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SUBSCRIPTION AGREEMENT

WHEREAS: 

a.The Licensor provides a cloud and mobile based framework and database solution comprising a platform, framework, communication gateway and reporting monitoring and evaluation (M&E) tool for use by companies and organisations (the Software), which includes any and all maintenance releases, new versions, updates, upgrades and other modifications thereto.

b.The Licensor’s Software helps organisations collect, store, manage and report on social impact data in order to build richer databases

c. The Licensor intends to make the Software, as well as the supporting services contemplated in the Quotation available to the Licensee accessible online via the Website, and the Licensee wishes to obtain a license to use the Software in the conduct of the Licensee’s program.

d. The Licensor and the Licensee wish to enter into an agreement whereby the Licensee is entitled to use the Software, for the purpose of tracking of and reporting on engagements, connections, development, outcomes, learning, custom data point and creating a database of Licensee information, through the Services provided by the Licensor.

e. This Agreement governs the access to and use by the Licensee of the Software and the services provided to the Licensee by the Licensor pursuant to such access and use.

NOW, THEREFORE, The Parties hereto agree as follows.

  1. Definitions For the purposes of this Agreement, as the preamble above, unless the context requires otherwise
    1. Account Data means any and all account and contact information submitted to the Services or inputted to the Software by the Licensee or End Users;
    2. Additional Associated Fees has the meaning ascribed to it in clause 10.7;
    3. Additional Implementation Fee has the meaning ascribed to it in clause 10.8;
    4. Additional Training and Certification Fee has the meaning ascribed to it in clause 8.3; 
    5. Administrative Console means the intangible area of the Software which enables Administrators to perform the functions described in clause 1.1.6;
    6. Administrators means any persons granted access to the Administrative Console of the Software by the Licensee and/or the Licensor, which persons may have the ability to: 
      1. access, disclose, restrict or remove Licensee Data in or from services accounts; and 
      2. monitor, restrict, or terminate access to Services Accounts;
    7. Agreement means this license agreement which contains the general terms applicable to the purchase and use of the Services and includes the Quotation with specific and binding terms agreed to between the Parties in addition to the general terms of this Agreement.;
    8. Applicable Laws means, in relation to a Party, in respect of the Republic of South Africa, all and any of the following: (i) statutes, subordinated legislation and common law; (ii) regulations; (iii) ordinances and by-laws; (iv) directives, judgements and decisions of any competent authority, or any governmental, intergovernmental or supranational agency, body, department or regulatory, self-regulatory or other authority or organisation; and (v) other similar provisions from time to time, compliance with which is mandatory for that Party;
    9. Business Day means any day which is not a Saturday, Sunday or statutory holiday in the Republic of South Africa;
    10. Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in terms of clause 12;
    11. Consumer Protection Act means the Consumer Protection Act, 68 of 2008; 
    12. CPI means the consumer price index for all urban areas as compiled and published monthly by Statistics South Africa or anybody authorised in its stead in terms of the Statistics Act No 6 of 1999, as amended, or any statute replacing the Statistics Act No 6 of 1999, to compile and publish national statistics
    13. Delivery Schedule means the delivery schedule as recited in in the Scope of Service; 
    14. Documentation means the document made available to the Licensee by the Licensor online via the Website or such other website address notified by the Licensor to the Licensee from time to time which sets out a description of the Services and the user instructions for the Services; 
    15. End User means the users of the Licensee’s Account including, but not limited to, any Administrator, beneficiaries, volunteers, facilitators, programme managers, partners, funders and corporate partners who are authorised by the Licensee to use the Services;
    16. Fee Payment Schedule has the meaning ascribed to it in clause 10.6;
    17. Implementation Fee means the once-off fee payable by the Licensee to the Licensor in respect of the technical set-up of the Licensor’s Software for use by the Licensee, payable upon commencement of such technical set-up, the monetary amount of which is set out in the Quotation;
    18. IPR means all intellectual property rights of any nature throughout the world, including but not limited to copyrights, patents, know-how, rights in trademarks and designs (whether registered or unregistered), trade secrets, trade names, Confidential Information, database rights, authors’ rights, and rights of attribution, applications for registration, and the right to apply for registration for any of the same, and any other proprietary rights and intellectual property rights and equivalent forms of protection existing anywhere in the world;
    19. License means the non-exclusive license to use the Licensor’s Software granted to the Licensee by the Licensor on the terms and subject to the conditions contained in this Agreement;
    20. Licensee has the meaning given to it in the preamble to this Agreement;
    21. Licensee Account means the account of the Licensee as registered on the Software in accordance with the registration policies and procedures of the Licensor;
    22. Licensee Data collectively means User Data, Account Data, Stored Data, measurement M&E specifics and reports;
    23. License Fees means the total of the Implementation Fee and the Monthly Fee;
    24. Licensor has the meaning given to it in the preamble to this Agreement;
    25. Licensor API means the Licensor’s application program interface, being a set of routines, protocols, and tools for building software applications;
    26. Monthly Fee means the monthly pay-per-use fee payable by the Licensee to the Licensor upon receipt of an invoice from the Licensor in respect of the provision by the Licensor of the Services, the monetary amount of which is set out in the Quotation;
    27. Parties means each of the Licensor and the Licensee, and Party shall mean either of them as the context may require;
    28. POPIA means the Protection of Personal Information Act 4 of 2013; 
    29. Quotation means the Licensors document setting out the estimated costs associated with the Services;
    30. Rand or R means South African Rand, the lawful currency of the Republic of South Africa; 
    31. Reverse Engineer means the process of extracting knowledge or design information from the Licensor’s Software and/or the Services by disassembling and/or analysing the Licensor’s Software in detail in order to discover the concepts involved in manufacture or development with a view to re-producing the Licensor’s Software and/or reproducing anything based on such information extracted from the Licensor’s Software or the Services.
    32. Quotation means the accepted quotation with the scope of services and contains details of the Licensee together with any additional terms agreed to between the Parties;
    33. Security Emergency means: 
