SOFTWARE LICENCE AND USER AGREEMENT
1. PARTIES, AMENDMENT AND ACCEPTANCE
1.3. If you want to object to the relevant amendments/changes, kindly immediately stop using the Software and/or Service. If you continue to use the Software and/or Service, it will be deemed as consent, and that you do not object to the amended/changed terms and conditions, and furthermore that you agree to abide by them.
2. INTERPRETATION, DEFINITIONS
In this Agreement:
2.1. clause headings are for reference purposes only and shall not influence the interpretation;
2.2. reference to:
2.2.1. one gender shall include the other genders;
2.2.2. natural persons include juristic persons and vice versa;
2.2.3. the singular shall include the plural and vice versa;
2.2.4. days, months or years shall be construed as Gregorian calendar days, months or years;
2.3. if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
2.4. where figures are referred to in numerals and in words, if there is any conflict, the words shall prevail;
2.5. all annexures hereto shall be deemed to be incorporated herein and shall form an integral part hereof;
2.6. expressions defined in this Agreement shall bear the same meanings in annexures hereto;
2.7. durations shall be reckoned exclusively of the first and inclusively of the last day.
2.8. The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings:
2.8.2. “CBI” means Circuit Breaker Industries (Pty) Ltd, t/a CBI-Electric: Low Voltage, Registration number 1943/015747/07 of Number 1 Tripswitch Drive, Elandsfontein, Johannesburg, Gauteng.
2.8.3. “Confidential Information” means any information which by its nature or content is identifiable as confidential and/or proprietary to a Party and/or any third party, or which is provided or disclosed in confidence or marked or declared to be confidential at the time of transmission and which is furnished to or obtained by the receiving Party in any recorded form, orally or by observation. It includes any information or data which may come to the knowledge of the receiving Party by whatsoever means, including all information relating to the disclosing Party's current and existing strategic objectives, its business activities, business relationships, technical, scientific, commercial, financial and market information and trade secrets, data concerning its architectural information, demonstrations, processes and machinery, all agreements to which it or its customers is/are a party; information relating to the Software, or technology or products of a Party and information relating to its customers and facilities. Confidential Information shall not include information which the receiving Party can demonstrate:
126.96.36.199. was part of the public domain at the date of disclosure thereof or
188.8.131.52. subsequently becomes lawfully part of the public domain by publication or otherwise; or
184.108.40.206. becomes available from a source other than one of the Parties which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information; or
220.127.116.11. is disclosed pursuant to a requirement or request by operation of law, regulation or court order.
Specific disclosures made under this Agreement shall not, however, be deemed covered by the foregoing exceptions merely because they are encompassed by more general information contained in the public domain or are in the possession of the receiving Party. In addition, any combination of features shall not be deemed to fall within the foregoing exceptions merely because the individual features that comprise said combination belong to the public domain or are in the possession of the receiving Party. Such a combination shall be covered only if the combination itself and its modus operandi belong to the public domain or are in the possession of the receiving Party.
2.8.4. “Documentation” means information relating to the use and operation of the Software provided by CBI to the Licensee, in such format as CBI may determine from time to time.
2.8.5. “Effective Date” means the date upon which the Software is made available by CBI to the Licensee, or the Licensee first makes use of the Service, whichever is the earlier.
2.8.6. “Intellectual Property or IP” means all intellectual property rights, whether registered, or unregistered, or any application, or right of application in any jurisdiction, including but not limited to source code, object code, know-how, copyright, data base rights, trade names, trademarks, designs, patents and goodwill.
2.8.7. “Licence” has the meaning set forth in clause 4.
2.8.8. “Licensee” means the Party to whom CBI grants the Licence, also referred to as “you” herein.
2.8.9. “Parties” means the Licensee and CBI and “Party” means either of them.
2.8.10. “Software” means:
18.104.22.168. the object code version of the software programs and applications;
22.214.171.124. downloaded from the platform, and installed and applied in a specified mobile device;
126.96.36.199. as well as any software upgrades, updates, patches, modifications and enhancements, developed and supplied by CBI to the Licensee under this Agreement, from time to time.
2.8.11. “Services” means the services supplied by CBI to the Licensee, used on the mobile device making use of the Software.
This Agreement shall commence on the Effective Date and shall continue indefinitely, or until terminated in accordance with the provisions hereof or otherwise in law.
