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TEN4 Web Solutions

Standard Terms and Conditions of Trade


TEN4 STANDARD TERMS AND CONDITIONS OF TRADE
Relating to online software applications

This Software Licence and Support Agreement ("Agreement") is a legal agreement between you, either an individual or an entity, ("Licensee") and the licensor, Diamond Hill 139 CC (trading as Ten4 Web Solutions) (hereinafter referred to as "Ten4") for the accompanying computer software product(s), associated materials and documentation ("Software"). By utilising, displaying, copying, accessing or otherwise using the Software, the Licensee agrees to be bound by the terms of this Agreement.

1. LICENCE
 
  1.1 Subject to the terms of this Agreement and payment of all applicable fees ("Licence Fee"), Ten4 grants to Licensee a non-exclusive and non-transferable licence to install and use the Software solely for the internal business purposes of the Licensee ("Licence"). Where the Licensee is an entity, its employees, agents and subcontractors shall be covered under this Agreement. Where the Licensee is a teaching establishment, the teaching staff, researchers and students shall be covered under this agreement.
  1.2 Licensee shall use the Software only in accordance with its documentation.
  1.3 Subject to clause 7.7.1, Ten4 will provide Licensee with upgrades, should there be any, to the Software free of charge for the duration of the agreed rental period.
  1.4 Licensee may enable multiple users to share the Software via remote access or computer virtualisation.
  1.5 The term of the License is perpetual unless the Licensee is renting the software for a set period, in which case the term of the License will be defined in a separate written agreement between the parties and enforced via Ten4 licensing software.
 
2. AGREEMENT
 
  2.1 The copyright, patents, trade marks and all other intellectual property rights in the Software and related documentation are owned by and remain the property of Ten4 or its suppliers.
  2.2 Licensee does not obtain any rights in the Software other than those expressly granted in this Agreement.
 
3. RESTRICTIONS ON USE
 
  3.1 Except as expressly permitted by this Agreement or authorised in writing by a director of Ten4, Licensee shall not, nor permit others to:
    3.1.1 use, copy, modify, create derivative works from or distribute the Software, any part of it, or any copy, adaptation, transcription, or merged portion of it, except to the extent that the foregoing acts are permitted by law;
    3.1.2 decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Software or any part of it, except to the extent that the foregoing acts are permitted by law;
    3.1.3 exploit or sell the Software commercially;
    3.1.4 use the Software in any country that is not stated in the billing address submitted by Licensee to Ten4 at the time of purchase;
    3.1.5 incorporate the Software into programs not provided by Ten4;
    3.1.6 transfer, loan, lease, assign, charge, rent, or otherwise sublicense the Software or this Agreement;
    3.1.7 use the Software in any manner that infringes the intellectual property or other rights of Ten4 or any other party;
    3.1.8 remove or alter any copyright, proprietary or similar notices from the Software (or any copies of it);
    3.1.9 operate the Software or any part of it for the benefit of or on behalf of any third party, including by way of application service provider services, internet service provider services, timesharing arrangements, outsourcing services or bureau services;
    3.1.10 use the software for commercial purposes if it has been licensed to a teaching establishment, student/s for educational purposes or social welfare organisations.
    3.1.11 include any pornography, hate speech or any content that could be deemed to be offensive or derogatory. Ten4 in its sole discretion will have the right to cancel or suspend this agreement in its entirety, should Ten4 in its sole discretion regard content as such. In this case, there will be no compensation to the licensee of any nature.
 
4. WARRANTIES AND REPRESENTATIONS
 
  4.1 Ten4 warrants and represents to Licensee that:
    4.1.1 it has the right to grant to Licensee a licence to use the Software set out in this Agreement;
    4.1.2 the use of the Software in accordance with the terms of this Agreement will not infringe the intellectual property rights of any third party; and
    4.1.3 the Software will perform substantially in accordance with its documentation and specification.
  4.2 Ten4 does not warrant that:
    4.2.1 the operation of the Software will be uninterrupted or error-free; or
    4.2.2 the Software will meet Licensee's particular requirements, whether or not those requirements have been made known to Ten4.
 
