Terms & Conditions

GENERAL PROVISIONS

BASIS OF AGREEMENT

  • 1.1 Where Software (as specified in the applicable ordering document) is supplied to a Customer the terms of this Agreement shall govern access to and use of the said Software.
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  • 1.2 The following definitions apply to this Agreement:
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  • “Additional User” means a User above the number of Users specified in the applicable ordering document.
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  • “Affiliates” means entities controlling, controlled by or under common control with Supplier.
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  • “Agreement” means (subject to clause 8.1.1) the terms and conditions set out in this document (“Terms and Conditions”); the applicable ordering document (together with any renewal thereof); and Special Conditions (if any) agreed between Supplier and Customer. In case of conflict between the documents comprising this Agreement, the documents comprising the Agreement shall prevail in the following order of precedence: 1. these Terms and Conditions; 2. Any amendments to these Terms and Agreements on renewal; 3. Special Conditions; 4 Order Form.
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  • “Charges” mean the fees payable by Customer for the licensing of the Software as specified in the applicable ordering document or online subscription.
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  • “Customer” means entity specified as the customer on the applicable ordering document or online subscription.
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  • “Competitor” shall mean a third party that is regularly engaged in the business of developing or marketing software that performs the same or similar functions as one or more of the modules of the Software licensed hereunder by Customer.
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  • “Control” means an entity will be deemed to Control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
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  • “Documentation” means the User Guide(s) or videos published from time to time for the relevant software.
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  • “Initial Subscription Period” means the period from the Start Date to the Initial Expiry as specified in the applicable ordering document; where the Start Date for the Software has for any reason to be adjusted, Supplier may at its discretion adjust the Initial Subscription Period to run from the revised Start Date.
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  • “Renewal Period” means each successive 12 month period (or such other period as the parties may agree) following the expiry of the Initial Subscription Period.
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  • “Popia” The protection of personal information act 4 of 2013.
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  • “Special Conditions” means individually negotiated variations, amendments and/or additions to these Terms and Conditions or those of an ordering document and are deemed to be included in this Agreement.
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  • “Software” means any software or system as specified in the applicable ordering document.  Whether owned by the supplier or redistributed.
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  • “Start Date” in respect of each Software licensed means the later of (a) the date specified as the date on which access to the Software is intended to start and (b) the actual date on which access to that Software is given.
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  • “Supplier” means Quadrivium Solutions, (Company No. 2002/021985/23). Registered in South Africa.
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  • “Term” in respect of each Software licensed comprises the Initial Subscription Period and any Renewal Period in relation to that Software.
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  • “Trial Period” means a period during which Customer may trial the Software without charge (unless otherwise agreed), the length of which will be notified to Customer.
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  • “Updates” mean any periodic Software releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Software; or 2) resolving technological issues related to Customer’s then-current Version of the Software.
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  • “User” means personnel of Customer authorized by Supplier and Customer to use the Software as more particularly specified in the applicable ordering document.
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  • “Version” means a new release of the Software (outside a point release) that includes a major revision, alteration, improvement, modification, or the like, to the current Software release.

2) SOFTWARE LICENCE

  • 2.1 Grant
  • Supplier grants the Customer a non-exclusive, non-transferable, limited licence to use for the number of Users, the Software, in object code only, in Customer’s normal course of business (including the version initially licensed together with any updates included in the subscription, but excluding any new software feature or substantial additional functionality for which the Supplier, in its sole discretion, generally charges customers of the Software additional charges) (“Software”).  A “Site” means all personal computers, servers or minicomputers (including networked systems) with the same operating system platform at a single location or at different locations which are connected by a single networked system (i.e., any combination of two or more terminals that are electronically linked and capable of sharing the use of a single software product). In addition, Users who work at or are assigned to the licensed Site may use the Software on personal computers or laptops located off-site, subject to the policies of the Customer and the Popia.  The Software is protected by copyright.
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  • 2.2 Copying
  • Customer may not make copies of the Software. All copying is prohibited.
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  • 2.3 Other
  • Restrictions Customer may not publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer Software or copies to third parties, nor reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software. Customer may not use the Software, nor allow the Software to be used, to provide data management or processing services for third parties. Customer may not reproduce all or any portion of the Software (except as expressly permitted herein) or any accompanying Documentation, or modify, translate or otherwise create derivative works of the Software. Customer agrees to notify its employees and agents who may have access to Software of the restrictions contained herein and to ensure their compliance with these restrictions.
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  • 2.4 Other
  • Licences The Software may be used to access and use various Supplier products and services, (“Supplier Services”). All access to and use of such Supplier Services by means of the Software, including any charges for such access and use, will be governed by the terms applicable to the relevant Supplier Services.
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  • 2.5 Title
  • The Customer hereby acknowledges and agrees that all rights, titles and interests in and to the Software, the Documentation and any other related materials are, and shall remain, vested solely in the Supplier, its Affiliates and other software owners, if any, and the Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, the Customer agrees that it shall make no use of the Software, the Documentation or any other related materials without Supplier’s prior written consent.  Any and all goodwill associated with such rights shall insure directly and exclusively to the benefit of Supplier.
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  • 2.6 Trial
  • Terms Save for the provisions in respect of Charges, the terms of this Agreement shall apply to the Customer during any Trial Period. This Agreement will terminate at the end of the Trial Period and Customer’s licence and right to use the Software will cease at the end of the Trial Period unless a further Trial Period is agreed or where Customer subscribes to the Software from the expiry date of any such Trial Period.

3) CONFIDENTIAL INFORMATION

  • 3.1 The Supplier acknowledges that any documents, the contents thereof, or other proprietary or confidential materials expressly designated as confidential that are provided to Supplier by Customer during the Term of this Agreement (“Customer Confidential Information”) are valuable assets of Customer. Supplier will take reasonable steps to ensure that the Customer Confidential Information is not used or disclosed except as expressly permitted by this Agreement.  The Supplier will not permit any unaffiliated third party access to, in any manner, the Customer Confidential Information, except as provided in this Agreement. Customer Confidential Information shall not include information that consists of ideas, concepts, know-how or techniques relating to the enhancement, customisation, installation or implementation of the Software.
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  • 3.2 The Customer acknowledges and agrees that the Software constitutes a valuable proprietary product of the Supplier and that the Software, together with the terms of this Agreement, and any documentation provided, shall be referred to as the “Supplier Confidential Information.” The Customer will take reasonable steps to ensure that the Supplier Confidential Information is not used or disclosed except as expressly permitted by this Agreement. The Customer will not permit any third party access to, in any manner, the Supplier Confidential Information, except as provided in this Agreement. The Customer may permit its independent contractors access to the Supplier Confidential Information to the extent necessary for such contractor’s provision of services to the Customer if such contractor executes a confidentiality agreement with the Customer or the Supplier which prohibits the contractor from using or disclosing the Supplier Confidential Information; provided, however, that such independent contractors may not include any Competitor.

