Legal
2021 End User License Agreement
The 2021 WorkWide Mobile End User License Agreement, published as readable website text.
WORKWIDE END USER LICENSE AGREEMENT
CONTENTS
Clause Page
1. PARTIES ............................................................................................. 2
2. INTERPRETATION ............................................................................... 2
3. RECORDAL .......................................................................................... 6
4. ORDERING .......................................................................................... 7
5. GRANT OF USER RIGHTS ..................................................................... 7
6. USAGE LIMITS .................................................................................... 7
7. UPGRADES .......................................................................................... 9
8. SUPPORT SERVICES ........................................................................... 10
9. RIGHTS AND OBLIGATIONS OF THE CUSTOMER................................. 10
10. INTELLECTUAL PROPERTY RIGHTS .................................................... 12
11. CONFIDENTIALITY ............................................................................. 13
12. WARRANTIES AND ACKNOWLEDGEMENTS ......................................... 15
13. THIRD PARTY CLAIM INDEMNITY ...................................................... 16
14. CUSTOMER INDEMNITY ..................................................................... 17
15. RECIPROCAL INDEMNITY .................................................................. 18
16. LIMITATION OF LIABILITY ................................................................ 18
17. DURATION AND TERMINATION .......................................................... 19
18. FORCE MAJEURE ................................................................................ 20
19. CONFLICTS WITH END USER ACCEPTANCE FORM............................... 21
20. ARBITRATION .................................................................................... 21
21. NOTICES ............................................................................................ 22
22. CESSION, DELEGATE AND ASSIGNMENT ............................................ 23
23. WHOLE AGREEMENT .......................................................................... 23
24. VARIATION ........................................................................................ 23
25. PARTIES NOT AFFECTED BY WAIVER ................................................. 23
26. SEVERABILITY ................................................................................... 24
27. BENEFITS ........................................................................................... 24
28. COUNTERPARTS ................................................................................. 24
29. WARRANTY OF AUTHORITY ............................................................... 24
30. COSTS ................................................................................................ 24
1. PARTIES
1.1 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 referred to as “WorkWide”); and
1.1.2 the party listed under “Customer Details” in the End User Acceptance
Form to which this Agreement in annexed (“hereinafter referred to
as the “Customer”).
1.2 The Parties agree as set out below.
OPERATIVE CLAUSES
2. INTERPRETATION
2.1 Defined terms
In this Agreement the following words and expressions shall have the following
meanings assigned to them:
2.1.1 “Admin User” means a Customer Personnel who is authorised by the
Customer to act as the administrative user of the WorkWide Technology,
for whom the Customer has purchased the Subscription Services;
2.1.2 “the/this Agreement” means the agreement set out in this End User
License Agreement including the End User Acceptance Form/s and all
schedules, appendices and annexures hereto and any amendments
thereto as may be agreed to by the Parties in writing from time to time;
2.1.3 “Confidential Information” means the terms of this Agreement, any
information concerning a Party, its clients and/or its suppliers including
its operations, business and financial affairs including, but not limited
to, information expressly marked or designated by a Party as
confidential and all other matters which relate to the business of either
Party and in respect of which information is not readily available in the
ordinary course of business to a competitor of such Party. The following