5. LIABILITY
 
  5.1 Licensee shall indemnify Ten4 and keep Ten4 fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with:
    5.1.1 any breach by Licensee of this Agreement;
    5.1.2 a breach of copyright or other intellectual property or proprietary right;
    5.1.3 a breach of confidence by the Licensee, his servants, agents, employees and contractors;
    5.1.4 use of Software for illegal use by Licensee;
    5.1.5 use of Software in a manner that a third party’s rights are infringed;
    5.1.6 use of Software for purposes of unsolicited spam mail; or
    5.1.7 not using Software for purposes not allowed in terms of this Agreement
  5.2 Ten4 shall not be liable for any of the following types of loss or damage even if Ten4 has been advised of the possibility of such loss or damage:
    5.2.1 indirect or consequential loss;
    5.2.2 loss of profits, revenue, contracts or anticipated savings;
    5.2.3 loss arising out of any delay or loss of time; or
    5.2.4 loss or damage arising from loss, damage or corruption of any data.
  5.3 Ten4 shall not be liable for any defect to the extent it results from:
    5.3.1 use of the Software otherwise than in accordance with its documentation and this Agreement;
    5.3.2 any modification of the Software not carried out or authorised in writing by Ten4;
    5.3.3 failure of electric power or environmental control systems; or
    5.3.4 failure of hardware, software or other products or services not supplied by Ten4 or any other matter beyond the reasonable control of Ten4.
  5.4 Without prejudice to Clause 5.2 and Clause 5.3, the total liability of Ten4 under or in connection with this Agreement whether in contract, negligence or otherwise, shall be limited to R5 000 for the Software giving rise to a liability.
 
6. PAYMENT
 
  6.1 The Licence Fee is due and payable in full upon delivery of the Software and payment is received by Ten4, together with subsequent payments received by Ten4 on the anniversary of this agreement.
  6.2 Payment of any other amount, including annual support fees, owed by Licensee to Ten4 pursuant to this Agreement shall be paid within thirty (30) days following invoice from Ten4. In the event any overdue amount owed by Licensee is not paid following ten (10) days notice from Ten4, then Licensee shall pay in addition a late payment charge at the rate of 2% per month on any overdue amount.
 
7. SUPPORT
 
  7.1 Licensee shall nominate one or two persons to be the point of the contact ("Contact") for any Support requested and received. Support will only be provided to the Contact and Licensee must ensure that the Contact is a competent and knowledgeable user of the Software.
  7.2 Licensee is entitled to the following services ("Support") for a period of one year from the date of registration of the Software with Ten4 or, if the Software is rented, for the duration of the agreed rental period:
    7.2.1 updates to the Software including new releases and patches
    7.2.2 technical advice on the use of the Software, delivered by such means as Ten4 deem appropriate at the time. This may include but is not restricted to, telephone, email, fax and Internet based communication. In order to provide a flexible service, Ten4 reserves the right to change its support delivery methods without notice;
      a) Ten4 shall endeavour to respond and resolve a problem within two business days. However, in giving response, a solution to the problem in question cannot be guaranteed; and
      b) if an issue cannot be resolved by first line support it will be escalated to second line support. Ten4 will use reasonable endeavours to keep the Contact informed of progress throughout this process. If second line support cannot resolve the issue then it will be passed to Ten4 development staff. When a problem is considered mission critical, Ten4 will use reasonable endeavours to issue an "Emergency Patch" to resolve the problem.
  7.3 Licensee may extend the right to receive Support for additional periods by notifying Ten4 in writing and paying Ten4 the support fee then in effect.
  7.4 Ten4 reserves the right to refuse to provide Support on superseded versions of the Software once a new version has been available for six months.
  7.5 Ten4 may elect to discontinue Support at any time upon notice to Licensee and refund any then unearned support fee.
  7.6 All maintenance releases, when delivered and installed, shall become part of the Software and shall be subject to this Agreement.
  7.7 Ten4 will not, under this Agreement, provide:
    7.7.1 versions of Software that contain platform upgrades, substantial additional functionality or improved performance;
    7.7.1 any consultancy advice including, but not limited to, best-practice technical advice, data conversion, engineering advice.
  7.8 Ten4 is not obliged to provide Support if any of the following occurs:
    7.8.1 malfunction of hardware or operating system software;
    7.8.2 negligence by Licensee;
    7.8.3 Licensee changes to an un-supported operating system;
    7.8.4 a point of contact is deemed by Ten4 to be insufficiently competent with the Software for the issue to be tackled effectively; or
    7.8.5 where the problem is caused by third party applications that have not been developed by Ten4.
 