4) CHARGES

  • 4.1 The Charges payable by the Customer for use of the Software will be as specified in the applicable ordering document or online order and will cover the Software licence, maintenance, and support services as provided in clauses 9 and 10 of this Agreement. Maintenance and support will be charged additionally as requested by the customer.
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  • Charges And Modifications:
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  • 4.2.1 The Customer shall pay the Charges for the Software for the Initial Subscription Period and any Renewal Period (and Trial Period where so agreed) or as otherwise provided for by this clause 4.4.2.2 Where the Customer requests access to any Software for an Additional User, each Additional User will be charged for at the Additional User fee rate, pro-rated, for the remainder of the Initial Subscription Period or the then-current Renewal Period (as applicable), unless otherwise specified on the ordering document.
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  • 4.2.3 Each Additional User fee will be billed to the Customer at the end of the month in which the said User was given access by the Supplier.
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  • 4.2.4 The parties agree to enter into good faith negotiations regarding this Agreement (including the financial provisions) if either party deems there is a material change in the Customer’s organisational structure, including, but not limited to mergers, acquisitions, a significant increase in the number of relevant personnel at a site, divestitures or downsizing.
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  • Notification of Proposed Charges for Renewal Period:
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  • 4.2.5 Where the Supplier wishes to make no increase in the Charges and/or Additional User fees (“Proposed Charges”) for a Renewal Period then unless notice of termination is served by the Customer in accordance with clause 7.2.3, then the Term shall be deemed to be extended for the Renewal Period.
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  • 4.2.6 Where the Supplier wishes to modify the Charges for the Renewal Period (“Proposed Charges”) in respect of any Software, the Supplier will endeavour to issue the Customer with a renewal notification specifying the Proposed Charges for each relevant Software (“Renewal Notification”) not less than 1 calendar month before the end of the Initial Subscription Period (or Renewal Period, if applicable).
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  • 4.2.7 The Customer is deemed to agree to extend the Agreement for the Renewal Period and to pay the Proposed Charges for each relevant Software for the Renewal Period, either:
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  • (a) on the expiry of the “Objection Deadline” (being 1 calendar month after the date of the Renewal Notification, unless the Supplier has prior to that date received notice in writing that the Customer does not accept the Proposed Charges); or
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  • (b) after bona fide discussions as provided for by clause 6.2.9, have resulted in agreement on the Proposed Charges;whichever is the later, and thereafter these Proposed Charges shall not amount to a Detrimental Amendment for the purposes of clause 7.2.1 hereof.
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  • 4.2.8 Where, on expiry of the Initial Subscription Period or Renewal Period (as applicable), the Objection Deadline has not elapsed, the Supplier shall have the option to continue supplying each relevant Software on the terms of this Agreement until the Objection Deadline elapses and shall be entitled to invoice the Customer for Charges incurred at the existing rates. On expiry of the Objection Deadline, unless clause 6.2.9 applies, the Supplier shall be entitled to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and the expiry of the Objection Deadline.
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  • 4.2.9 Where, on expiry of the Objection Deadline, the Proposed Charges are under active bona fide discussion between the parties, the Supplier shall:
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  • (a) whilst, in the Supplier’s reasonable opinion, such discussions are proceeding without undue delay, continue supplying each relevant Software on the terms of this Agreement during that period and to bill the Customer for Charges incurred at the existing rates;
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  • (b) be entitled, once agreement has been reached on Proposed Charges, to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and such agreement being reached; and
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  • (c) in the event that such agreement is not reached within a reasonable period, at the Supplier’s sole discretion have the right to require and the Customer shall cease all use of the Software, and confirm by email to the Supplier on [email protected] or [email protected] that the use of the said Software has been terminated.
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  • Billing and Payment:
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  • 4.2.10 All Charges are exclusive of applicable sales, use, value added, and other taxes, which are additionally payable by the Customer.
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  • 4.2.11 All Telecoms charges incurred in using any Software are the responsibility of the Customer.
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  • 4.2.12 The Customer will pay any undisputed invoice rendered by the Supplier in full within 7 days of invoice date.

    4.2.13 If full payment is not made by the due date, except to the extent that any part non-payment relates to a bona fides disputed invoice, without prejudice to any rights or remedies otherwise available, the Supplier reserves,

    (a) the right to charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Standard Bank of South Africa or the maximum interest rate permitted by law, whichever is the greater and

    (b) the right to require and the Customer shall cease all use of the Software, and confirm by email to Supplier on [email protected] or [email protected] that the use of the said Software has been terminated.

    4.2.14 Cancellation Fees:

    4.2.14.1 Cancellation after the confirmation of the agreement or confirmation of commencement dates and prior to commencement of the project; 20% of quoted or online indicated fees.

    4.2.14.2 Cancellation on the agreed commencement date or less than 14 days prior to the commencement date; 50% of quoted or online indicated fees.

    4.2.14.3 Cancellation after the agreed commencement date:  100% of quoted or online indicated fees.

    4.3 In the case of non-payment the Supplier will be entitled to cease all activities in connection with the execution of the agreement, to cancel this agreement and to claim compensation and/or payment as outlined above.  All access to the software will be terminated in three days after notice has been given to the Customer.

5) DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

  • 5.1 Warranties
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  • 5.1.1 Except as specifically provided in this Agreement, the Software is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. The Customer agrees that outputs from the Software will not, under any circumstances, be considered legal or professional advice and are not meant to replace the experience and sound professional judgment of professional advisors in full knowledge of the circumstances and details of any matter on which advice is sought.
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  • 5.1.2 The Supplier warrants to the Customer that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has authority to enter into this Agreement with the Customer.
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  • 5.1.3 Some systems/software may not be capable of supporting the Software and the Customer acknowledges
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  • (a) that it has made appropriate investigations into the necessary systems/software required to support the Customer’s use of the relevant Software and
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  • (b) that performance of that Software may vary with equipment and telecommunications links with which it is used.
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  • 5.1.4 All statements, findings or recommendations published in any Supplier report, or made in the course of training or the provision of advice or otherwise, will be made in good faith by the Supplier, will be true and correct to the best of the supplier’s abilities and will be based on the then available information.  Similarly, the Supplier’s estimates of time required and projected results will be made in good faith and in anticipation of the effective cooperation of the Customer’s staff.
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  • 5.1.5 The Supplier will not be responsible for the implementation of recommendation, unless stated otherwise in the project proposal or subsequently agreed in writing.
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  • 5.2 Exclusion of liability
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  • 5.2.1 Neither the Supplier, its Affiliates nor any licensors of the foregoing make any warranty that access to any Software will be uninterrupted, secure, complete or error free.
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  • 5.2.2 Other than in respect of the warranty given in Clause 5.1.2 and 6.1 the Supplier shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Software.
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  • 5.2.3 The Supplier shall not be liable in contract, tort, delict or otherwise for any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Software.
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  • 5.2.4 Without prejudice to the generality of clauses 5.2.1 to 5.2.3, in no event shall the Supplier, its Affiliates and/or the licensors of the foregoing be liable to Customer for any claim(s) relating in any way to:
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  • (a) The Customer’s inability or failure to perform legal or other research related work or to perform such legal or other research or related work properly or completely, even if assisted by the Supplier, its Affiliates and/or licensors of the foregoing or any decision made or action taken by the Customer in reliance on the Software; or
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  • (b) any lost profits (whether direct or indirect) or any consequential, exemplary, incidental, indirect or special damages relating in whole or in part to the Customers’ rights under this Agreement or use of or inability to use the Software even if the Suppliers, its Affiliates and/or licensors of the foregoing have been advised of the possibility of such damages.
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  • (c) The Customer’s inability or failure to perform legal requirement relating to Popia or any protection of personal information legislation.
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  • 5.2.5 Other than in respect of the warranty given in Clause 5.1.2 and 6.1 the Supplier will have no liability whatsoever for any liability of the Customer to any third party which might arise.
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  • 5.2.6 The Customer shall accept sole responsibility for and the Supplier shall not be liable for the use of the Software by the Customer, or any User and the Customer shall hold the Supplier harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
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  • 5.2.7 Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement.
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  • 5.3 Limitation of Liability

