End User License Agreement

The Parties to this Agreement are:

1.1.1 Quintica Group Shared Services Proprietary Limited, incorporated as a private company in the Republic of South Africa with company registration number 2014/188455/07, whose registered office is Culross on Main, Building 2, 34 Culross Road, Bryanston, Gauteng, South Africa, T/A WorkWide (hereinafter “WorkWide”); and

1.1.2 the party listed under “Customer Details” in the End User Acceptance Form to which this Agreement is annexed (hereinafter the “Customer”).

In this Agreement the following words and expressions have the meanings assigned to them:

• Admin User — a Customer Personnel authorised to act as the administrative user of the WorkWide Technology.
• Agreement — this EULA including the End User Acceptance Form/s and all schedules, appendices and annexures.
• Confidential Information — the terms of this Agreement and any information concerning a Party, its clients and suppliers, including the WorkWide Technology (proprietary to WorkWide) and Customer Data (proprietary to the Customer).
• Customer’s Data — electronic data uploaded by or for the Customer and processed in the WorkWide Technology.
• Customer’s Personnel — all Users, employees, partners, contractors and sub-contractors of the Customer.
• End User Acceptance Form — WorkWide’s form specifying the Subscription Services the Customer has ordered from the Reseller.
• Intellectual Property Rights — all patents, trademarks, service marks, know-how, designs, copyrights, source codes, inventions, trade secrets and other intellectual property rights.
• Mobile User — Customer Personnel authorised to use the mobile application form of the Subscription Services.
• Reseller — WorkWide’s authorised reseller who has contracted directly with the Customer.
• Services — the Subscription Services and/or Support Services.
• Subscription Services — the subscription services in respect of the WorkWide Software as set out in an End User Acceptance Form.
• Subscription Term — the subscription term set out in the End User Acceptance Form.
• Support Services — the support services described in Appendix 1.
• Upgrades — new versions of the WorkWide Software with significantly improved functionality, indicated by a major version-number change.
• User — an Admin User, Mobile User and/or Time and Task User.
• WorkWide Software — WorkWide’s solutions licensed to the Customer to facilitate operation of the Subscription Service.
• WorkWide Technology — the Subscription Service, WorkWide Software, Documentation, Support Services and related technology, including updates, Upgrades and derivative works, and WorkWide’s Intellectual Property Rights.

It is recorded that WorkWide is the owner of the WorkWide Technology and capable of providing the Support Services. The Customer has retained WorkWide, through the Reseller, to provide a licence, access and use rights to the Subscription Service(s) and to provide Support Services.

The Customer shall order the Services directly from the Reseller pursuant to a separate agreement specifying price, payment and other commercial terms. WorkWide is not a party to that agreement but will grant use of and provide the purchased Services pursuant to this Agreement. WorkWide will have no obligation to provide any service until it has received a signed End User Acceptance Form from the Customer. The Reseller is not authorised to make any changes to this Agreement or bind WorkWide to any additional or different terms.

Subject to the terms of this Agreement, WorkWide grants the Customer, for the Subscription Term, a limited, worldwide, non-sublicensable, personal, non-transferable, non-exclusive licence to install and execute the WorkWide Software on machines operated by or for the Customer solely to facilitate authorised User access to and use of the purchased Subscription Service. The Customer shall not use the Subscription Service in a manner that exceeds its authorised use. WorkWide will keep the WorkWide Technology under escrow with Codekeeper as continuity protection during the Subscription Term.

Subscription Services are purchased as subscriptions per User as set out in the End User Acceptance Form. Users may be added during a Subscription Term by concluding a new End User Acceptance Form. Quantities cannot be decreased during the Subscription Term. A User’s login may not be shared. WorkWide may remotely review the Customer’s use of the Subscription Services to verify compliance.

If WorkWide determines the Customer exceeds the Contractual Usage Limit, the Reseller will invoice the Customer for the over-usage at the rates in the order between Customer and Reseller, payable 14 days after invoice issue. Unpaid over-usage may result in disablement of users in excess of the Contractual Usage Limit.

WorkWide will use commercially reasonable efforts to provide Upgrades of the WorkWide Technology free of charge. Non-routine Upgrades may require a separate professional services statement of work with the Reseller, charged on a time and material basis. WorkWide will use reasonable efforts to give 90 days’ prior notice of any Upgrade and will limit Upgrade-related unavailability of the Subscription Service to no more than 8 hours per month.

WorkWide shall, during the Subscription Term, provide the Support Services to the Customer as described in Appendix 1.

The Customer shall:

• Be responsible for Customer Personnel’s compliance with this Agreement, WorkWide Documentation and the End User Acceptance Form;
• Use commercially reasonable endeavours to prevent unauthorised access to or use of the Subscription Services and notify WorkWide promptly of any such access;
• Use the WorkWide Technology only in accordance with this Agreement, the Documentation, the End User Acceptance Form and applicable laws; and
• Accept sole responsibility for all of the Customer’s Data.

The Customer shall not, and shall not permit Users or others to:

• Make any Subscription Services available to, or use them for the benefit of, anyone other than the Customer;
• Copy, translate, modify, adapt, decompile, disassemble or reverse engineer the WorkWide Software or Documentation;
• Convert any part of the WorkWide Software into source code or attempt to discover the source code;
• Merge or combine the WorkWide Software with other software without WorkWide’s prior written consent;
• Attempt to gain unauthorised access to the WorkWide Software or Documentation;
• Disclose Confidential Information to any third party;
• Circumvent any contractual usage limit;
• Develop or operate competing products or services using the WorkWide Technology;
• Use the WorkWide Technology to create or distribute viruses or other harmful code;
• Part with possession of, lend or transfer any part of the WorkWide Software or Documentation to any non-authorised person;
• License, sell, resell, sublicense, distribute, transfer, time share, rent or lease the WorkWide Technology or include it in an outsourcing offering; or
• Modify, remove or alter any trademark, copyright or other Intellectual Property notice.