shall be included in the definition of the “Confidential Information”: (a)
the WorkWide Technology is confidential and proprietary to WorkWide
(b) Customer Data is confidential and proprietary to the Customer;
2.1.4 “Customer’s Data” means electronic data uploaded by or for the
Customer and the Customer’s Personnel and processed in the WorkWide
Technology, but excluding the WorkWide Technology;
2.1.5 “Customer’s Personnel” means, all Users, employees, partners,
contractors, sub-contractors of the Customer;
2.1.6 “Date of Signature” means the date of signature of the End User
Acceptance Form by the Customer;
2.1.7 “the Disclosing Party” means the party disclosing the Confidential
Information;
2.1.8 “End User Acceptance Form” means WorkWide’s end user
acceptance form provided to the Customer specifying the Subscription
Services that the Customer has ordered from the Reseller along with
the term and scope thereof, signed and agreed by the Customer;
2.1.9 “Initial Term” means the initial term of authorised use and provision
of the Services as set forth in an End User Acceptance Form;
2.1.10 “Intellectual Property Rights” means all patents, trademarks,
service marks, know-how, designs, design rights, copyright (including
all copyright in any designs and computer software), source codes,
inventions, trade secrets, and all other intellectual property rights;
2.1.11 “Mobile User” means a Customer Personnel who is authorized by the
Customer to use the mobile application form of the Subscription
Services and for whom the Customer has purchased the Subscription
Services;
2.1.12 “Party/ies” means WorkWide and the Customer, or any one of them
as the context may indicate;
2.1.13 “the Receiving Party” means the party receiving the Confidential
Information;
2.1.14 “Renewal Term” means the renewal term of authorized use and
provision of the Services;
2.1.15 “Reseller” means WorkWide’s authorized reseller who has entered into
a separate transaction with the Customer to purchase the Services to
be delivered by WorkWide;
2.1.16 “Services” means the Subscription Services and/or the Support
Services, or any one of them or a combination of them as the context
may indicate;
2.1.17 “Subscription Services” means the subscription services in respect of
the WorkWide Software as ordered by the Customer from the Reseller
and set out in an End User Acceptance Form;
2.1.18 “Subscription Term” means the subscription term as set out in the
End User Acceptance Form;
2.1.19 “Support Services” means the support services, in respect of the
Subscription Service, to be rendered by WorkWide to the Customer as
more fully described in Appendix 1 hereto;
2.1.20 “Termination Date” means the date on which an End User Acceptance
Form is terminated for any reason whatsoever;
2.1.21 “Upgrades” means new versions of the WorkWide Software that
include new major features and significantly improved functionality, and
which are signified by version number changes to the left of the decimal
point, for example, version 5.0, 6.0;
2.1.22 “User” means an App User and a Web User, or any one of them as the
context may indicate;
2.1.23 “Web User” means an individual who is authorized by the Customer to
use the Web form of the WorkWide Technology, for whom the Customer
has purchased the Subscription Services;
2.1.24 “WorkWide Documentation” means the WorkWide product
documentation relating to the operation and use of the Subscription
Services including technical design or interface documentation, usage
guide, configuration guide, usage policy and release notes, as updated
from time to time by WorkWide, in it’s sole discretion;
2.1.25 “WorkWide Software” means WorkWide’s WorkWide solutions
licensed by WorkWide to the Customer that is deployed on machines
operated by or for the Customer to facilitate operation of the
Subscription Service;
2.1.26 “WorkWide Technology” means
2.1.26.1 The Subscription Service, WorkWide Software, WorkWide
Documentation, Support Services and WorkWide
technology and methodologies (including, without
limitation, products, software tools, software designs,
algorithms, templates, software (in source and object
forms), architecture, class libraries, objects and
documentation) created by or for, or licensed to,
WorkWide;
2.1.26.2 updates, Upgrades, improvements, configurations,
extensions, and derivative works of the foregoing and
related technical or end user documentation or manuals;
and
2.1.26.3 WorkWide’s Intellectual Property Rights as set out in clause
10.1 below.