    5.3.1 Other than in respect of the warranty given in Clause 5.1.2 and 6.1, the Customer’s exclusive remedy and the Supplier’s, (its Affiliates’ and/or licensors) of the foregoing entire liability under this Agreement if any, for any claim(s) for damages relating to the Software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the Charges paid by Customer relative to the specific aspect of the Software which is the basis of the claim(s) during the 6 (six) months period preceding the event giving rise to such claim.

    5.3.2 Except for claims relating to non-payment of the Charges or improper use of the Software, no claim regardless of form which in any way arises out of this Agreement may be made, nor action based upon such claim brought, by either party to this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.

    5.4 Failures Not Caused by the Supplier

    The Supplier will not be responsible to the extent that the Software fails to perform due to one or more of the following:

  • (1) the malfunction of software not provided by the Supplier

  • (2) the malfunction of hardware,

  • (3) The Customer’s negligence or fault,

  • (4) The Customer’s failure to follow the instructions set forth in the training or documentation,

  • (5) material changes in the operating environment not authorised by the Supplier,

  • (6) modifications to or changes in the Software or integrated software not made or suggested by the Supplier or

  • (7) The Customer’s failure to implement and maintain a proper and adequate virus, malware, backup and recovery system for the Software and associated files. If the Supplier discovers that a failure is caused by one of the above, the Supplier reserves the right to charge the Customer for its work in investigating such failure. At the Customer’s request and at a fee to be agreed upon, the Supplier will thereafter assist the Customer in resolving such failure. It is the Customer’s responsibility to develop and implement a proper and adequate virus, malware, backup and recovery system.

    5.5 Exclusive Remedies

    The remedies in clauses 5 (Disclaimer of Warranties and Limitation of Liability), 6 (Infringement Claims), 7 (Term and Termination), 9.4 (Remedies) and 10.3 (Remedies) are the Customer’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of the Supplier for damages (except for death and personal injury) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Software or the integration of the Software with other software or hardware.

6) INFRINGEMENT CLAIMS

  • 6.1 The Supplier warrants to the Customer that no Software to which the Customer has subscribed, nor its features infringe any industrial or intellectual property rights of any third party.
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  • 6.2 Customer shall promptly inform the Supplier if the Customer becomes aware of:
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  • (a) any unauthorised use of the Software;
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  • (b) any actual, threatened, or suspected infringement of any intellectual property of the Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to the Customer’s notice; and
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  • (c) any claim by any third party coming to its notice that the Software infringes the intellectual property or other rights of any other person.
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  • 6.3 The Customer shall at the request and expense of the Supplier do all such things as may be reasonably required to assist the Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software.
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  • 6.4 In the event a claim of infringement is made against the Supplier or the Customer with respect to the Software, The Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software:
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  • (a) substitute fully equivalent non-infringing software; or
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  • (b) modify the Software so that it no longer infringes but remains functionally equivalent.If, as a result of such claim, the Customer or the Supplier is permanently enjoined from using the Software by a final, non-appealable decree from a court of competent jurisdiction, the Supplier will take one or both of the actions set forth in (a) and (b) above.
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  • 6.5 The Supplier’s obligations to the Customer pursuant to this clause 6 is contingent upon the Supplier being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. The Customer shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. The Customer shall not settle any such claim or action without the Supplier’s prior written consent.
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  • 6.6 This clause 6 contains the Supplier’s entire obligation and the exclusive remedies of the Customer with regard to any claimed infringement arising out of or based upon the Software used by the Customer.

7) TERM AND TERMINATION

  • 7.1 This Agreement will, commence on the Start Date and shall continue for the Initial Subscription Period and shall then automatically be renew for successive Renewal Periods until the end of the final Renewal Period unless earlier termination takes place in accordance with the provisions set out in clause
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  • 7.2.  If the Customer wishes not to renew at the end of the initial or renewal periods, notice must be given 30 days prior to the end of the initial or renewal date of the intention not to renew.
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  • 7.2 This Agreement may be terminated by:
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  • 7.2.1 The Customer on written notice to the Supplier after receiving notice of an amendment (as permitted under this Agreement) which is materially detrimental to the Customer (“Detrimental Amendment”), which for the avoidance of doubt includes an increase in Charges and/or substantial loss of content or functionality in the Software to the Customer’s detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect; or
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  • 7.2.2 either party on written notice to the other if:
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  • (a) the other commits a material breach of this Agreement, provided that where the breach is capable of being remedied then the defaulting party shall have failed to remedy the same within 30 days of receiving notice specifying the breach and requiring its remedy; or
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  • (b) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors or if a trustee or a receiver or administrator or administrative receiver or receiver and manager is appointed against the whole or any part of its assets or business; or
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  • 7.2.3 either party on receipt of written notice by the other of not less than 30 days prior to, but not taking effect until, the expiry of the Initial Subscription Period or current Renewal Period; the remaining charges for the remainder of the subscription or renewal period will be payable with immediate effect; or
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  • 7.2.4 The Supplier, with immediate effect, if any organisation, which the Supplier acting reasonably determines to be a Competitor of the Supplier acquires Control of Customer.
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  • 7.3 If at any time the Supplier for any reason decides to cease general provision of the Software, the Supplier may, on providing not less than ninety (90) days’ written notice to the Customer, cease to provide any further Maintenance Services (see clause 9).
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  • 7.4 Upon termination for whatsoever reason, if the Customer has pre-paid any Charges in respect of Software being terminated or cancelled the Supplier’s sole liability to the Customer in respect of such termination shall be to refund the pre-paid Charges in respect of that Software for the period following termination to the end of the Term. No such refund shall be required in event of termination for the Customer’s breach of this Agreement.
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  • 7.5 Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties.

