YOU SHOULD CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. INSTALLATION OR USE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
DATAFOX (PTY) LTD. (“CIBECS”) AND ITS AFFILIATED ENTITIES AGREE TO LICENSE THE LICENSED SOFTWARE AND RELATED DOCUMENTATION TO YOU (PERSONALLY AND/OR ON BEHALF OF YOUR EMPLOYER) PROVIDED YOU ACCEPT ALL THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (“AGREEMENT“). BY INSTALLING OR USING THE LICENSED SOFTWARE OR AUTHORISING ANY OTHER PERSON TO DO SO, YOU AND THEY ACCEPT, ON EACH SUCH OCCASION, THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WITHIN 14 DAYS OF INSTALLATION OF THE SOFTWARE, BUT BEFORE ACTIVATION OF THE SOFTWARE LICENCE KEY, YOU MAY RETURN THE LICENSED SOFTWARE, ALONG WITH ALL ACCOMPANYING DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE, TO CIBECS OR TO THE CIBECS RESELLER FROM WHOM YOU OBTAINED IT, FOR A REFUND OF YOUR LICENSE FEE LESS A 10% HANDLING FEE.
Subject to your compliance with the terms and conditions of this Agreement and payment of the applicable license fees, Cibecs grants you a, non-exclusive, non-transferable, non-sublicensable license to use the enclosed executable code version of the computer software including any Cibecs created modifications, corrections or updates supplied to you now or under a Maintenance/Support program (“Licensed Software”) and all associated user manuals, release notes, installation notes, and other materials delivered with the Licensed Software in hard copy or electronic formats (“Documentation”), for the duration indicated in your purchase order and for which you have paid the applicable license fees.
You may use the Licensed Software and Documentation solely for your internal business operations on the number of computer systems, platform types and hardware tiers as indicated in your purchase order and for which you have paid the applicable license fees, for the country in which the Licensed Software was furnished to you. You may install and use the Licensed Software for which you have received, from Cibecs or its resellers, a valid Cibecs software license key code to manage up to the number of Nodes specified in your purchase order. “Node” with respect to Cibecs Continuity means a workstation, computer or server. You may make a single copy of the Licensed Software and Documentation for archival and disaster recovery purposes only, provided you reproduce all copyright and other proprietary notices contained in the original copy of the Licensed Software and Documentation. The Licensed Software and Documentation is licensed, not sold, to you for use pursuant to the terms of this Agreement.
Cibecs and/or its suppliers retain all right, title and interest in the Licensed Software and Documentation itself, to all patents, copyrights, trade secrets, trademark and all other intellectual property rights embodied in the Licensed Software and Documentation and in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software or Documentation and, insofar as may be necessary, you hereby cede and assign the rights to any such improvements and/or modifications and/or enhancements to Cibecs. You also undertake not to infringe or prejudice any such intellectual property rights. Your rights to use the Licensed Software and Documentation shall be limited to those expressly granted in this Section 1. All rights not expressly granted to you are retained by Cibecs and/or its suppliers.
Notwithstanding any provision of this Agreement to the contrary, the following terms and conditions shall apply to any Licensed Software acquired by you for purposes of evaluation. Any evaluation license for the Licensed Software shall terminate 30 days from the date of activation by means of the software license key code or such longer period as Cibecs in its sole discretion may allow. The Licensed Software may be used solely for internal non-commercial evaluation. You may not use an evaluation copy of the Licensed Software for any purpose, including production use, other than evaluation. The Licensed Software may not be transferred, is licensed to you without fee, and is provided “AS IS” without warranty of any kind. To the maximum extent permitted by applicable law, you agree to release, defend and indemnify and hold Cibecs harmless from any claims and/or damages of any kind, by any party or entity, arising out of your use of the Licensed Software for evaluation. All other terms and conditions of this Agreement shall otherwise apply to the Licensed Software.
You agree not to cause or permit the use, copying, modification, rental, lease, sublease, sublicense, publication or transfer of the Licensed Software or Documentation, except as expressly provided in this Agreement. You may not: (i) create any derivative works based on the Licensed Software or Documentation; (ii) reverse engineer, disassemble, or decompile the Licensed Software; (iii) use the Licensed Software or Documentation in connection with a service bureau or like activity whereby you, without purchasing a license from Cibecs, operate or use the Licensed Software or Documentation for the benefit of a third party who has not purchased a copy of the Licensed Software; (iv) permit the use of the Licensed Software or Documentation by any third party without the prior written consent of Cibecs; or (vi) With respect to the Continuity Server: use the licensed software on any device other than the licensed device being used as the Continuity Server and with respect to the Agents, Plug-ins and Control Centre: use the licensed software for more than the specified number and level of nodes, including but not limited to servers, desktops and notebooks as licensed on the Continuity Server. In addition, you shall not alter, remove or tamper with any of the product identification, trademarks, copyright or other notices or serial numbers appearing on the Licensed Software or release the results of any benchmark testing of the Licensed Software to any third party without the prior written consent of Cibecs. This agreement does not grant you any rights in connection with any trademarks or service marks of Cibecs.
Information regarding the performance of Cibecs will be sent to Cibecs on a regular basis. The information sent to Cibecs is limited to the operating system version and computer hardware in use; your Cibecs License details, which could be used to identify your license and the performance of Cibecs such as the protection rating and any errors.
We do not collect any of your files or user data or any other form of personally identifiable information and we will not have any access to any of your data or your encryption keys at any time. The data that we collect will only be used to monitor the performance of your Cibecs installation in order to assist us in enhancing the product. If you do not wish to have your data uploaded to Cibecs please deselect the option in the Control Centre and no data will be sent to us.