      1. use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services; and 
      2. unauthorised third-party access to the Services.
    34. Services means the subscription services provided by the Licensor to the Licensee via the indicated domain or any other domain notified to the Licensee by the Licensor from time to time, as more particularly described in the Documentation including but not limited to access to and use of the Software;
    35. Service Analyses means any statistical, historical or analytical information generated by the Licensor through the processing of Licensee data, reports and measurement M&E specifics together with usage information, security incidences and any other information relevant to the use of the Software. All Service Analyses consists of de-identified information that cannot be used to identify any individual Licensee and is used for the sole purpose of improving or upgrading the Software and Services.
    36. Source Code means the source code of the Software and shall include:
      1. all logic diagrams, flowcharts, protocols, orthographic representations, algorithms, routines, subroutines, utilities, modules, file structures, coding sheets, coding, script, listings, functional specifications and program specifications, executable code, specialised development tools, design documentation;
      2. Materials relating to that Software (whether in the form of magnetic media or otherwise or whether in eye-readable or machine-readable form) necessary to enable a programmer to maintain, amend, modify, develop and enhance that Software without reference to any other person or document, and including, without limitation, editors, compilers and linkers, and all normally available programmer’s comments
      3. all respective modifications, developments, changes, enhancements or revisions to all of the above as may be made from time to time; and
      4. all Software Documentation, required by Licensee Insure to maintain, enhance, modify, support and perpetuate the Software.
    37. SSL means secure sockets layer, the standard security technology for establishing an encrypted link between a web server and a browser which link ensures that all data passed between the web server and browsers remains private and integral;
    38. Stored Data means any and all file and structured data submitted through the Services by the Licensee or End Users and which is stored in the cloud by the Licensor in accordance with the Licensor’s storage policies and procedures; 
    39. Term means the term of this Agreement, determined in accordance with clause 11.1 (Term and Termination) and the Quotation;
    40. Terms and Conditions of Use means the terms and conditions of use as published by the Licensor on the Website, as amended and supplemented from time-to-time;
    41. Third Party Request means a request received from a third party for records relating to an End User’s use of the Services including information in or from an End User or the Licensee’s Account, which  may include search warrants, court orders, subpoenas, or any other request for which there is written consent from the End Users permitting a disclosure of the use of the Services;
    42. UNCITRAL means the United Nations Commission on International Trade Law; 
    43. Unauthorised Use means use of and access to the Licensor’s Software and/or the Services which is contrary to the provisions of: 
      1. this Agreement;
      2. any Applicable Laws; and/or
      3. the Terms and Conditions of Use; 
    44. User Data means any data related to the End Users which is collected by the Licensee through the Services or submitted to the Services by the Licensee or any End User;
    45. Virus means anything or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software (including the Software), hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
    46. Website means the indicated domain being https://*.thesocialcollective.co/, and any other successor or related site designated by the Licensor. 
    47. Interpretation. In addition to the definitions in clause 1.1, unless the context requires otherwise:
      1. the singular shall include the plural and vice versa;
      2. a reference to any one gender, whether masculine, feminine or neuter, includes the other two;
      3. any reference to a natural person includes an artificial person and vice versa;
      4. any word or expression defined in and for the purposes of this Agreement shall if expressed in the singular include the plural and vice versa and a cognate word or expression shall have a corresponding meaning;
      5. references to a statutory provision include any subordinate legislation made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Agreement or any transaction entered into in accordance with this Agreement;
      6. references in this Agreement to clauses, sub-clauses and Schedules are to clauses and sub-clauses of, and schedules to, this Agreement;
      7. no rule of construction shall be applied to the disadvantage of a Party to this Agreement because that Party was responsible for or participated in the preparation of this Agreement or any part of it;
      8. unless otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day; and
      9. all the headings and subheadings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpreting it.
  2. Provisions of the Consumer Protection Act 68 of 2008
    1. The provisions of this Agreement contain assumptions of risk and/or liability by the Licensee and limit and exclude liabilities, obligations and legal responsibilities, which the Licensor will have towards the Licensee and other persons. These provisions also limit and exclude the Licensee’s rights and remedies against the Licensor and place various risks, liabilities, obligations and legal responsibilities on the Licensee. These provisions may result in the Licensee being responsible for paying additional costs and amounts and the Licensor may also have claims and other rights against the Licensee and the End Users. 
    2. To the extent that any services or goods provided under this Agreement are governed by the Consumer Protection Act, no provision in this Agreement is intended to contravene the applicable provisions of the Consumer Protection Act, and therefore all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure compliance with the applicable provisions of the Consumer Protection Act. 
    3. Please read the provisions of this Agreement carefully. The Licensee’s acceptance of the terms of this Agreement will constitute its agreement to comply with the provisions contained herein. If the Licensee, End Users and/or its representatives do not agree with these provisions, please do not accept this Agreement. 
  3. How this Agreement is Formed
    1. If the Licensee clicked “I accept” or similar on the Website, then the following provisions apply: 
    2. The Licensee will only be eligible to place an order for and use any of the Services and the Documentation if it meets the following eligibility requirements, as applicable:
      1. if the Licensee is an individual, the Licensee must be at least 18 (eighteen) years old and have the legal capacity to conclude legally binding contracts; or
      2. if the Licensee is a company, corporation or some other form of legal entity, the individual placing an order for the Services and the Documentation, and/or accepting this Agreement on the Licensee’s behalf must be at least 18 (eighteen) years old, have the legal capacity to conclude legally binding contracts, and be duly authorised to conclude contracts on the Licensee’s behalf.