4.1. CBI grants the Licensee a revocable, royalty free, non-exclusive and non-transferable Licence to use the Software, based on the mobile platform. The Licensee shall only use the Software in a legal and normal manner, and on the terms and conditions of this Agreement.
4.2. The Licensee shall be responsible for the security of the Software supplied to the Licensee under this Agreement, and shall use all reasonable endeavours (including taking all reasonable security measures) to ensure that access is restricted to its authorised users.
4.3. The Licensee represents and warrants that it shall use the Software solely for the purpose of and in compliance with the Agreement.
4.4. The Licensee acknowledges that the Software may only be used for non-commercial purposes. Illegal installation and use of the Software is prohibited. If such commercial operation is necessary, the Licensee shall obtain prior written authorisation and permission from CBI.
4.5. CBI may change, upgrade or transfer the Software or relevant functions from time to time, and may add new functions or services in the Software platform. If no separate agreements are prescribed by CBI for the use of the aforesaid new functions or services, the Licensee is entitled to the corresponding functions and services, which are also subject to this Agreement.
5. SOFTWARE AND SERVICES
5.1. The Software is downloaded from the platform and the Licensee shall abide by the terms and conditions of the download platform, system platform and device manufacture on application ways and restrictions of the Software.
5.2. The Licensee is prohibited to licence, sell, lease, or transfer the Software in any form, or use the Software for other commercial purpose.
5.3. The Licensee may only use the Software on the authorised system platform and device.
5.4. The Licensee shall be responsible for the accuracy, reliability, integrity and legality of input data and the legality of the way in which it obtains the data. The Licensee shall bear all risks for damage and loss of such information.
5.5. The Licensee shall safe-keep its account number and password. In case of any safety breach of the account (including but not limited to divulgence of user password), the Licensee shall notify CBI in time, and CBI will assist in taking relevant measures. Otherwise, the Licensee shall be liable for all acts or omissions related to the Licensee’s account.
5.6. CBI also offers the Licensee the smart device management Services, based on which the Licensee can access the smart devices on the cloud platform through the CBI home application, and allow connectivity between the smart devices. Service contents include smart device management, scene setup and analysis report, etc.
5.7. These functions may be optimized or modified according to users' demands or requirements of the service supplier, and service supply may be suspended due to regular and irregular maintenance.
5.8. Unless otherwise specified in applicable laws and regulations, CBI will do its best to ensure the security, validity, accuracy and reliability of the Software, technologies and information involved, but CBI is unable to guarantee the same due to restriction by available technologies.
6. THIRD PARTY SERVICES
6.1. The Licensee acknowledges that certain Services of CBI are based on Software or services provided by a third party. Such services are obtained to facilitate the Licensee’s Software.
6.2. The Software includes certain services of the third party. CBI neither controls nor bears responsibility for information and services of the third party.
6.3. The Licensee acknowledges that CBI cannot guarantee that the Software always utilises or contains third party services, or that CBI will use other Software provided by the same third party in future. Likewise, CBI may use similar services supplied by another third party. Upon its use and application by CBI, the aforesaid corresponding Software or services are likewise subject to this Agreement.
7. INTELLECTUAL PROPERTY
7.1. CBI and its licensors retain all Intellectual Property rights to, and in respect of, the Software. The Licensee shall only use the Software subject to this Agreement and for the purposes for which the Software has been developed and supplied to the Licensee.
7.2. Nothing in this Agreement transfers or conveys to the Licensee any rights of ownership in CBI’s Intellectual Property. The Licensee acknowledges and agrees that CBI shall retain and own all right, title and interest in all Intellectual Property in and to the Software, and all copies thereof.
7.3. Without limitation to the above, the Licensee shall not have any right to directly or indirectly, decompile, disassemble, or reverse engineer the Software, or to licence, sub-licence, lease, transfer, dispose of, distribute, disclose or otherwise exploit the Software or any Intellectual Property whatsoever of CBI and its licensors, or any part thereof, or to attempt to do so, or to or allow others to do so.
7.4. Should the Licensee become aware of any threatened or actual infringement of any patent, design, copyright or other Intellectual Property of CBI or its licensors, then the Licensee shall forthwith, in writing inform CBI accordingly and shall provide such cooperation and assistance as CBI may reasonably require in the enforcement of its rights against any person.