8) GENERAL PROVISIONS

  • 8.1 Effect of AgreementThis Agreement (including any applicable ordering document) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Furthermore, this Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Software. Such Special Conditions as are agreed between the Supplier and the Customer shall apply, subject to clauses 8.1.1 and 8.1.2 for the Term.
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  • 8.1.1 Except as otherwise provided in this Agreement, the Supplier may amend the terms and conditions of this Agreement (“Amended Terms”) by giving Customer at least 15 days prior written or online notice. Unless the Customer is notified to the contrary by the Supplier, such Amended Terms shall only apply after the expiry of any Initial Subscription Period, or after the expiry of the current Renewal Period as the case may be. Unless the changes is necessary to accommodate new laws.
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  • 8.1.2 Where agreed Special Conditions are affected by Amended Terms, the parties shall enter into good faith negotiations and agree amendments to the Special Conditions to reflect the parties intentions. Where agreement cannot be reached, such Amended Terms may amount to a Detrimental Amendment and clause 7.2.1 may apply.
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  • 8.1.3 Any other amendment must be in writing and signed by both parties.
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  • 8.2 Force Majeure The Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like.
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  • 8.3 Notices Except as otherwise provided, all notices and correspondence must be given in writing to Supplier at: Quadrivium Solutions, to  [email protected] or [email protected] or such other addresses as may from time to time be notified to the Customer in writing; and to the Customer at the electronic mail address set out in the applicable ordering document unless otherwise notified to the Supplier in writing.
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  • 8.4 Governing Law and AssignmentThis Agreement and all matters arising out of it shall, unless otherwise specified on the applicable ordering document or by the Supplier in writing, in all respects be governed by the laws of South Africa and shall be subject to the non-exclusive jurisdiction of the South African courts. However, nothing in this clause shall exclude or limit applicable mandatory local law relating to the Customer. The Supplier may, upon written notice to the Customer, assign or transfer this Agreement or any rights and obligations hereunder either to an Affiliate or to a third party successor to all or substantially all of the business, stock or assets of the Supplier’s legal information business, in each case, without the prior consent of the Customer. The Supplier may without the prior written consent of Customer and without notice assign any benefit or transfer, delegate or sub-contract any of their duties and obligations under this Agreement to any third party, provided that in the case of sub-contracting, the Supplier shall remain responsible for the performance by its sub-contractors of such obligations under the Agreement. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by the Customer without the Supplier’s prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
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  • 8.5 Export Laws

    The Customer agrees to comply with all relevant export laws and regulations of South Africa and other countries (collectively, “Export Laws”) to ensure that no Software or any portion of it is exported, directly or indirectly, in violation of Export Laws, and that no access to the specified services is given by the Customer to any embargoed country or their nationals, or any other embargoed/denied persons listed from time to time by the South Africa or other counties. The Supplier will not be liable for default or delay caused by the Supplier’s efforts to comply with Export Laws. If Export Laws change after signature of this Agreement and such changes materially inhibit or prohibit the Supplier from performing its obligations under this Agreement, the Supplier will not be liable for their non-performance and either or both the Supplier and the Customer will have the right to terminate this Agreement with respect to the applicable Software.

    8.6. Survival

    Clauses 3 (Confidential Information), 5 (Disclaimer of Warranties and Limitation of Liability), and 8 (General Provisions) shall survive any termination or expiry of this Agreement.

9) MAINTENANCE TERMS

  • 9.1 Maintenance & Support Services Maintenance & Support Services consist of the following:
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  • 9.1.1 Updates. The Supplier may provide Updates to and/or new Versions for the Software to the Customer which shall be included in the Charges. The Customer will be responsible for installing any such Updates and/or new Versions. However, The Supplier will provide technical support for only the most current Version and the immediately preceding Version of the Software.
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  • 9.1.2 Telephone Support. The Supplier will provide telephone support for purposes of handling the Customer questions relating to the operation of the Software. Telephone support is provided by the Supplier’s Customer Training and Support Team see www.qss.co.za or www.accrete-x.com for contact details. Technical support and additional training will be provided at a charge.
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  • 9.2 The Supplier’s Obligations
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  • 9.2.1 The Supplier’s obligations hereunder will extend only to (a) the Updates and Versions of the Software provided to the Customer by the Supplier; and (b) Software that has not been modified or altered in any way by anyone other than the Supplier.
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  • 9.2.2 Maintenance Services will not include services for the items for which the Supplier is not responsible set forth in clause 5.4 of this Agreement.

    9.3 Customer Obligations.

    9.3.1 Cooperation. The Customer shall ensure that the Supplier’s personnel are provided with such information under the Customer’s control as is reasonably necessary to enable the Supplier to comply with its obligations hereunder.

    9.3.2 Updates and New Versions. In the event that the Supplier determines that any of the Customer’s reported maintenance problems cannot be resolved due to the Customer’s failure to install Updates or procure new Versions of the Software or related software, the Customer will be given a reasonable opportunity to install such Updates or procure a new Version. If, after such opportunity, the Customer fails or otherwise refuses to install such Updates or procure such new Version, the Supplier shall be relieved of its obligations under this clause 9.

    9.3.3 A certain amount of the Customer’s management time, clerical assistance and information may be required during the project.  The Customer undertakes to make available such management time, clerical assistance and information as may be reasonably requested by the Supplier and as indicated in the project proposal for the execution of the project.

    9.4 Remedies

    The Customer’s sole remedy for the Supplier’s material breach of its obligations under this clause 9 will be to have the Supplier re-perform the defective services so that they conform to the specifications provided herein.

10) INSTALLATION AND TRAINING SERVICES

  • 10.1 Installation of the SoftwareInstallation of all hardware and supporting software so that minimum configuration requirements for installation of the Software are met is the responsibility of the Customer and installation of the Software shall also be the responsibility of the Customer.
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  • 10.2 TrainingTraining is offered via a range of methods including video calls, face to face and telephone sessions. The Customer should contact the Supplier to arrange mutually agreeable methods, dates and times. Cost of this will be for the customer’s account and will be quoted on if so requested.
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  • 10.3 Remedies The Customer’s sole remedy for the Supplier’s material breach of its obligations under this clause 10 will be to have the Supplier re-perform the defective services so that they conform to the specifications provided herein.

