence on its part or on the part of its servants or agents.
c. To the extent that any software supplied by ASD in terms of the grant of this licence is defective or contains errors, ASD’s obligations shall be limited to, in all circumstances to the replacement of such software, or the supply of equivalent software or component thereof; and/or the rectification of the software; and/or the payment of the costs of having such software or component thereof so rectified.
12. CUSTOMER SHALL NOT EMPLOY STAFF
The customer undertakes, during the operation of this agreement, and for twelve months after the termination of this agreement, howsoever occasioned, that it shall not directly or indirectly employ any person who was employed by ASD during the operation of this agreement, nor shall the customer entice or procure that any person so employed by ASD leaves such employ, within the time period stipulated herein.
13. CESSIONS AND ASSIGNMENT PROHIBITED
The customer shall not be entitled to cede, assign, delegate or transfer, sub-licence or otherwise transfer the licence or
any of the rights granted to the customer in terms of this agreement, without ASD’s prior written consent.
15. NOTICES AND DOMICILIUM
All notice to be given in terms of this agreement shall be given in writing.
a. The parties choose as their respective domicilia citandi et executandi for all purposes under this agreement; ASD at the address shown on the front page hereof; the customer at the installation address..
b. Any notice or communication required or permitted to be given in terms hereof shall be competently given if given by telefax.
c. Any party may by notice to the other change its domicilium citandi et executandi to another physical address in the republic of South Africa.
d. Any notice to a party sent by pre-paid registered post (by airmail, if appropriate) in a correctly addressed envelope to the addressee’s domicilium citandi et executandi shall be deemed to have been received on the fifth day after posting (unless the contrary is proved); delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or sent by telefax to its correct telefax number shall be deemed to have been received on the day of transmission (unless the contrary is proved).
e. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by the addressee shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered to the chosen domicilium citandi et executandi.
16. WHOLE AGREEMENT, NO AMENDMENT
This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.
a. No amendment or consensual cancellation of this agreement or any provision or term thereof 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 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. Any such extension, waiver or relaxation or suspension which is so given or made such be strictly construed as relating strictly to the matter in respect whereof it was made or given.
b. 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 estoppal against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
ACCEPTED BY THE CUSTOMER.
SCHEDULE 1 TO LICENCE AGREEMENT FOR SOFTWARE LICENCE NO:
1. Standard software as ordered in writing by the customer.
2. Maximum user population as ordered in writing by the customer.
3. As installed on the processor at 1st log in.
4. Commencement date for initial period is as at 1st log in.