    3. If the Licensee and, in the case of clause 3.1.1.2 above, such representative, do not meet the aforesaid eligibility criteria, the Licensee may not place an order with the Licensor for the provision of Services and Documentation. By placing such an order, the Licensee and, in the case of clause 3.1.1.2 above, each of the Licensee and the representative (as applicable), warrant that they have contractual capacity to enter into this Agreement and meet the above eligibility criteria.
    4. The Quotation sets out the steps that the Licensee needs to take to place an order with the Licensor. The order process allows the Licensee to check and amend any errors before submitting its order to the Licensor. 
    5. The Licensee’s order constitutes an irrevocable, unconditional and binding offer to the Licensor by the Licensee to purchase the specified Services and the right to use the attendant Documentation from the Licensor (unless and to the extent required otherwise under Applicable Law). After the Licensee places an order, the Licensee will receive an email from the Licensor acknowledging that it has received the order. it is recorded that this email does not mean that the order has been accepted and, for the avoidance of doubt, the Licensor is under no obligation to accept any such offers made by the Licensee to purchase its Services and Documentation. The Licensor’s acceptance of the Licensee’s order will take place as described in clause 3.1.5. 
  4. The Licensor will confirm its acceptance of the Licensee’s order to the Licensee by sending, signing and returning this Agreement together with the completed Quotation.
    1. If the Licensee has not signed and returned (via email); or clicked “I accept” or similar on the Website then the following provisions apply:
    2. this Agreement shall become binding and take effect upon signature by both Parties provided that:
      1. if the Licensee is an individual, the Licensee must be at least 18 (eighteen) years old and have the legal capacity to conclude legally binding contracts;  or
      2. if the Licensee is a company, corporation or some other form of legal entity, the individual placing an order for the Services and the Documentation, and/or accepting this Agreement on the Licensee’s behalf must be at least 18 (eighteen) years old, have the legal capacity to conclude legally binding contracts, and be duly authorised to conclude contracts on the Licensee’s behalf.
  5. User Subscriptions
    1. Subject to: (i) the Licensee subscribing for a License contemplated in clause 3(ii) the restrictions set out in this clause 4; and (iii) the other terms and conditions of this Agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable, worldwide, limited right (without the right to sub-licence, except as expressly set out in the Quotation) to permit the End User to access and use the Services and the Documentation for the duration of this Agreement solely for the Licensee’s internal business operations.
    2. The Services contemplated by this Agreement is expressly limited to the Licensee’s use of the Software in accordance with this Agreement.
    3. For the avoidance of doubt, it is specifically recorded that no right or license is being conveyed to the Licensee to use the Software other than as specifically contemplated in this Agreement and the Licensee is prohibited from using the Software in any manner other than on the terms and subject to the conditions contained in this Agreement and/or its Schedul
  6. The Licensee’s Obligations
    1. Compliance 
      1. The Licensee is responsible for use of the Services by its End Users and will ensure that both the Licensee and its End Users will use the Services in compliance with the Terms and Conditions of Use. 
      2. The Licensee will obtain from the End Users any consents necessary in order to enable the Administrators to engage in the activities described in this Agreement, and any activities incidental thereto, and to allow the Licensor to provide the Services. 
      3. The Licensee will comply with all laws and/or regulations applicable to the Licensee’s use of the Services.
    2. Licensee administration of the Services
      1. The Licensee undertakes that the maximum number of End Users that it authorises as Administrators to access and use the Services and the Documentation through the Administrative Console shall not exceed the number of User Subscriptions it has purchased from time to time.
        1. ensuring that Administrators’ use of the Services complies with this Agreement. The Licensee is responsible for:
          1. managing access to Administrator accounts; and 
          2. maintaining the confidentiality of login details (including usernames and passwords) and Administrator accounts; 
          3. The Licensee is responsible for the internal management or administration of the Services during the Term of this Agreement.
    3. Unauthorised Use and Access 
            1. The Licensee will use all its reasonable endeavours to prevent any Unauthorised Use of the Services by the End Users and. shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Licensor.
            2. The Services are not intended for any End Users or Licensee (as the case may be) under the age of 18 (eighteen) years and who do not have the legal capacity and /or authority to conclude legally binding contracts. The Licensee will ensure that it and its Administrators do not allow any person under the age of 18 (eighteen) years to use the Services.
            3. In the event that the Licensee becomes aware of any Unauthorised Use by the End Users or any other person, the Licensee shall promptly notify the Licensor of such Unauthorised Use and immediately terminate such Unauthorised Use. 
  1.  
  1. Restricted Uses 
    1. The Licensee will not, and will procure that no End User will:
      1. access, store, distribute or transmit any Viruses, nor any material during the course of its use of the Services, nor use or permit the use of the Services or the Documentation that: (i) is unlawful, harmful, threatening, false, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (vi) violates privacy rights or promote bigotry, racism, hatred or harm; (vii) is otherwise illegal or causes damage or injury to any person or property; or (viii) infringes any third party’s IPR;
      2. except as may be allowed under any Applicable Law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, reproduce, adapt, merge, vary, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or the Documentation (as applicable), or any output thereof, in any form or media or by any means; or (ii) access all or any part of the Services or the Documentation in order to build a product or service which competes with the Services and/or the Documentation; or (iii) perform or disclose any benchmark or performance tests of the Services, including the Software, and the Documentation; or, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, except making them available to the End Users in accordance with this Agreement; or (v) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; or (vi) reverse look-up, trace or seek to trace any information including personal information on any other user of the Services, or any other customer or licensee of the Licensor.
      3. use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or 
      4. Reverse Engineer the Services and/or the Software, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by Applicable Laws.
  1. Intellectual Property
    1. The Parties acknowledge and agree that Intellectual Property Rights shall be assigned as follows:

General

  1. The Licensee and the Licensor agree that User Data, Account Data, Stored Data, measurement M&E specifics and reports (as defined in the Subscription Agreement) will remain the property of the Licensee (Licensee Data). The Licensee acknowledges and agrees that the Licensor owns all IPR in and to the Services (including but not limited to the Software, Source Code and Documentation, in providing the Services to the Licensee and any modifications of any of those and derivative works created using any of those. Ownership of IPR between the Licensor and the Licensee shall be solely governed by the Subscription Agreement. 
  1. The Parties agree not to disclose any information whatsoever to any person relating to this Agreement or the IP, technology and associated data of both Parties.
  1. The Licensee shall grant to the Licensor all permissions that are reasonably necessary for the Licensor to offer the Services to the Licensee (by way of example, but without limiting the generality of the aforegoing, hosting Stored Data) (the Permission). The Permission extends to trusted third parties that the Licensor works with in order to provide the Services (by way of example, but without limiting the generality of the aforegoing, sms, email, payment gateways and partner gateways or services).
  2. The Licensee shall keep the Licensor indemnified in full against any sums awarded by a court against the Licensor as a result of or in connection with any claim brought against the Licensor for infringement of a third party’s rights (including any IPR) arising out of, or in connection with, the receipt or use of Licensee Data by the Licensor.
  1. In addition to the provisions of this Clause 6 and 12 (Confidentiality), the Licensor shall require written consent from the Licensee to include the Licensee’s name in a publicly available list of the Licensor’s customers, that may appear on amongst other things the Licensor’s website or promotional materials. 

Services and Documentation

  1. The Licensor owns all IPR in and to the Services (including but not limited to the Software) and the Documentation. This Agreement does not grant the Licensee any rights in or to any of the IPR of the Licensor, or any other rights or licences in respect of the Services or the Documentation.

Deliverables

  1. The Licensee shall own any deliverables produced by the Licensor at the request of the Licensee in providing the Services to the Licensee, together with any derivative works created using any such deliverable. 
    1. The Licensee grants the Licensor an irrevocable, fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable license to use any such deliverables for the further development of the Services and the Software.

Modifications

  1.      The Licensor shall own any modifications produced by the Licensor at the request of the Licensee in providing the Services to the Licensee. 
    1. The Licensee grants the Licensor an irrevocable, fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable license to use any such modifications for the further development of the Services and the Software.
  2. The Licensor may, at its discretion and for any purpose, use, modify, and incorporate into its products and Services, license and sublicense, any feedback, comments, or suggestions that the Licensee or End Users send to the Licensor without any obligation to the Licensee.

Data

  1. User Data, Account Data, Stored Data, measurement M&E specifics and reports will remain the property of the Licensee (Licensee Data);
  1. The Licensee hereby grants the Licensor a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use the Licensee Data for the purpose of fulfilling its obligations in terms of this Agreement for the Term.

Service Analyses

  1. The Licensee grants the Licensor a worldwide, non-exclusive, royalty-free, transferable right to access, use, process and/or modify Licensee Data, for the Term and thereafter in perpetuity in a de-identified form to: (i) improve any of the Licensor’s software, products and services; and (ii) provide any services, including the Services, to the Licensee; and (iii) compile statistical and other information related to the performance, operation and use of the Services and the Documentation and of any equipment, machinery or other assets managed using the Services; and (iv) use in reports in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes, (the outputs of the aforementioned activities hereinafter being collectively referred to as Service Analyses).
  2. The Licensor may make Service Analyses publicly available; however, Service Analyses will not incorporate User Data and Licensee Data, measurement M&E specifics and reports or Confidential Information in a form that could serve to identify the Licensee or any individual (including but not limited to any End User), and Service Analyses do not constitute personal data. All IPR in and to the Service Analyses and related or derivative works shall vest in the Licensor. 
  1.   Services
    1. Use of the Services

The Licensee and the End Users (as the case may be) may access and use the Services only in accordance with this Agreement.

  1. Facilities, data protection and data processing 
    1. The Licensor, in providing the Services, shall comply with all Applicable Laws relating to the privacy and security of the User Data.
    2. The Licensor shall process the personal information only in accordance with the terms of this Agreement and/or the Licensee’s instructions from time to time and shall not process the personal information for any purposes other than those expressly authorised in terms of this Agreement and/or otherwise by the Licensee.
    3. The Licensee agrees that the Licensor may transfer, store, and process the User Data in locations other than the Licensee’s country. This may be done only with written consent from the Licensee.
    4. The Licensor hereby certifies that it adheres to SSL (https) and the principles associated therewith. 
    5. The Licensee warrants that all relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer for the purpose of processing of any User Data by the Licensor as required by all Applicable Laws and undertakes, at its sole expense, to ensure that all future third parties will be informed of, and the Licensee will obtain the consent from such third parties for the use, processing and transfer as required by all Applicable Laws. 
    6. The Licensee shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data and User Data.
    7. The Licensee shall take reasonable steps to ensure that all of its End Users who have access to the personal information are subjected to appropriate confidentiality and non-disclosure requirements.
    8. The Parties acknowledge that for the purposes of the POPIA and any other applicable privacy or data protection law, the Licensee is the responsible party and the Licensor is the operator in respect of any personal information.
    9. The Licensor shall take appropriate, reasonable technical and organisational measures to: (a) secure the integrity and confidentiality of any personal information that it processes; and (b) prevent: (i) the loss of, damage to or unauthorised destruction of personal information; and (ii) unlawful access to or processing of personal information; in accordance with section 19 of POPIA.
    10. The Licensor shall and shall procure that its representatives processing any personal information on behalf of the Licensor shall: (i) process such information only with the knowledge or authorisation of the Licensee, which the Licensee hereby grants to the Licensor in relation to all the Licensee’s Data (including all User Data and Licensee Data); and (ii) treat personal information which comes to its or its representatives’ knowledge as confidential and shall not disclose it; in accordance with section 20 of POPIA.
    11. Each Party agrees to indemnify and keep indemnified and defend at its own expense the other Party against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable due to any failure by the first Party or its representatives to comply with any of its obligations under this clause 7. 
    12. The Licensee acknowledges that the Licensor is reliant on the Licensee for direction as to the extent to which the Licensor is entitled to use and process the personal information provided by the Licensee, its representatives and any End User, including but not limited to any User Data. Consequently, the Licensor will not be liable for any claim brought by a data subject arising from any action or omission by the Licensor, to the extent that such action or omission resulted directly from the Licensee’s instructions or lack thereof. The Licensee may provide specific processing instructions to the Licensor.