11) PROTECTION OF PERSONAL INFORMATION

  • Consent For Quadrivium Solutions Cc “Supplier” To Process Personal Information In Terms Of The Protection Of Personal Information
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  • 11.1  The Supplier respect the privacy of the Customer and all users of the Software and are committed to protect and responsibly manage the personal information of all users. The Supplier collect and process the users personal information to enable the Supplier to provide the services or product solutions the Customer may require. To comply with the Protection of Personal Information (POPI) Act.  The Customer and users of the Software hereby authorise the use of their personal information and consent to the process their personal information.
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  • 11.2 The POPI Act defines the processing of personal information as follows:“Processing” is defined by the POPI Act as: ‘‘processing’’ means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including—
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  • (a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use;
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  • (b) dissemination by means of transmission, distribution or making available in any other form; or
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  • (c) merging, linking, as well as restriction, degradation, erasure or destruction of information.
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  • The Supplier will collect the minimum required information from users of the software and will process personal information only for the purposes for which it was collected, which includes providing a service to the user, for example:
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  • (a) To provide advice or services to the Customer and/or to carry out the transactions the Customer requested and to maintain the  relationship between the Supplier and the Customer of users of the system;

    (b) To assist the Customer and users with queries relating to services or products;

    (c) To confirm and verify the Customers of user’s  identity or to verify that the individual is an authorized user for security purposes, where applicable;

    (d) For transactional, invoicing, auditing and record keeping purposes.

    (e) Providing the Customer with records of transactions and statements of accounts.

    11.3 The Supplier will also process the Customer or user’s personal information to comply with legal and regulatory requirements or industry codes to which the Supplier subscribe, or which apply to the Supplier, or when it is otherwise allowed by law.

    11.4 An ‘operator’ is defined by the POPI Act as: a person who processes personal information for a responsible party in terms of a contract or mandate, without coming under the direct authority of that party.

    11.5 The Supplier is the responsible party relating to the Customer or User’s personal information when we collect such information for the purpose of providing a service and for accounting and auditing purposes. The Supplier may need to share the personal information with service providers (operators) who are or will be involved in the delivery of products or services and/or in support of our service offerings to the Customer or the User.

    11.6 The Customer or User of the software (the data subject) are entitled, in terms of the POPI Act, to request access to the personal information held by the Supplier as a responsible party, as well as to the amendment and deletion of such information. The Customer or User will be notified if there are grounds for refusing such a request.

    11.7 By accepting the Terms and Conditions electronically in the system the user and the customer declare that they have read this consent and acknowledge that the Supplier is committed to protecting and promoting the privacy of their Personal Information in order to fulfil its obligations under POPIA.

    11.8 The Supplier, the user and the customer acknowledge that they are jointly responsible for the accuracy of the information provided to the Supplier.

    11.9 The Customer and user acknowledge they are responsible for notifying the Supplier of any changes to their personal information.

    11.10 The Customer and user defend, indemnify and hold harmless the Supplier from any action or claim of any nature whatsoever that might be brought by any person whatsoever against the Supplier as a result of any personal loss, injury or damage arising directly or indirectly from any act or omission on the part of the Customer and user of the software.

    11.11 The Customer and the User give the Supplier and/or its representatives and relevant product suppliers consent to process their personal information for the purposes mentioned in this agreement or otherwise allowed for or required by law.

    11.12 The Customer and the User consent that the Supplier may contact them from time to time to offer additional professional services, products or solutions.