2.2 Construction
In this Agreement:
2.2.1 unless the context clearly indicates otherwise, words importing natural
persons shall include a reference to juristic persons and vice versa, a
reference to one gender includes a reference to the other genders, and
a reference to the singular includes a reference to the plural and vice
versa;
2.2.2 should any provision in a definition be a substantive provision conferring
rights or imposing obligations on any Party, then effect shall be given
to that provision as if it were a substantive provision in the body of this
Agreement;
2.2.3 any reference to an enactment, regulation, rule or by-law is that
enactment, regulation, rule or by-law as at the Date of Signature, and
as amended or replaced from time to time;
2.2.4 schedules, appendices and annexures to this Agreement shall be
deemed to have been incorporated herein and shall form an integral
part hereof;
2.2.5 a reference to a Party in this Agreement includes that Party’s successors
and permitted assigns;
2.2.6 if any date which is specified for the performance of any obligation falls
on a date which is not a Business Day, such obligation shall be
performed on the 1st (first) Business Day thereafter;
2.2.7 the use of the word “including” followed by a specific example/s shall
not be construed as limiting the meaning of the general wording
preceding it;
2.2.8 the expiration or termination of this Agreement shall not affect those
provisions of this Agreement which expressly provide that they will
operate after any such expiration or termination or which of necessity
must continue to have effect after such expiration or termination,
notwithstanding the fact that the clauses themselves do not expressly
provide this;
2.2.9 in its interpretation (this Agreement being the product of negotiations
between the Parties), this Agreement shall not be construed in favour
of or against either Party by reason of the extent to which that Party or
its professional advisors participated in the preparation of this
Agreement;
2.2.10 recordals shall be binding on the Parties and are not merely for
information purposes;
2.2.11 the headings appearing in this Agreement are for reference purposes
only and shall not affect the interpretation hereof;
2.2.12 words and expressions defined in any sub-clause shall, for the purposes
of the clause of which that sub-clause forms part, bear the meaning
assigned to such words and expressions in that sub-clause;
2.2.13 terms, other than those defined within this Agreement, will be given
their plain English meaning and those terms, acronyms, abbreviations
and phrases known in the information technology industry will be
interpreted in accordance with their generally-known meanings; and
2.2.14 where figures are referred to in numerals and words, if there is any
conflict between the two, the words shall prevail.
3. RECORDAL
3.1 It is recorded that WorkWide is:
3.1.1 the owner of the WorkWide Technology; and
3.1.2 capable of providing the Support Services.
3.2 The Customer has retained WorkWide, through the Reseller, to:
3.2.1 provide the Customer with a license, access and use rights to the
Subscription Service/s; and
3.2.2 provide the Customer with Support Services.
4. ORDERING
The Customer shall order the Services directly from the Reseller pursuant to a
separate agreement specifying price, payment and other commercial terms
between the Reseller and the Customer. WorkWide is not a party to such separate
agreement but will grant use of and provide such purchased Services to the
Customer pursuant to this Agreement. For each order, the Reseller or WorkWide
will provide the Customer with an End User Acceptance Form for the Customer to
sign and return to WorkWide. WorkWide will have no obligation to provide any
service unless and 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 (including any End User Acceptance Forms issued hereunder) or bind
WorkWide to any additional or different terms or conditions.
5. GRANT OF USER RIGHTS
5.1 For each End User Acceptance Form signed between WorkWide and the Customer
in respect of Subscription Services, and subject to the terms contained in this
Agreement, WorkWide hereby grants to the Customer, for the Subscription Term,
the license, access and use rights set out in this clause 5, with respect to the
Subscription Service described in that End User Acceptance Form.
5.2 Subject to the terms of this Agreement, WorkWide hereby grants to the Customer,
for the Subscription Term, a limited, worldwide, non-sublicensable, personal, non-
transferable, and non-exclusive right and license to install and execute the
WorkWide Software on machines operated by or for the Customer solely to
facilitate the Customer’s authorized User access to and use of the purchased
Subscription Service.
5.3 The Customer shall not use or otherwise access the Subscription Service in a
manner that exceeds the Customer’s authorised use as set forth in this Agreement
and applicable End User Acceptance Form.
6. USAGE LIMITS
6.1 Subscription Service Usage Limits
In respect of Subscription Services, unless otherwise provided in the applicable
End User Acceptance Form:
6.1.1 Subscription Services are purchased as subscriptions per User as set out
in a relevant End User Acceptance Form;
6.1.2 Users may be added during a Subscription Term by the Parties
concluding a new End User Acceptance Form in respect of such
additional Users;
6.1.3 Quantities of Subscription Services purchased as per the End User
Acceptance Form cannot be decreased during the relevant Subscription
Term;
6.1.4 a quantity in a End User Acceptance Formrefers to the Users, and the
Subscription Services may not be accessed by more than that number
of Users;
6.1.5 a User’s login may not be shared with any other individual; and
6.1.6 a User identification may only be reassigned to a new individual
replacing one who will no longer use the Subscription Services.