All right, title and interest in and to the Intellectual Property Rights in the WorkWide Technology are and shall at all times remain vested in WorkWide. The Customer retains all rights in the Customer’s Data and grants WorkWide a royalty-free, non-exclusive, worldwide right to use that data solely for the purpose of providing the Services.

Confidential Information must be treated by each Party as strictly private, secret and confidential and may not be disclosed without the other Party’s prior written consent. Disclosure is permitted on a need-to-know basis to employees and advisors, who must first undertake in writing to protect the confidential nature of the information. Confidentiality obligations do not apply to information already in the public domain (other than through breach), required to be disclosed by law or court order, or independently developed or already known. Each Party may at any time require the return or destruction of material containing Confidential Information.

WorkWide warrants that during the Subscription Term the Subscription Services shall materially conform to the WorkWide Documentation (“Subscription Service Warranty”). If a non-conformity persists more than 30 days after written notice, the Customer may terminate the affected Subscription Service and claim a refund of prepaid fees for the remainder of the Subscription Term. Except for the warranties expressly set out in this Agreement, to the maximum extent permitted by law WorkWide disclaims all warranties of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, accuracy, title, non-infringement and fitness for a particular purpose. WorkWide does not warrant that the Subscription Service, Software or Documentation will meet the Customer’s requirements or operate without interruption or error.

WorkWide indemnifies the Customer against third-party intellectual property infringement claims arising from the Customer’s use of the WorkWide Technology in accordance with this Agreement. WorkWide may replace or modify the infringing technology, obtain a licence to continue using it, or, if none of these are commercially reasonable, terminate the affected Subscription Services and refund prepaid fees for the remaining Subscription Term. This indemnity does not apply to infringements caused by combination with non-WorkWide products, use contrary to the Documentation, customer modifications, or use of superseded versions where the current version would have avoided the claim.

The Customer shall be liable, on written demand, for all losses, liabilities, damages, claims, costs and expenses (including legal fees) incurred by WorkWide arising from negligence, intentional acts, wilful misconduct, omissions or vandalism by or on behalf of the Customer or its Personnel in connection with: tampering with or misuse of the WorkWide Technology; unauthorised modification of the WorkWide Technology; the Customer’s breach of its obligations under this Agreement; failure to maintain virus protection licences resulting in infection of the WorkWide Technology; and damage to WorkWide property.

Each Party shall indemnify the other against third-party claims relating to: bodily injury or death caused solely by the indemnifying Party’s negligence; fraudulent acts or omissions; and breaches of clauses 10 or 11.

Subject to the indemnity undertakings in clauses 14 and 15, neither Party shall be liable to the other for any indirect, special or consequential loss or damage, including loss of profit, revenue, anticipated savings, goodwill or data. WorkWide’s liability arising from the Subscription Services, whether in contract or delict (including negligence), is limited to a maximum of the Fees paid by the Customer to WorkWide for the Subscription Services in the 12-month period immediately preceding the event giving rise to the liability. The existence of more than one claim shall not enlarge this limit.

This Agreement commences on the Date of Signature and continues until the Termination Date. Either Party may terminate immediately on written notice if the other commits a material breach not remedied within 45 days, or commits an act of insolvency or is placed under business rescue. On termination, the Customer must stop using the Services and rights granted under the End User Acceptance Form terminate. Refunds of prepaid fees may apply where termination is by the Customer for WorkWide’s breach.

Neither Party shall be liable for delays caused by events beyond its reasonable control (acts of God, strikes, war, fire, flood, pestilence, government order and the like). Performance is suspended during the event and resumes on cessation. If such a delay continues for more than 120 days, either Party may terminate this Agreement.

To the extent the End User Acceptance Form conflicts with this Agreement, the End User Acceptance Form prevails to the extent permitted by law.

Any dispute arising out of or in connection with this Agreement shall be decided by arbitration held in Sandton in accordance with the prevailing Rules of Arbitration of the Arbitration Foundation of South Africa (AFSA), in English. The award is final and binding. This Agreement is governed by the laws of the Republic of South Africa. Nothing prevents either Party from applying for urgent interim relief from a court of competent jurisdiction.

The Parties choose their respective addresses as their domicilium citandi et executandi. Notices delivered by hand are deemed received on the date of delivery; notices sent by prepaid registered post are deemed received on the 8th business day after posting. Notices actually received (including by facsimile) constitute adequate notice.

Neither Party may cede its rights or delegate its obligations without the prior written consent of the other Party, which will not be unreasonably withheld.

This Agreement and the End User Acceptance Form constitute the sole record of the agreement between the Parties on its subject matter. No Party is bound by any express, tacit or implied term not recorded herein.

No addition, variation, consensual cancellation or novation of this Agreement is of any force or effect unless reduced to writing and signed by all Parties or their duly authorised representatives.

Waiver of any breach does not prejudice remedies for any continuing or other breach. Delay or indulgence does not operate as a waiver. Termination does not prejudice rights in respect of antecedent breach.

If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions remain in full force, and the Parties shall agree a valid alternative achieving the same object.

This Agreement is binding upon the successors and permitted assigns of the Parties.

This Agreement may be executed in counterparts, each deemed an original.

The persons signing this Agreement warrant that they are properly empowered and duly authorised to do so on behalf of the Parties.

Each Party shall bear its own costs relating to the negotiation, drafting and settling of this Agreement.