GENERAL PROVISIONS BASIS OF AGREEMENT 1.1 Where Software (as specified in the applicable ordering document) is supplied to a Customer the terms of this Agreement shall govern access to and use of the said Software. 1.2 The following definitions apply to this Agreement: “Additional User” means a User above the number of Users specified in the applicable ordering document. “Affiliates” means entities controlling, controlled by or under common control with Supplier. “Agreement” means (subject to clause 10.1.1) the terms and conditions set out in this document (“Terms and Conditions”); the applicable ordering document (together with any renewal thereof); and Special Conditions (if any) agreed between Supplier and Customer. In case of conflict between the documents comprising this Agreement, the documents comprising the Agreement shall prevail in the following order of precedence: 1. Order Form; 2. Special Conditions; 3. these Terms and Conditions. “Charges” mean the fees payable by Customer for the licensing of the Software as specified in the applicable ordering document. “Customer” means entity specified as the customer on the applicable ordering document. “Competitor” shall mean a third party that is regularly engaged in the business of developing or marketing software that performs the same or similar functions as one or more of the modules of the Software licensed hereunder by Customer. “Control”: an entity will be deemed to Control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise. “Documentation” means the User Guide(s) published from time to time for the relevant software. “Initial Subscription Period” means the period from the Start Date to the Initial Expiry as specified in the applicable ordering document; where the Start Date for the Software has for any reason to be adjusted, Supplier may at its discretion adjust the Initial Subscription Period to run from the revised Start Date. “Renewal Period” means each successive 12 month period (or such other period as the parties may agree) following the expiry of the Initial Subscription Period. “Special Conditions” means individually negotiated variations, amendments and/or additions to these Terms and Conditions or those of an ordering document and are deemed to be included in this Agreement. “Software” means any software or system as specified in the applicable ordering document.  Whether owned by the supplier or redistributed. “Start Date” in respect of each Software licensed means the later of (a) the date specified as the date on which access to the Software is intended to start and (b) the actual date on which access to that Software is given. “Supplier” means Quadrivium Solutions, (Company No. 2002/021985/23). Registered in South Africa. “Term” in respect of each Software licensed comprises the Initial Subscription Period and any Renewal Period in relation to that Software. “Trial Period” means a period during which Customer may trial the Software without charge (unless otherwise agreed), the length of which will be notified to Customer. “Updates” mean any periodic Software releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Software; or 2) resolving technological issues related to Customer’s then-current Version of the Software. “User” means personnel of Customer authorized by Supplier and Customer to use the Software as more particularly specified in the applicable ordering document. “Version” means a new release of the Software (outside a point release) that includes a major revision, alteration, improvement, modification, or the like, to the current Software release.
  1. SOFTWARE LICENCE
2.1 Grant Supplier grants Customer a non-exclusive, non-transferable, limited licence to use for the number of Users, the Software, in object code only, in Customer’s normal course of business (including the version initially licensed together with any Updates included in the subscription, but excluding any new software feature or substantial additional functionality for which Supplier, in its sole discretion, generally charges customers of the Software additional charges) (“Software”). A “Site” means all personal computers, servers or minicomputers (including networked systems) with the same operating system platform at a single location or at different locations which are connected by a single networked system (i.e., any combination of two or more terminals that are electronically linked and capable of sharing the use of a single software product). In addition, Users who work at or are assigned to the licensed Site may use the Software on personal computers or laptops located off-site. The Software is protected by copyright. 2.2 Copying Customer may not make copies of the Software. All copying is prohibited. 2.3 Other Restrictions Customer may not publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer Software or copies to third parties, nor reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software. Customer may not use Software, nor allow Software to be used, to provide data management or processing services for third parties. Customer may not reproduce all or any portion of the Software (except as expressly permitted herein) or any accompanying Documentation, or modify, translate or otherwise create derivative works of the Software. Customer agrees to notify its employees and agents who may have access to Software of the restrictions contained herein and to ensure their compliance with these restrictions. 2.4 Other Licences The Software may be used to access and use various Supplier products and services, (“Supplier Services”). All access to and use of such Supplier Services by means of the Software, including any charges for such access and use, will be governed by the terms applicable to the relevant Supplier Services. 2.5 Title Customer hereby acknowledges and agrees that all right, title and interest in and to the Software, the Documentation and any other related materials are, and shall remain, vested solely in Supplier, its Affiliates and other software owners, if any, and Customer shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, Customer agrees that it shall make no use of the Software, the Documentation or any other related materials without Supplier’s prior written consent. Any and all goodwill associated with such rights shall insure directly and exclusively to the benefit of Supplier. 2.6 Trial Terms Save for the provisions in respect of Charges, the terms of this Agreement shall apply to Customer during any Trial Period. This Agreement will terminate at the end of the Trial Period and Customer’s licence and right to use the Software will cease at the end of the Trial Period unless a further Trial Period is agreed or where Customer subscribes to the Software from the expiry date of any such Trial Period.
  1. CONFIDENTIAL INFORMATION
5.1 Supplier acknowledges that any documents, the contents thereof, or other proprietary or confidential materials expressly designated as confidential that are provided to Supplier by Customer during the Term of this Agreement (“Customer Confidential Information”) are valuable assets of Customer. Supplier will take reasonable steps to ensure that the Customer Confidential Information is not used or disclosed except as expressly permitted by this Agreement. Supplier will not permit any unaffiliated third party access to, in any manner, the Customer Confidential Information, except as provided in this Agreement. Customer Confidential Information shall not include information that consists of ideas, concepts, know-how or techniques relating to the enhancement, customisation, installation or implementation of the Software. 5.2 Customer acknowledges and agrees that the Software constitutes a valuable proprietary product of Supplier and that the Software, together with the terms of this Agreement, and any documentation provided, shall be referred to as the “Supplier Confidential Information.” Customer will take reasonable steps to ensure that the Supplier Confidential Information is not used or disclosed except as expressly permitted by this Agreement. Customer will not permit any third party access to, in any manner, the Supplier Confidential Information, except as provided in this Agreement. Customer may permit its independent contractors access to the Supplier Confidential Information to the extent necessary for such contractor’s provision of services to Customer if such contractor executes a confidentiality agreement with Customer or Supplier which prohibits the contractor from using or disclosing the Supplier Confidential Information; provided, however, that such independent contractors may not include any Competitor.
  1. CHARGES
6.1 The Charges payable by Customer for use of the Software will be as specified in the applicable ordering document and will cover the Software licence, maintenance, and support services as provided in clauses 11 and 12 of this Agreement. Maintenance and support will be charged additionally as requested by the customer. Charges and modifications 6.2.1 Customer shall pay the Charges for the Software for the Initial Subscription Period and any Renewal Period (and Trial Period where so agreed) or as otherwise provided for by this clause 6. 6.2.2 Where Customer requests access to any Software for an Additional User, each Additional User will be charged for at the Additional User fee rate, pro-rated, for the remainder of the Initial Subscription Period or the then-current Renewal Period (as applicable), unless otherwise specified on the ordering document. 6.2.3 Each Additional User fee will be billed to Customer at the end of the month in which the said User was given access by Supplier. 6.2.4 The parties agree to enter into good faith negotiations regarding this Agreement (including the financial provisions) if either party deems there is a material change in Customer’s organisational structure, including, but not limited to mergers, acquisitions, a significant increase in the number of relevant personnel at a site, divestitures or downsizing. Notification of Proposed Charges for Renewal Period 6.2.5 Where Supplier wishes to make no increase in the Charges and/or Additional User fees (“Proposed Charges”) for a Renewal Period then unless notice of termination is served by Customer in accordance with clause 9.2.3, then the Term shall be deemed to be extended for the Renewal Period. 6.2.6 Where Supplier wishes to modify the Charges for the Renewal Period (“Proposed Charges”) in respect of any Software, Supplier will endeavor to issue Customer with a renewal notification specifying the Proposed Charges for each relevant Software (“Renewal Notification”) not less than 1 calendar month before the end of the Initial Subscription Period (or Renewal Period, if applicable). 