6.2 Use Verification
WorkWide may remotely review the Customer’s use of the Subscription Services,
and upon WorkWide’s written request the Customer shall provide reasonable
assistance to WorkWide to enable WorkWide to verify the Customer’s compliance
with this Agreement and the End User Acceptance Form.
6.3 Over Usage
6.3.1 If WorkWide determines that the Customer exceeds a contractual usage
limit (“the Contractual Usage Limit”) contemplated in the original End
User Acceptance Form (“the Original End User Acceptance Form”), the
Reseller, at the instruction of WorkWide, shall invoice the Customer for:
6.3.1.1 Such numbers, types and identifiers of permitted Users
which are in excess of the Contractual Usage Limit set out
in the the Original End User Acceptance Form (“the Over-
Usage”);
6.3.1.2 The term of the Over-Usage Subscription Services shall be
for the period commencing on the 1st day of the month in
the month when the Customer exceeded the Contractual
Usage Limit until the end of the Subscription Term set out
in the the Original End User Acceptance Form;
6.3.1.3 The fees and other charges payable by the Customer for
the Over-Usage shall be in line with those fees and charges
set out for the Subscription Services in the order between
the Customer and the Reseller (“the Over-Usage Fees”);
6.3.1.4 The Over-Usage Fees will be invoiced to the Reseller to the
Customer within 30 days of WorkWide becoming aware of
the Over-Usage; and
6.3.1.5 The invoice in respect of the Over-Usage Fees will be
paayble 14 days after issue of such invoice.
6.3.2 To the extent that the Customer does not make payment of the invoice
in accordance with clause 6.3, WorkWide shall disable the unpermitted
Users which are in excess of the Contractual Usage Limit.
7. UPGRADES
7.1 WorkWide shall, subject to clause 7.3 and 7.4 below, use commercially reasonable
efforts to provide the Customer with any Upgrades of the WorkWide Technology.
7.2 To the extent that WorkWide is, in it’s sole discretion, able to make any such
Upgrades to the WorkWide Technology available to the Customer, WorkWide
undertakes, subject to clauses 7.3 and 7.4, to supply such Upgrades to the
Customer, free of charge.
7.3 Should WorkWide, determine in it’s discretion that the provision of the Upgrade
to the Customer is not routine, WorkWide may elect not to make the Upgrade
available to the Customer unless the Customer solicits WorkWide, through a
statement of work for professional services entered into with the Reseller, to
install the relevant Upgrade on behalf of the Customer.
7.4 For the avoidance of doubt, it is specifically agreed by the Parties that any
statement of work for professional services required in respect of the installation
of a relevant Upgrade by WorkWide and requested by the Customer shall be
charged by Reseller to the Customer on a time and material basis.
7.5 WorkWide will use reasonable efforts to give the Customer 90 days prior notice of
any Upgrade to the Subscription Services. Notwithstanding the foregoing,
WorkWide may provide the Customer with a shorter notice period of an Upgrade
if necessary, in the reasonable judgement of WorkWide, for WorkWide to
efficiently provide the Subscription Service.
7.6 WorkWide will use commercially reasonable efforts to limit the period of time
during which the Subscription Service is unavailable due to the application of
Upgrades to no more than 8 hours per month.
8. SUPPORT SERVICES
WorkWide shall, during the Subscription Term, provide the Support Services to
the Customer.
9. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
9.1 The Customer shall:
9.1.1 Be responsible for Customer Personnel’s compliance with this
Agreement, WorkWide Documentation and a End User Acceptance
Form;
9.1.2 Use commercially reasonable endeavours to prevent unauthorised
access to the use of the Subscription Services, and notify WorkWide
promptly of any such unauthorised access of use;
9.1.3 Use WorkWide Technology only in accordance with this Agreement,
WorkWide Documentation, End User Acceptance Form and applicable
laws and government regulations; and
9.1.4 accept sole responsibility for all of the Customer’s Data and WorkWide
shall not be held responsible for any claim by of whatsoever nature for
any loss of the Customer’s Data.