Modifications to the Services 

The Licensor may update the Services from time to time. If the Licensor modifies the Services in a manner that materially reduces their functionality, the Licensor will inform the Licensee of such modifications via the email address associated with the Licensee’s account on the Software and may, in the Licensor’s sole discretion, offer the Licensee pro rata License Fees. The Licensee may have the right to terminate or renegotiate the agreement, if the reduced functionality is proven to reduce programmatic outcomes and no agreement can be reached after considering alternate options. 

Implementation, Training and Acceptance 

    1. The Licensor shall implement the Services on a subdomain or custom domain of the Licensee in accordance with the Setup instruction in the Quotation. At the time of such implementation, the Licensor shall provide the Licensee with appropriate documentation for the Services (in a form reasonably acceptable to the Licensee) and the relevant training manuals available online.
    2. At the time of implementation of the Services and for no additional consideration, the Licensor shall provide 2 hours of training to at least 2 (two) employees of the Licensee in the use of the Services online through any platform or means that the Licensor deems appropriate.
    3. Subsequent to the implementation of the Licensor’s Software, the Licensor agrees to provide additional training to the Licensee’s employees for an additional training and certification fee, as more fully described in the Quotation.
    4. In the event that the Licensee fails to notify the Licensor of any difficulties or problems with the Services within 30 (thirty) days after installation thereof, the Licensee shall be deemed to have accepted the Services as provided. Prior to acceptance of such Services, the Licensor shall have the right to repair or replace the Services at its discretion. Upon acceptance of such Services, the Licensor shall be under no obligation to repair or replace the Services except as provided for in clause 13 (Warranties). 

Support

The Licensor will offer its standard technical and training support for the term. Such technical training and support shall be limited to an agreed upon amount of time as agreed by the Parties.. In addition to the aforegoing:

  1. The Licensor shall use commercially reasonable endeavours to make the Services available 24 (twenty four) hours a day, 7 (seven) days a week, except for: (i) planned maintenance scheduled by the Licensor from time to time on no less than 7 (seven) days’ notice to the Licensee; and (ii) unscheduled maintenance, provided that the Licensor has used reasonable endeavours to give the Licensee at least 6 (six) hours’ notice in advance.
  2. Technical support covers access and ‘up-time’ of the system, related to servers, and having access to the database through the domain cited in the schedule. Support queries are to be emailed to hello@thesocialcollective.co and the Licensor undertakes to respond within 24 (twenty four) hours if such support query is received on a Business Day. Should such support query be received on a day which is not a Business Day, the Licensor undertakes to respond within 24 (twenty four) hours from the commencement of the first Business Day following receipt of such support query (it being recorded that for the purposes of this clause 9.2, a Business Day will be deemed to have commenced at 09h00 on that day).
  3. Training support and materials will be provided, electronically, to the Licensee only for the purposes of distribution to End Users and Administrators internally.
  4. Training will be provided to ensure that the Licensee can manage the platform and its functions as an Administrator independently from the Licensor. The Licensor shall provide all necessary training materials to any other employees of the Licensee, who have not received training in terms of clause 8.2, and a certified assessment is available for such employees should the Licensee so require. The information relating to such certified assessment and the fees associated therewith is more fully described in the Quotation or can be requested. The implementation of such certified assessment shall be agreed to in writing by the Parties.
  5. The Licensee may make changes or updates to the Services and/or Software (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, and patterns of system use. The Documentation is subject to change at the Licensor’s discretion; however, the Licensor’s changes to the Documentation will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Licensee for the duration of the Term.

Fees and Payment

    1. General 

The Licensee agrees to pay the fees as set out in Quotation and agrees that such fees are non-refundable except as required by the Consumer Protection Act.     