7.5. In the event of any claim being proved by a third party in respect of an infringement of any Intellectual Property rights relating to the Software (other than based on a design or instructions furnished by the Licensee), CBI shall at its expense and sole election either replace or modify the Software with non-infringing Software or procure the right for the Licensee to use such Software, provided that CBI is given full opportunity to conduct all negotiations in respect of such claim. Such claim shall not be acknowledged or settled by the Licensee without prior written consent of CBI.
7.6. The Licensee warrants that:
7.6.1. any design or development instructions furnished by it shall not be such as to cause the Software to infringe any Intellectual Property rights of a third party;
7.6.2. it shall not during or after expiry or termination of the Agreement contest or challenge CBI’s ownership in the Intellectual Property related to the Software.
8. PERSONAL INFORMATION AND CONFIDENTIALITY
8.2. Each Party may have access to Confidential Information of the other Party under this Agreement. Each Party agrees that it shall use at least the same degree of care in protecting Confidential Information received from the other Party as it uses to protect its own Confidential Information of a similar nature, but in any event not less than reasonable care.
8.3. Any Confidential Information disclosed may only be used by the receiving Party for the purposes of this Agreement and may not be reproduced without the written consent of the disclosing Party, except where necessary to implement this Agreement or as otherwise specifically agreed. No disclosure of Confidential Information to a third party can be made without the prior written consent of the disclosing Party, which shall always be subject to the third party in question having provided confidentiality undertakings in writing equivalent in all respects to those contained herein.
8.4. In order to assure adequate protection of Confidential Information, the Licensee shall prevent access by any unauthorised person(s) to areas containing Confidential Information. To the extent possible, all layouts, drawings, plans and other tangible sources of Confidential Information shall be kept in a secure (i.e. locked) location during non-business hours.
8.5. Except to the extent expressly set forth herein, neither the execution of this Agreement nor the disclosure of any Confidential Information shall be construed as granting to the receiving Party, either expressly or by implication, any right or licence under any Intellectual Property right now or hereafter held or controlled by the disclosing Party except to the extent necessary for the receiving Party to perform its obligations under this Agreement. In any event, the copyright for any Confidential Information shall always remain vested in the disclosing Party. The disclosing Party provides no warranty as to the correctness or accuracy of Confidential Information.
8.6. Upon termination of this Agreement for whatsoever reason, the disclosing Party may request in writing that the receiving Party return or destroy forthwith all Confidential Information (and copies thereof), supplied in whatever form or media. The receiving Party shall certify in writing to the disclosing Party such return or destruction within 10 (ten) days thereafter.
9. BREACH AND INSOLVENCY
9.1. The following actions are breaches of this Agreement, by the Licensee:
9.1.1. issuing or sharing computer viruses, worms, malicious codes, or software that deliberately damages or changes mobile device platform/s or data;
9.1.2. collecting information or data of other users without authorisation;
9.1.3. maliciously using the Software in an automated way, causing over loading to the server, or interfering with or damaging a/the web server and network links in other forms;
9.1.4. attempting to visit server data or communication data of the system, without authorisation;
9.1.5. interfering with or damaging the production application by other users.
9.2. The Licensee understands, consents to and agrees that:
9.2.1. CBI in its sole discretion will determine whether or not the Licensee is involved in the breaches contemplated in clause 9.1 above or otherwise, and may suspend or terminate the Licence according to determination results, or CBI may take any other steps necessary to rectify the breach/es, including court action/application.
9.2.2. CBI will directly delete information and/or data in breach of the applicable law, or infringing others' legal rights, or in breach of the Agreement, whilst using the Software.
9.2.3. if a third party suffers damage due to the Licensee’s breach of contract or application standards, the Licensee shall be solely and severally liable to that third party. The Licensee undertakes to indemnify CBI from all damages, claims losses or additional expenses incurred as a result thereof.
9.2.4. if CBI suffers any loss or damage due to and occasioned by the Licensee’s breach of applicable laws, or the Agreement, the Licensee shall compensate CBI for all losses and (or) expenses incurred thereby.
10. GOVERNING LAW
10.1. This Agreement shall in all respects be governed by the law of the Republic of South Africa, without regard to its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall be excluded.