9.2 The Customer shall not, and shall not permit Users, the Customer’s Personnel, or
others to:
9.2.1 make any Subscription Services available to, or use the Subscription
Service for the benefit of, anyone other than the Customer, unless
expressly stated otherwise in an End User Acceptance Form or the
WorkWide Documentation;
9.2.2 copy, translate, modify, adapt, decompile, disassemble or reverse
engineer the WorkWide Software or the WorkWide Documentation;
9.2.3 convert the whole or any part of the WorkWide Software into source
code or make any attempt to discover the source code of the WorkWide
Software;
9.2.4 merge, combine or use the whole or any part of the WorkWide Software
or the WorkWide Documentation with any other computer software or
other written materials or documentation without the prior written
consent of WorkWide, which consent can be withheld by WorkWide in
its sole discretion;
9.2.5 attempt to gain unauthorised access to the WorkWide Software or
WorkWide Documentation;
9.2.6 directly or indirectly, reveal or otherwise disclose or divulge the
Confidential Information, to any third party;
9.2.7 permit direct or indirect access to or use of WorkWide Technology in any
way that circumvents a contractual usage limit;
9.2.8 use any of the Subscription Services to access to the WorkWide
Intellectual Property Rights except under this Agreement, the End User
Acceptance Form/s or the WorkWide Documentation;
9.2.9 access the WorkWide Technology for the purpose of developing or
operating products or services intended to be offered to third parties in
competition with the Subscription Services;
9.2.10 use the WorkWide Technology to create, use, send, store or run viruses
or other harmful computer code, files, scripts, agents or other programs
or otherwise in a malicious act or disrupt its security, integrity or
operation;
9.2.11 use the WorkWide Technology to access or disable any WorkWide or
third party data;
9.2.12 part with possession of, lend or transfer any part of the WorkWide
Software or WorkWide Documentation to any non-authorised person;
9.2.13 license, sell, resell, sublicense, distribute, make available, transfer, time
share rent or lease the WorkWide Technology or include the WorkWide
Technology in an outsourcing offering; or
9.2.14 use the trademarks of the WorkWide Technology and refrain from
modifying, removing or otherwise altering such trademarks, copyright
or other Intellectual Property of the WorkWide Technology.
9.3 Notwithstanding anything contained in this Agreement, the provisions of clause
9.2 as well as any provision required for it’s construction or enforcement, shall
survive the Termination Date.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 WorkWide’s Intellectual Property
10.1.1 The Customers acknowledges that all right, title and interest in and to
the Intellectual Property Rights in the WorkWide Technology
(“WorkWide’s Intellectual Property”) are and shall at all times remain
vested with WorkWide.
10.1.2 The Customer shall not during or at any time after the expiry or
termination of this Agreement dispute the ownership by WorkWide of
WorkWide’s Intellectual Property.
10.1.3 The Customer acknowledges that all rights in any copy, translation,
update, Upgrade, adaptation or derivation of WorkWide’s Intellectual
Property including any improvement or development thereof belongs
exclusively to, and shall be and remain the sole property of WorkWide.
10.1.4 The Customer shall hold all information and documentation relating to
WorkWide’s Intellectual Property in the strictest confidence and shall
take all reasonable precautions to safeguard WorkWide’s Intellectual
Property from any unauthorised copying, distribution, disclosure,
reproduction or use.
10.1.5 The Customer shall notify WorkWide promptly of any unauthorised
disclosure, possession or use of WorkWide’s Intellectual Property which
becomes known to the Customer and to assist WorkWide in prosecuting
any claims or proceedings in connection therewith.
10.2 Customer’s Intellectual Property
10.2.1 As between the Customer and WorkWide, the Customer shall retain all
of its rights, title, and interest in and to its Intellectual Property Rights
in the Customer’s Data (“Customer’s Intellectual Property”).