6.2.7 Customer is deemed to agree to extend the Agreement for the Renewal Period and to pay the Proposed Charges for each relevant Software for the Renewal Period, either: (a) on the expiry of the “Objection Deadline” (being 1 calendar month after the date of the Renewal Notification, unless Supplier has prior to that date received notice in writing that Customer does not accept the Proposed Charges); or (b) after bona fide discussions as provided for by clause 6.2.9, have resulted in agreement on the Proposed Charges; whichever is the later, and thereafter these Proposed Charges shall not amount to a Detrimental Amendment for the purposes of clause 9.2.1 hereof. 6.2.8 Where, on expiry of the Initial Subscription Period or Renewal Period (as applicable), the Objection Deadline has not elapsed, Supplier shall have the option to continue supplying each relevant Software on the terms of this Agreement until the Objection Deadline elapses and shall be entitled to invoice Customer for Charges incurred at the existing rates. On expiry of the Objection Deadline, unless clause 6.2.9 applies, Supplier shall be entitled to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and the expiry of the Objection Deadline. 6.2.9 Where, on expiry of the Objection Deadline, the Proposed Charges are under active bona fide discussion between the parties, Supplier shall: (a) whilst, in Supplier’s reasonable opinion, such discussions are proceeding without undue delay, continue supplying each relevant Software on the terms of this Agreement during that period and to bill Customer for Charges incurred at the existing rates; (b) be entitled, once agreement has been reached on Proposed Charges, to invoice for the additional amounts due in respect of the period between the start of the Renewal Period and such agreement being reached; and (c) in the event that such agreement is not reached within a reasonable period, at Supplier’s sole discretion have the right to require and Customer shall cease all use of the Software, uninstall the Software and confirm by email to Supplier on [email protected] or [email protected] that the said Software has been uninstalled. Billing and Payment 6.2.10 All Charges are exclusive of applicable sales, use, value added, personal property and other taxes, which are additionally payable by Customer. 6.2.11 All Telecoms charges incurred in using any Software are the responsibility of Customer. 6.2.12 Customer will pay any undisputed invoice rendered by Supplier in full within 7 days of invoice date. 6.2.13 If full payment is not made by the due date, except to the extent that any part non-payment relates to a bona fides disputed invoice, without prejudice to any rights or remedies otherwise available, Supplier reserves (a) the right to charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Standard Bank or the maximum interest rate permitted by law, whichever is the greater and (b) the right to require and Customer shall cease all use of the Software, uninstall the Software and confirm by email to Supplier on [email protected] or [email protected] that the said Software has been uninstalled. 6.2.14 Cancellation Fees: 6.2.14.1 Cancellation after the confirmation of the agreement or confirmation of commencement dates and prior to commencement of the project; 20% 6.2.14.2 Cancellation on the agreed commencement date or less than 14 days prior to the commencement date; 50% 6.2.14.3 Cancellation after the agreed commencement date:  100% 6.3 In the case of non-payment QS will be entitled to cease all activities in connection with the execution of the agreement, to cancel this agreement and to claim compensation and/or payment as outlined above.  All access to the software will be terminated in three days after notice has been given to the Customer.
  1. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
7.1 Warranties 7.1.1 Except as specifically provided in this Agreement, the Software is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Customer agrees that outputs from the Software will not, under any circumstances, be considered legal or professional advice and are not meant to replace the experience and sound professional judgment of professional advisors in full knowledge of the circumstances and details of any matter on which advice is sought. 7.1.2 Supplier warrants to Customer that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has authority to enter into this Agreement with Customer. 7.1.3 Some systems/software may not be capable of supporting the Software and Customer acknowledges (a) that it has made appropriate investigations into the necessary systems/software required to support Customer’s use of the relevant Software and (b) that performance of that Software may vary with equipment and telecommunications links with which it is used. 7.1.4 All statements, findings or recommendations published in any Supplier report, or made in the course of training or the provision of advice or otherwise, will be made in good faith by the Supplier, will be true and correct to the best of the supplier’s abilities and will be based on the then available information.  Similarly, the Supplier’s estimates of time required and projected results will be made in good faith and in anticipation of the effective cooperation of the Customer’s staff. 7.1.5 The Supplier will not be responsible for the implementation of recommendation, unless stated otherwise in the project proposal or subsequently agreed in writing. 7.2 Exclusion of liability 7.2.1 Neither Supplier, its Affiliates nor any licensors of the foregoing make any warranty that access to any Software will be uninterrupted, secure, complete or error free. 7.2.2 Other than in respect of the warranty given in Clause 7.1.2 and 8.1 Supplier shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Software. 7.2.3 Supplier shall not be liable in contract, tort, delict or otherwise for any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Software. 7.2.4 Without prejudice to the generality of clauses 7.2.1 to 7.2.3, in no event shall Supplier, its Affiliates and/or the licensors of the foregoing be liable to Customer for any claim(s) relating in any way to: (a) Customer’s inability or failure to perform legal or other research related work or to perform such legal or other research or related work properly or completely, even if assisted by Supplier, its Affiliates and/or licensors of the foregoing or any decision made or action taken by Customer in reliance on the Software; or (b) any lost profits (whether direct or indirect) or any consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Customers’ rights under this Agreement or use of or inability to use the Software even if Suppliers, its Affiliates and/or licensors of the foregoing have been advised of the possibility of such damages. 7.2.5 Other than in respect of the warranty given in Clause 7.1.2 and 8.1 Supplier will have no liability whatsoever for any liability of Customer to any third party which might arise. 7.2.6 Customer shall accept sole responsibility for and Supplier shall not be liable for the use of the Software by Customer, or any User and Customer shall hold Supplier harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use. 7.2.7 Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement. 7.3 Limitation of Liability 7.3.1 Other than in respect of the warranty given in Clause 7.1.2 and 8.1, Customer’s exclusive remedy and Supplier’s, (its Affiliates’ and/or licensors) of the foregoing entire liability under this Agreement if any, for any claim(s) for damages relating to the Software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the Charges paid by Customer relative to the specific aspect of the Software which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim. 7.3.2 Except for claims relating to non-payment of the Charges or improper use of the Software, no claim regardless of form which in any way arises out of this Agreement may be made, nor action based upon such claim brought, by either party to this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it. 7.4 Failures Not Caused by Supplier Supplier will not be responsible to the extent that the Software fails to perform due to one or more of the following: (1) the malfunction of software not provided by Supplier (2) the malfunction of hardware, (3) Customer’s negligence or fault, (4) Customer’s failure to follow the instructions set forth in the Documentation, (5) material changes in the operating environment not authorised by Supplier, (6) modifications to or changes in the Software not made or suggested by Supplier or (7) Customer’s failure to implement and maintain a proper and adequate virus, malware, backup and recovery system for the Software and associated files. If Supplier discovers that a failure is caused by one of the above, Supplier reserves the right to charge Customer for its work in investigating such failure. At Customer’s request and at a fee to be agreed upon, Supplier will thereafter assist Customer in resolving such failure. It is Customer’s responsibility to develop and implement a proper and adequate virus, malware, backup and recovery system. 7.5 Exclusive Remedies The remedies in clauses 7 (Disclaimer of Warranties and Limitation of Liability), 8 (Infringement Claims), 9 (Term and Termination), 11.4 (Remedies) and 12.3 (Remedies) are Customer’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of Supplier for damages (except for death and personal injury) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Software or the integration of the Software with other software or hardware.
  1. INFRINGEMENT CLAIMS
8.1 Supplier warrants to Customer that no Software to which Customer has subscribed, nor its features infringe any industrial or intellectual property rights of any third party. 8.2 Customer shall promptly inform Supplier if Customer becomes aware of: (a) any unauthorised use of the Software; (b) any actual, threatened, or suspected infringement of any intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software which comes to Customer’s notice; and (c) any claim by any third party coming to its notice that the Software infringes the intellectual property or other rights of any other person. 8.3 Customer shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Software. 8.4 In the event a claim of infringement is made against Supplier or Customer with respect to the Software, Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Software: (i) substitute fully equivalent non-infringing software; or (ii) modify the Software so that it no longer infringes but remains functionally equivalent. If, as a result of such claim, Customer or Supplier is permanently enjoined from using the Software by a final, non-appealable decree from a court of competent jurisdiction, Supplier will take one or both of the actions set forth in (i) and (ii) above or will obtain for Customer at Supplier’s expense the right to continue to use the Software. 8.5 Supplier’s obligations to Customer pursuant to this clause 8 is contingent upon Supplier being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Customer shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. Customer shall not settle any such claim or action without Supplier’s prior written consent. 8.6 This clause 8 contains Supplier’s entire obligation and the exclusive remedies of Customer with regard to any claimed infringement arising out of or based upon the Software used by Customer.