  1. Taxes 
    1. The Licensee is responsible for all taxes which may be levied in relation to the Services provided to the Licensee in terms of this Agreement including value-added tax. The Licensor will charge tax when required to do so.
    2. If the Licensee is required by Applicable Laws to withhold any taxes, the Licensee must provide the Licensor with an official tax receipt or other appropriate documentation.
  2. Customisation fees
    1. Customisation of and additional support in respect of the Licensor’s Software, outside of the scope of the Services, which may be requested by the Licensee shall be agreed upon by both Parties in writing.  
    2. Any customisation and/or additional support outside the scope of the Services required by the Licensee shall be invoiced and paid for separately in addition to the fee for the Services. 
    3. Any additional customisation required by the Licensee shall be agreed to in writing by the Parties and billed separately from the License Fees and shall be invoiced by the Licensor on commencement of the implementation of such customisation. 
    4. With the exception of the limited customisation provided for in the Quotation, any other customisation requested by the Licensee in terms of clause 10.3.3, shall be quoted separately and billed by the Licensor at an hourly rate.
  3. Fees
    1. Fees are payable to the account provided for in the Quotation. 
    2. The Implementation Fee is payable upon commencement of the technical set up of the Services by the Licensor for the Licensee. 
    3. The Licensee shall pay the Monthly Fee (and customisation fee contemplated in clause 10.3, if applicable) upon receipt of an invoice issued by the Licensor to the Licensee, but in no event later than the last Business Day of each calendar month. 
    4. The Licensee shall pay all fees contemplated in this clause 10.4 to the Licensor without any set-off or deduction and in accordance with this clause 10.
    5. If the Licensor has not received payment within 1 (one) day after the due date, and without prejudice to any other rights and remedies of the Licensor:
      1. the Licensor may, without liability to the Licensee, disable the Licensor’s, Administrators and all the End Users’ passwords, accounts and access to all or part of the Software and/or Services and the Licensor shall be under no obligation to provide any or all of the Services while the amount(s) concerned remain unpaid; and
      2. interest shall accrue on such due amounts at an annual rate equal to 3% (three percent) above the then current base lending rate of the Licensor’s bankers in the Republic of South Africa at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
    6. All fees and other amounts payable by the Licensee under this Agreement shall escalate automatically on 1st March every year in accordance with Consumer Price Index. In addition, the Licensor shall be entitled to increase the fees contemplated in this clause 10.4 and/or any other fees or amounts payable in accordance with this Agreement, on a bi-annual basis by an additional amount not exceeding 6% (six percent) of the then-current amounts payable, upon 30 (thirty) days’ prior notice to the Licensee. Should the Licensee not accept such increase in fees it shall be entitled to terminate this Agreement upon 30 (thirty) days written notice to the Licensor.
  4. Revenue Share Model 
  5. It is recorded that the Licensee may work with the Licensor in implementing a solution to unlock revenue generating opportunities, with referrals to partners, funders, and data (the Solution) in which case, the Parties hereby agree to enter into a services agreement to, amongst other things, describe the details of such solution. In consideration for the licenses granted hereunder and during the Initial Term and for each Extended Term, the Licensee agrees to pay to the Licensor the License Fee in accordance with the relevant fee payment schedule.
  6. In the event that Licensee should require any additional features, support and/or consultancy, the Licensee agrees to pay the Licensor additional associated fees for such additional services. 
  7. At the time of implementation of the Services, the Licensee agrees to pay to the Licensor the Implementation Fee. In the event that any additional instances, features, products and/or services are required, the Licensee agrees to pay to the Licensor an additional implementation fee, quoted for separately , prior to such additional implementation and as agreed in writing between the Parties. 

 

Term & Termination

    1. Term 

This Agreement will remain in effect until the Licensee’s subscription to the Services expires or terminates, or until the Agreement is terminated in accordance with its terms.

  1. Termination for Breach 
    1. Either Party shall be entitled to terminate this Agreement summarily if (i) the other party commits a material breach of its obligations and, provided the breach is capable of being remedied, fails to remedy the breach within 30 (thirty) days of receiving written notice to do so or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days of institution thereof.
    2. Neither Party’s remedies under clause 11.2.1 shall be exhaustive and each such remedy shall be in addition and without prejudice to any of the remedies which the Party may have whether or not expressly provided for in this Agreement.
    3. The cancellation or termination of this Agreement for any reason shall be without prejudice to any obligation by either Party to the other which shall have accrued and become owing at the time of the cancellation or termination. 
  2. Effects of Termination 

If this Agreement terminates for any reason whatsoever: 

  1. the rights granted by the Licensor to the Licensee will cease immediately (except as set forth in this clause 11.3); 
  2. the Licensor may provide the Licensee access to its account at then-current fees so that the Licensee may create copies of its Licensee Data; and 
  3. after 30 (thirty) days, the Licensor shall be entitled to delete any and all Licensee Data relating to the Licensee’s account. 
  1. The following clause will survive the expiration or termination of this Agreement: 1 (Intellectual Property Rights), 10 (Fees & Payment), 11.3 (Effects of Termination), 12 (Confidentiality), 14 (Indemnity), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Disputes), 24 (Third Party Requests), and 27 (Miscellaneous).
  2. This Agreement shall be renewable under review of the terms and developments and as agreed between the Parties in writing. 
  1. Confidentiality
    1. The Licensee recognises that the Services are the proprietary and confidential property of the Licensor and accordingly, the Licensee shall not, without the prior express written consent of the Licensor, during the term of this Agreement and for 1 (one) year thereafter, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any Services provided by the Licensor, provided that such information was not previously known to the Licensee or to the general public. 
    2. The Licensee further agrees to take all reasonable precautions to preserve the confidentiality of the Services and shall assume the responsibility that its employees, sub licensees, and assignees will similarly preserve this information against third parties. 
  2. Warranties
    1. The Licensor represents and warrants that it has no actual knowledge that the Software infringes any valid rights of any third party. This warranty is given in lieu of all other warranties, express or implied, that may arise either by agreement between the Parties or by operation of law. 
    2. The Licensee acknowledges and agrees that the Software and the Documentation have not been developed to meet the Licensee’s individual requirements, and that it is therefore the Licensee’s responsibility to ensure that the Software as described in the Documentation meet its requirements. 
    3. In the event of a claim by the Licensee in respect of the Software, the Licensor shall have the option to either repair or replace the Software. In the event that the Licensor fails to repair or replace the Software within a reasonable period, the Licensee’s sole recourse shall be to terminate this Agreement and the Licensor’s sole obligation shall be to return any License Fees paid by the Licensee during the term of this Agreement, provided that the amount of License Fees which shall be repaid in terms of this clause 13.3 shall be calculated from the date on which the Licensor received and confirmed receipt of a support query, as detailed in clause 9.2. In no event shall the Licensor be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of this Agreement.