10.2. This clause 10 is severable from the rest of the Agreement and shall survive the expiry or termination for whatsoever reason of the Agreement.
11. LIMITATION OF LIABILITY AND INDEMNITY
11.1. Neither Party shall be liable to the other for any loss of profit, loss of use, interruption or reduction of operation, loss of data (including the recovery thereof), loss of production, loss of contracts or for any indirect or consequential damage that may be suffered by the other even if advised of the possibility of such damages and regardless of the form in which any action is brought.
11.2. Nothing contained in clause 11.1 above shall limit either Party’s liability to the other in respect of:
11.2.1. death or injury of any person, or damage to property;
11.2.2. infringement of Intellectual Property rights;
11.2.3. breach of confidentiality; or
11.2.4. intentional, fraudulent or criminal acts.
11.3. Subject to clauses 11.1 and 11.2 above, each Party (the “indemnifying Party”) agrees to defend, indemnify and hold the other Party, its directors, employees, agents and other members of its group of companies, as that term is defined in the Companies Act 71 of 2008 of South Africa, (each an “indemnified Party”) harmless from any and all claims, damage, cost, liability and expense including reasonable attorney's fees caused by, relating to or arising from:
11.3.1. the acts or omissions of the indemnifying Party, its directors, employees or agents;
11.3.2. any alleged delict, or breach of any contractual right of a third party, or infringement of any Intellectual Property right of a third party, or confidentiality obligations, or rights of privacy and publicity resulting from, relating to or arising out of the acts or omissions of the indemnifying Party, except where any such claim relates to or arises out of any material furnished by the indemnified Party.
11.4. The Parties will co-operate in the defence of any matter arising from an indemnity under clause 11.3. A Party has the right to participate in the conduct of the defence with legal counsel chosen by it.
12. COMPLIANCE WITH LAWS, CONTENT STANDARDS AND ANTI-CORRUPTION
12.1. The Licensee undertakes not to conduct any act in breach of applicable laws or use the Software and Service improperly.
12.2. Such acts and use may include (but not be limited to) uploading, transferring or sharing information containing any of the following contents:
12.2.1. undermining or violating the basic human rights and principles enshrined in the Constitution of the Republic of South Africa;
12.2.2. endangering state safety and security, disclosing state secrets, subverting state power and sabotaging state unity;
12.2.3. inciting national hatred and discrimination;
12.2.4. spreading obscenity, pornographic material, gambling, violence, murder and terror or abetting a crime;
12.2.5. insulting or slandering others and infringing on the legal rights and interests of others;
12.2.6. containing other contents restricted or forbidden by applicable laws, regulations, rules, provisions and other legal standards.
12.3. Each Party shall in all matters arising from or relating to the fulfilment of this Agreement conform at its own expense with all laws and legislation relevant hereto.
12.4. Failure by a Party to comply with this clause 12 shall constitute a material breach of contract.
13.1. Validity and Severability
If any provision of this Agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the Parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same objective as the invalid or unenforceable provision, to adopt such means by way of variation of this Agreement.
13.2. Vis Major
13.2.1. Failure to comply with any of the terms and conditions of the Agreement if occasioned by or resulting from unstable factors in internet services, links, application restrictions or application failures due to inherent defects of Internet and e-communication, any act of nature or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations (including without limitation in respect of any permit, licence or authorisation), as well as shortages, interruptions, fluctuations or the unavailability of electrical power, water supply or means of communication or any circumstances of like or different nature beyond the reasonable control of the Party so failing ("vis major"), will not be deemed to be a breach of the Agreement, nor will it subject either Party to any liability to the other.
13.2.2. Should a Party’s performance of an obligation become temporarily impossible owing to vis major, that Party shall:
188.8.131.52. as soon as reasonably possible after the vis major sets in notify the other Party in writing of the incidence of vis major;
184.108.40.206. be released from performance of the affected obligation for so long as the vis major prevails;
220.127.116.11. use its best endeavours to recommence performance of the affected obligation, to whatever extent reasonably possible, without delay; and
18.104.22.168. co-operate with the other Party in implementing such contingency measures as the other Party may reasonably require.
13.3. Should the circumstances of vis major continue for longer than 90 (ninety) days, either Party shall be entitled to terminate the Agreement, with immediate effect by written notice.