  1. TERM AND TERMINATION
9.1 This Agreement will, once approved by Supplier, commence on the Start Date and shall continue for the Initial Subscription Period and shall then automatically be renew for successive Renewal Periods until the end of the final Renewal Period unless earlier termination takes place in accordance with the provisions set out in clause 9.2.  If the Customer wishes not to renew at the end of the initial or renewal periods, notice must be given 30 days prior to the end of the initial or renewal date of the intention not to renew. 9.2 This Agreement may be terminated by: 9.2.1 Customer on written notice to Supplier after receiving notice of an amendment (as permitted under this Agreement) which is materially detrimental to Customer (“Detrimental Amendment”), which for the avoidance of doubt includes an increase in Charges and/or substantial loss of content or functionality in the Software to Customer’s detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect; or 9.2.2 either party on written notice to the other if: (a) the other commits a material breach of this Agreement, provided that where the breach is capable of being remedied then the defaulting party shall have failed to remedy the same within 30 days of receiving notice specifying the breach and requiring its remedy; or (b) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors or if a trustee or a receiver or administrator or administrative receiver or receiver and manager is appointed against the whole or any part of its assets or business; or 9.2.3 either party on receipt of written notice by the other of not less than 30 days prior to, but not taking effect until, the expiry of the Initial Subscription Period or current Renewal Period; the remaining charges for the remainder of the subscription or renewal period will be payable with immediate effect; or 9.2.4 Supplier, with immediate effect, if any organisation, which Supplier acting reasonably determines to be a Competitor of Supplier acquires Control of Customer. 9.3 If at any time Supplier for any reason decides to cease general provision of the Software, Supplier may, on providing not less than ninety (90) days’ written notice to Customer, cease to provide any further Maintenance Services (see clause 11). 9.4 Upon termination for whatsoever reason, if Customer has pre-paid any Charges in respect of Software being terminated or cancelled Supplier’s sole liability to Customer in respect of such termination shall be to refund the pre-paid Charges in respect of that Software for the period following termination to the end of the Term. No such refund shall be required in event of termination for Customer’s breach of this Agreement. 9.5 Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties.
  1. GENERAL PROVISIONS
10.1 Effect of Agreement This Agreement (including any applicable ordering document) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Furthermore, this Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Software. Such Special Conditions as are agreed between Supplier and Customer shall apply, subject to clauses 10.1.1 and 10.1.2 for the Term. 10.1.1 Except as otherwise provided in this Agreement, Supplier may amend the terms and conditions of this Agreement (“Amended Terms”) by giving Customer at least 15 days prior written or online notice. Unless Customer is notified to the contrary by Supplier, such Amended Terms shall only apply after the expiry of any Initial Subscription Period, or after the expiry of the current Renewal Period as the case may be. 10.1.2 Where agreed Special Conditions are affected by Amended Terms, the parties shall enter into good faith negotiations and agree amendments to the Special Conditions to reflect the parties intentions. Where agreement cannot be reached, such Amended Terms may amount to a Detrimental Amendment and clause 9.2.1 may apply. 10.1.3 Any other amendment must be in writing and signed by both parties. 10.2 Force Majeure Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like. 10.3 Notices Except as otherwise provided, all notices and correspondence must be given in writing to Supplier at: Quadrivium Solutions, to  [email protected] or [email protected] or such other addresses as may from time to time be notified to Customer in writing; and to Customer at the address set out in the applicable ordering document unless otherwise notified to Supplier in writing. 10.4 Governing Law and Assignment This Agreement and all matters arising out of it shall, unless otherwise specified on the applicable ordering document or by Supplier in writing, in all respects be governed by the laws of South Africa and shall be subject to the non-exclusive jurisdiction of the South African courts. However nothing in this clause shall exclude or limit applicable mandatory local law relating to Customer. Supplier may, upon written notice to Customer, assign or transfer this Agreement or any rights and obligations hereunder either to an Affiliate or to a third party successor to all or substantially all of the business, stock or assets of Supplier’s legal information business, in each case, without the prior consent of Customer. Supplier may without the prior written consent of Customer and without notice assign any benefit or transfer, delegate or sub-contract any of their duties and obligations under this Agreement to any third party, provided that in the case of sub-contracting, Supplier shall remain responsible for the performance by its sub-contractors of such obligations under the Agreement. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by Customer without Supplier’s prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement. 10.5 Export Laws Customer agrees to comply with all relevant export laws and regulations of South Africa and other countries (collectively, “Export Laws”) to ensure that no Software or any portion of it is exported, directly or indirectly, in violation of Export Laws, and that no access to the specified services is given by Customer to any embargoed country or their nationals, or any other embargoed/denied persons listed from time to time by the South Africa or other counties. Supplier will not be liable for default or delay caused by Supplier’s efforts to comply with Export Laws. If Export Laws change after signature of this Agreement and such changes materially inhibit or prohibit Supplier from performing its obligations under this Agreement, Supplier will not be liable for their non-performance and either or both Supplier and Customer will have the right to terminate this Agreement with respect to the applicable Software. 10.6. Survival Clauses 5 (Confidential Information), 7 (Disclaimer of Warranties and Limitation of Liability), and 10 (General Provisions) shall survive any termination or expiry of this Agreement.
  1. MAINTENANCE TERMS
11.1 Maintenance & Support Services Maintenance & Support Services consist of the following: 11.1.1 Updates. Supplier may provide Updates to and/or new Versions for the Software to Customer which shall be included in the Charges. Customer will be responsible for installing any such Updates and/or new Versions. However, Supplier will provide technical support for only the most current Version and the immediately preceding Version of the Software. 11.1.2 Telephone Support. Supplier will provide telephone support for purposes of handling Customer questions relating to the operation of the Software. Telephone support is provided by Supplier’s Customer Training and Support Team see www.qss.co.za or www.accrete-x.com for contact details. Technical support will be provided at a charge. 11.2 Supplier’s Obligations 11.2.1 Supplier’s obligations hereunder will extend only to (a) the Updates and Versions of the Software provided to Customer by Supplier; and (b) Software that has not been modified or altered in any way by anyone other than Supplier. 11.2.2 Maintenance Services will not include services for the items for which Supplier is not responsible set forth in clause 7.4 of this Agreement. 11.3 Customer Obligations. 11.3.1 Cooperation. Customer shall ensure that Supplier’s personnel are provided with such information under Customer’s control as is reasonably necessary to enable Supplier to comply with its obligations hereunder. 11.3.2 Updates and New Versions. In the event that Supplier determines that any of Customer’s reported maintenance problems cannot be resolved due to Customer’s failure to install Updates or procure new Versions of the Software, Customer will be given a reasonable opportunity to install such Updates or procure a new Version. If, after such opportunity, Customer fails or otherwise refuses to install such Updates or procure such new Version, Supplier shall be relieved of its obligations under this clause 11. 11.3.3 A certain amount of the Customer’s management time, clerical assistance and information may be required during the project.  The Customer undertakes to make available such management time, clerical assistance and information as may be reasonably requested by the Supplier and as indicated in the project proposal for the execution of the project. 11.4 Remedies Customer’s sole remedy for Supplier’s material breach of its obligations under this clause 11 will be to have Supplier re-perform the defective services so that they conform to the specifications provided herein.
  1. INSTALLATION AND TRAINING SERVICES.
12.1 Installation of the Software Installation of all hardware and supporting software so that minimum configuration requirements for installation of the Software are met is the responsibility of Customer and installation of the Software shall also be the responsibility of Customer. 12.2 Training Training is offered via a range of methods including video calls, face to face and telephone sessions. Customer should contact Supplier to arrange mutually agreeable methods, dates and times. Cost of this will be quoted on. 12.3 Remedies Customer’s sole remedy for Supplier’s material breach of its obligations under this clause 12 will be to have Supplier re-perform the defective services so that they conform to the specifications provided herein.