Indemnity

      1. By the Licensee 

The Licensee hereby indemnifies, defends, and holds harmless the Licensor from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Licensor and any of its affiliates regarding: 

  1. the Licensee Data and any User Data; 
  2. the Licensee’s use of the Services in violation of this Agreement; or 
  3. any End User’s use of the Services in violation of this Agreement.
  1. By the Licensor 
    1. The Licensor hereby indemnifies, defends, and holds harmless the Licensee from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Licensee that the Licensor’s technology used to provide the Services to the Licensee infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party. 
    2. In no event will the Licensor have any obligations or liability under this section arising from: 
      1. the use of any Services in a modified form or in combination with materials not furnished by the Licensor; and 
      2. any content, information, or data provided by the Licensee, End Users, or other third parties.
  1. Possible Infringement 
    1. If the Licensor believes that the Services infringe or may be alleged to infringe a third party’s IPR, then the Licensor may:
      1. obtain the right for the Licensee, at the Licensor’s expense, to continue using the Services; 
      2. provide a non-infringing functionally equivalent replacement; or 
      3. modify the Services so that they no longer infringe, in the Licensor’s sole discretion, 
    2. provided that if the Licensor fails to procure such alternative mentioned in clause 14.3.1, the Licensee shall be entitled to cancel this Agreement by giving the Licensor 30 (thirty) days’ written notice.
    3. If the Licensor does not believe the options described in clause 14.3.1 are commercially reasonable then the Licensor may suspend or terminate the Licensee’s use of the affected Services (with a pro-rata refund of the License Fees for the Services).
  2. General 
    1. The Party seeking indemnification (the Indemnified Party) will promptly notify the other Party (the Indemnifying Party) of the claim and cooperate with the Indemnifying Party in defending the claim. The Indemnifying Party will have full control and authority over the defence, except that: 
      1. any settlement requiring the Indemnified Party to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and 
      2. the Indemnified Party may join in the defence with its own counsel and at its own expense. 
    2. The indemnities given in terms of this clause 14 are the Licensor and the Licensee’s only remedy under this agreement for violation by the other party of a third party’s IPR.
    3.  
  1. Disclaimers 
    1. The Services are provided “voetstoots“, to the fullest extent permitted by Applicable Laws, except as expressly stated in this agreement and neither the Licensee nor the Licensor and its affiliates, suppliers, and distributors make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement. 
    2. The Licensee and the Licensor shall be responsible for maintaining and backing up any and all data submitted to and/or outputted by the Software through the Licensee’s use of the Services, including but not limited to any User Data and Licensee Data.
  2. Limitation of Liability
    1. Limitation of Liability regarding internet transmissions

The Licensee acknowledges that internet transmissions are never completely private or secure and that any message or information sent using the Services may be read and intercepted by others, regardless of the fact that there may be a special notice that particular transmission is encrypted. The Licensee agrees, to the fullest extent permitted by Applicable Laws that neither the Licensor and its affiliates, suppliers, and distributors will be liable under this Agreement for any loss caused by such interception. 

  1. Limitation on Indirect Liability

To the fullest extent permitted by Applicable Laws neither the Licensee nor the Licensor and its affiliates, suppliers, and distributors will be liable under this Agreement for: 

  1. indirect, special, incidental, consequential, exemplary, or punitive damages, or 
  2. loss of use or data (in each case whether direct or indirect), 

even if the Party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.

  1. Limitation of Liability of the Licensor

To the fullest extent permitted by Applicable Laws, the Licensor shall not be liable for any inaccuracies, errors, misrepresentations, or faults in any outputs generated by or through use of the Services or Software. The Licensee acknowledges and agrees that the outputs generated by or through use of the Services or the Software are products of the Licensee’s Data (including Licensee Data and User Data). The Licensee acknowledges that it should always seek professional advice before making any decision based on the outputs, and that the Licensor shall not be liable for any reliance placed on such outputs by the Licensee, the End Users or any third parties. 

  1. Limitation on Amount of Liability 

To the fullest extent permitted by Applicable Laws, the Licensor’s aggregate liability under this Agreement will not exceed the lesser of (i) R10,000 (ten thousand Rand) and (ii) the amount paid by the Licensee to the Licensor hereunder during the 12 (twelve) months prior to the event giving rise to liability.

  1. Disputes
    1. Informal Resolution 

The Parties hereby agree that should any dispute arise in relation to this Agreement, they shall first endeavour to resolve the dispute by contacting the other Party through the notice procedures in clause 18 (Notices). If such dispute is not resolved within 30 (thirty) days of receipt of written notice initiating the informal resolution procedure in terms of this clause 17.1, the Licensee or the Licensor may proceed to resolve the dispute in terms of clause 17.2.

  1. Arbitration 
    1. In the event of any dispute arising out of or relating to this Agreement, or the breach, termination or invalidity thereof then any Party may give written notice to the other Party to initiate the procedure set out below.
    2. The Parties shall first endeavour to settle the dispute by mediation.
    3. The Parties may agree on the mediation procedure and on the mediator and failing agreement within 5 (five) days of the notice referred to in clause 17.2.1, the mediation shall take place in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Model Conciliation Rules. 
    4. If for any reason, including lack of cooperation by the Parties, a dispute is not settled by mediation within 30 (thirty) days of the notice referred to in clause 17.2.1, or such longer period of time as the Parties may agree to in writing, the dispute shall be settled by arbitration. 
    5. The Parties may agree on the arbitration procedure and on the arbitrator and, failing agreement within 5 (five) days of the exhaustion of the period referred to in clause 17.2.4, the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute. 
    6. The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa).
    7. Unless agreed otherwise, the mediation and the arbitration shall be administered by the Parties.
    8. The number of mediators shall be 1 (one) and the number of arbitrators shall be 1 (one).
    9. The place of the mediation and the arbitration shall be Cape Town, the Republic of South Africa.
    10. Nothing in this clause 17 shall preclude any Party from seeking interim and/or urgent relief from a Court of competent jurisdiction.
  1. Notices
    1. The Parties for the purposes of this Agreement the following addresses, email addresses and, for the purpose of any notices, designated officers:
      1. The Licensor

Physical address: 

Unit 23, 17 Owl Street, Braamfontein Werf, Johannesburg

email address: hello@thesocialcollective.co

  1. The Licensee

As set out in the Quotation:

  1. Any notice required to be given pursuant to this Agreement shall be emailed, return receipt requested or in the case of a notice to be sent by the Licensor to the Licensee, the Licensor shall be entitled, but not obliged, to give such notice to the Licensee via notification on the Software to the End Users making use of the Software. 
  2. Notwithstanding anything to the contrary in this clause 18, a written notice or other communication actually received by any of the Parties (and for which written receipt has been obtained) shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.
  3. Any Party may by written notice to the other Parties change its physical or postal address or email address for the purposes of clause 18.1 to any other physical or postal address or email address provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice.
  1. Jurisdiction and Disputes 
    1. This Agreement shall be governed by the laws of the Republic of South Africa
    2. All disputes hereunder shall be resolved in the applicable courts of the Republic of South Africa. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defences otherwise available.
  1. Agreement Binding on Successors
    1. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto, and their heirs, administrators, successors, and assigns.
  1. Waiver
  2. No failure by a Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way a Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself. 
  3. Severability

If any provision of this Agreement, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

  1. Assignability
    1. The Licensee may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of the Licensor. The Licensor may not assign this Agreement without providing notice to the Licensee, except the Licensor may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets and/or shares without providing notice. Any other attempt to transfer or assign is void.
    2. The License granted hereunder is personal to the Licensee and may not be assigned by any act of the Licensee or by operation of law unless in connection with a transfer of substantially all the assets of the Licensee or with the prior written consent of the Licensor.
  1. Third Party Requests
    1. The Licensee is responsible for responding to Third Party Requests via its own access to information. The Licensee will seek to obtain information required to respond to Third Party Requests and will contact the Licensor only if it cannot obtain such information despite diligent efforts.
    2. The Licensor will make commercially reasonable efforts, to the extent allowed by Applicable Laws and by the terms of the Third Party Request, to: 
      1. promptly notify the Licensee of the Licensor’s receipt of a Third Party Request; 
      2. comply with the Licensee’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and 
      3. provide the Licensee with information or tools required for the Licensee to respond to the Third Party Request (if the Licensee is otherwise unable to obtain the information). If the Licensee fails to promptly respond to any Third Party Request, then the Licensor may, but will not be obligated to do so.
  1. Third-Party Services 
    1. The Services may contain links to other independent third party websites (Third Party Sites). Third Party Sites are not under the control of the Licensor, and the Licensor shall not be responsible for, and does not endorse, the content or the privacy policies (if any) of such Third Party Sites and its administrators. The Licensee will be solely responsible for making its own independent judgement regarding any interaction with any Third Party Sites, including the purchase and use of any products or services accessible through such Third Party Sites. 
    2. The Licensee acknowledges that should it use any third-party service (which includes but is not limited to a service that uses the Licensor API) with the Services: 
      1. the agreement in relation to the use of any third-party service is between the Licensee and such third-party;
      2. the Licensor will not be responsible for any act or omission of the third party, including the third party’s access to or use of the Licensee Data and any User Data; and 
      3. the Licensor does not warrant or support any service provided by such a third party.
    3. If it is agreed between the parties that the Software is to be hosted on the Licensee’s servers as opposed to the Licensor’s servers, the Licensee acknowledges that the Software may be dependent on various supporting software (Supporting Software). The Licensee accepts that in order to use the Software, the Licensee will need to install and license such Supporting Software. This Supporting Software may be upgraded, added or removed from time to time, and the Licensee will cooperate fully in this regard. 
    4. While all Supporting Software that forms part of the solution on a server architecture level is open source and does not require any additional licensing fees, there may be Supporting Software from time to time that requires additional licensing fees, which fees shall be borne by the Licensee in full. 
  1. Suspension
  1. Of End User Accounts by the Licensor 
    1. If an End User: 
      1. violates this Agreement including any applicable obligation on the Licensee under this Agreement; or 
      2. uses the Services in a manner that the Licensor believes in its sole discretion (acting reasonably) will cause it liability, then the Licensor may request that the Licensee suspend or terminate the applicable End User account. If the Licensee fails to promptly suspend or terminate the offending End User account, then the Licensor may do so upon written notice to the Licensee.
  2. Security Emergencies 

Notwithstanding anything in this Agreement, if there is a security emergency then the Licensor is entitled to unilaterally suspend use of the Services. 

  1.  Miscellaneous
    1. Terms Modification

The Licensor may revise this Agreement from time to time by notifying the Licensor via the Website and/or by means of an email with details of the change and/or notifying the Licensor of a change when the End Users next make use of any of the Services and/or the Documentation. If a revision, in the Licensor’s sole discretion, is material, the Licensor will notify the Licensee (by, for example, sending an email to the email address set out in clause 18). Other revisions may be posted to the Licensor’s blog or terms page, and the Licensee is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, the Licensee agrees to be bound by the revised Agreement. If the Licensee does not agree to the revised Agreement terms, the Licensee shall be entitled to terminate the Services within 30 (thirty) days of receiving notice of the change. 

  1. Entire Agreement 

This Agreement, together with the Licensor’s invoice, constitutes the entire agreement between the Licensee and the Licensor with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will be controlled in the following order: the invoice, the Quotation and     this Agreement.

  1. No Agency 

The Licensor and the Licensee are not legal partners or agents, but are independent contractors.

  1. Force Majeure 

Except for payment obligations, neither the Licensor nor the Licensee will be liable for inadequate performance to the extent caused by a delay caused by circumstances beyond the reasonable control of either Party including but not limited to acts of God, war, riots not instigated by the Licensor or the Licensee civil insurrection, acts of the public enemy, acts of civil or military authority, fires, floods, earthquakes, or tempests. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations.

  1. No Third-Party Beneficiaries 

This is an agreement between the Parties only and no rights are stipulated for the benefit of any third party. For the avoidance of doubt and without limiting this clause 30, it is specifically recorded that the Licensee’s End Users are not third-party beneficiaries to the Licensee’s rights under this Agreement