8. TERMINATION
 
  8.1 Although Licensee may terminate this Agreement without notice at any time, the rental agreement is annual and pre-paid. Should Licensee opt to cancel the Agreement, Ten4 will not be obliged to refund any of the rental fees relating to the balance of the particular year.
  8.2 Ten4 may terminate this Agreement without notice if Licensee fails to comply with any term or condition of this Agreement.
  8.3 On expiry or termination of this Agreement, Licensee shall cease all use of the Software.
  8.4 All terms which by their nature, including clause 2, 5, and 12, should survive termination or expiration of this Agreement shall survive.
 
9. FORCE MAJEURE
 
  9.1 Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond their control and without negligence of the parties.
 
10. NO WAIVER
 
  10.1 No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of the party under this Agreement.
 
11. SEVERABILITY
 
  11.1 If it is held under any enactment or rule of law that any provision of this Agreement is void or otherwise ineffective in whole or in part then any other part and the other terms and conditions of this Agreement shall continue in full force and effect.
 
12. PUBLICITY
 
  12.1 Ten4 may, without the prior written consent of Licensee, advertise or publicly announce that they are providing services to Licensee.
 
13. ENTIRE AGREEMENT
 
  13.1 This Agreement is the complete and exclusive statement of the agreement between the parties which supersedes all proposals or prior agreements oral or written and save as expressly set out in this Agreement all representations, conditions or warranties express or implied statutory or otherwise are excluded, to the maximum extent permitted by law.
 
14. VARIATION
 
  14.1 A purported variation of this Agreement is not effective unless in writing signed by an authorised senior representative of both parties.
 
15. NOTICES
 
  15.1 Any notice or consent required or given under this agreement shall be in writing, in English, either personally delivered or sent by email, fax, or by first class airmail, and sent to the registered address of the receiving party or such other address as such party may from time to time designate by notice to the other party.
  15.2 Communications shall be deemed to have been received as follows:
    15.2.1 (if sent by post) three business days after posting;
    15.2.2 (if delivered by hand) on the day of delivery, if delivered at least two hours before the close of business hours on a business day, and otherwise on the next business day;
    15.2.3 (if sent by fax) at the time of transmission, if received at least two hours before the close of business hours on a business day, and otherwise on the next business day.
    15.2.4 (if sent by email) upon receipt of an acknowledgement email confirming the receipt of the email message, if received at least two hours before the close of business hours on a business day, and otherwise on the next business day. An automatic reply shall not be deemed as the acknowledgement of an email message, In this clause, "business hours" means between the hours of 09.00 and 17:30 GMT+2.
 
16. THIRD PARTY RIGHTS
 
  16.1 The parties do not intend that any term of this Agreement shall be enforceable by any person who is not a party to this Agreement.
 
17. LAW
 
  17.1 This Agreement shall be governed by and construed in accordance with South African law.
  17.2 The South African courts shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this Agreement.
 
18. ACCEPTANCE
 
  18.1 This Agreement shall be deemed to have been concluded once payment has been received by Ten4.
 
 









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