You may, as a perpetual license user, acquire maintenance/technical support services (“Maintenance/Support”) for the Licensed Software provided that you subscribe to Cibecs’ Maintenance/Support programs via an authorized Cibecs reseller. Maintenance/Support shall be based on the in-country list price and then applicable Maintenance/Support policy in effect at the time such Maintenance/Support is ordered. Maintenance/Support fees are due annually in advance and are nonrefundable and non-cancelable. As a subscription license user, you will receive Maintenance and Telephonic Support as part of your subscription installment from your Cibecs reseller. Additional support can be procured from your Cibecs reseller.
You may acquire under a separate agreement, training, installation, implementation, configuration, professional or consulting services (“Services”) from an authorized Cibecs reseller pursuant to the then applicable Cibecs Services policies and the in-country list prices in effect at the time the Services are ordered.
7.1. Licensed Software Performance Warranty; Media Warranty. Cibecs warrants that the Licensed Software, as delivered by Cibecs and when used in accordance with the Documentation, shall substantially conform with the Documentation for a period of 90 days from delivery and that the media upon which the Software is furnished to you shall be free from defects in material and workmanship under normal use for a period of 90 days from delivery.
7.2. Licensed Software Warranty Remedies. For any Licensed Software that does not operate as warranted in Section 6.1 Cibecs shall, at its sole discretion, either repair the Licensed Software, replace the Licensed Software with software of substantially the same functionality, or terminate the license and refund the relevant license fees paid for such noncompliant Licensed Software only when you return the Licensed Software to Cibecs or its authorized reseller who sold it to you, with the purchase receipt within the warranty period.
7.3. Maintenance/Support Warranty. Cibecs warrants that for the duration of the license agreement that the Maintenance/Support shall be performed in a manner consistent with generally accepted industry standards.
7.4. Maintenance/Support Remedies. For Maintenance/Support not performed as warranted in Section 7.3, and provided Cibecs has received written notice of such non-conformance within 30 days of performance of the Maintenance/Support, Cibecs shall, at its discretion, either correct any nonconforming Maintenance/Support or refund the relevant fees paid for the specific nonconforming Maintenance/Support service.
7.5 Exclusions. The above warranties set forth in this Section 7 specifically exclude defects resulting from any modification, reconfiguration, or maintenance of the Licensed Software performed by any party other than Cibecs; any use of the Licensed Software on a system that does not meet Cibec’s minimum standards; failure to implement all updates provided by Cibecs; use of the Licensed Software in a manner for which it was not designed; and/or defects resulting from accident, abuse, repair, modifications, enhancements, misapplication, or other misuse of the Licensed Software.
7.6. DISCLAIMERS. THE WARRANTIES SET FORTH IN SECTION 7 ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. CIBECS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF STATUTORY NON-INFRINGEMENT. NO THIRD PARTY, INCLUDING AGENTS, DISTRIBUTORS, OR AUTHORISED CIBECS RESELLERS, IS AUTHORISED TO MODIFY ANY OF THE ABOVE WARRANTIES OR MAKE ANY ADDITIONAL WARRANTIES ON BEHALF OF CIBECS. CIBECS DOES NOT WARRANT THAT THE LICENSED SOFTWARE SHALL MEET YOUR REQUIREMENTS OR THAT USE OF THE LICENSED SOFTWARE SHALL BE UNINTERRUPTED OR ERROR FREE.
7.7. This limited warranty gives you specific legal rights. You may have others which vary from jurisdiction to jurisdiction. Nothing in this agreement shall exclude or limit any liability of Cibecs which cannot be excluded or limited by any law or regulation applicable to this agreement.
This Agreement is effective until terminated. This Agreement, including without limitation your right to use and copy the Licensed Software as specified above, terminates immediately and without notice from Cibecs if you fail to comply with any of its provisions. Upon termination you shall immediately discontinue use of and destroy the Licensed Software and all copies or portions thereof, including any master copy, and within 10 days certify in writing to Cibecs that all copies have been destroyed. Your payment obligations incurred prior to termination shall survive termination of this Agreement.
IN NO EVENT SHALL CIBECS OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY PERSON FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, LOSS OF PROFITS, LOSS OF, OR CORRUPTION OF DATA, LOSS OF PRODUCTION, LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME, OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PRODUCT, EVEN IF CIBECS, ITS RESELLERS, SUPPLIERS OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS LIMITED BY APPLICABLE LAW, REGARDLESS OF THE LEGAL BASIS FOR YOUR CLAIM, CIBECS AND ITS SUPPLIERS’ TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa, and without regard to principles of conflicts of law. Any suits concerning this Agreement shall be brought in the High Court of the Republic of South Africa. This Agreement is personal and may not be assigned or assumed (including by operation of law or a change of control) without Cibecs’ prior written consent. During the period this Agreement remains in effect, and for three years thereafter, Cibecs has the right to verify your compliance with this Agreement on your premises during your normal business hours and in a manner that minimizes disruption to your business. Cibecs may use an independent auditor for this purpose with your prior approval which you will not unreasonably withhold. If the audit reveals overdue payments in excess of 5% of the payments owed in any month, Licensee shall pay the cost of such audit. If any provision of this Agreement is held to be unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other subsequent breach or default. Unless you have entered into a separate, written and signed agreement with Cibecs for the supply of the Licensed Software, this Agreement is the complete and exclusive statement of the agreement between us which supersedes any proposal, prior agreement, oral or written, purchase order or similar terms issued by you, or any other communications between us in relation to the subject matter of this Agreement. Any modifications to this Agreement shall be made in writing and must be duly signed by authorized representatives of both parties or they shall be void and of no effect. This Agreement shall control over any conflicting provisions of any customer purchase order or other similar business form, and such conflicting provisions are expressly rejected.
Datafox (Pty) Ltd
25 Boschkop Avenue
Gauteng, South Africa
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