10.2.2 The Customer hereby grants to WorkWide a royalty-free, fully paid, non-
exclusive, non-transferable (except as set forth in clause 22), non sub-
licensable, worldwide right to use Customer’s Data solely for the
purpose of providing the Services.
10.3 Notwithstanding anything contained in this Agreement, the provisions of this
clause 10 as well as any provision required for it’s construction or enforcement,
shall survive the Termination Date.
11. CONFIDENTIALITY
11.1 The Parties acknowledge that:
11.1.1 the Confidential Information is of a sensitive nature and is a valuable,
special and unique asset of the Disclosing Party, as the case may be;
and
11.1.2 the Disclosing Party may suffer irreparable harm or substantial and
other loss in the event of such Confidential Information being disclosed
or used otherwise than in accordance with this Agreement.
11.2 Except as otherwise provided in this clause 11, the Confidential Information shall
be treated and safeguarded by the Parties as strictly private, secret and
confidential. No Party shall, whether directly or indirectly, reveal, otherwise
disclose or divulge, or give access, whether remotely, physically or otherwise, to
such Confidential Information, whether during or after the termination of this
Agreement, to any third party without the prior written consent of the other Party
hereto.
11.3 The aforegoing restrictions shall not apply to the disclosure of necessary
Confidential Information to employees and advisors of the Parties on a need to
know basis and in the case of a Party's employees, to enable the Party to perform
its obligations under and in terms of this Agreement. Any third party that may
become privy to such Confidential Information shall first undertake in writing to
protect the confidential nature thereof.
11.4 The Receiving Party irrevocably and unconditionally agrees and undertakes:
11.4.1 not to use or permit the use of the Confidential Information for any
purpose other than in connection with and arising out of this Agreement
and, in particular, not to use or permit the use of the Confidential
Information, whether directly or indirectly, to obtain a commercial,
trading, investment, financial or other advantage over the Disclosing
Party or otherwise use it to the detriment of the Disclosing Party;
11.4.2 to take all such steps as may be reasonably necessary to protect the
Confidential Information against theft, damage, loss, unauthorised
access (including access by electronic means) and to prevent the
Confidential Information from falling into the hands of unauthorised
third parties.
11.5 The Parties shall, both before and after the disclosure of any Confidential
Information to an employee for the purpose contemplated in clause 11.2, inform
such employee of, and take all practical steps to impress upon him or her, the
secret and confidential nature of the Confidential Information and the obligations
imposed upon the Receiving Party under this Agreement in relation to the
disclosure of such Confidential Information.
11.6 Each Party shall be responsible for procuring that its employees abide by the
provisions of this Agreement and agree to be bound by the confidentiality
undertakings given by the Receiving Party to the Disclosing Party in terms of this
Agreement. A breach of any of the terms of this Agreement by any employee of
the Receiving Party shall be deemed to be a breach committed by the Receiving
Party, entitling the Disclosing Party to avail itself of the remedies contemplated.
11.7 The confidentiality undertaking in this clause 11 shall not apply in respect of
Confidential Information:
11.7.1 within the public domain other than as a result of a breach of this clause
15; or
11.7.2 where the disclosure is required to satisfy an order of a court of
competent jurisdiction or other judicial decree, provided that in this case
the Party required to disclose same has given the other Party sufficient
prior written notice, where it is able to do so, to enable such other Party
to defend or protect such disclosure; or
11.7.3 where the provisions of any law or regulation in force from time to time
requires disclosure.
11.8 Information already known by a Party, information disclosed to it by a third party
without being in breach of any confidentiality provisions, or information which was
rightfully in a Party’s possession without obligation of confidentiality, or was
approved for release with the prior written consent of the Disclosing Party and
information independently developed by a Party is also excluded from the
confidentiality undertaking contained in this clause 11.
11.9 The Disclosing Party may at any time request the Receiving Party in writing to
return, and procure the return by any employee of the Receiving Party, any
material containing, pertaining to or relating to Confidential Information disclosed
pursuant to the terms of this Agreement, and may in addition request the
Receiving Party to furnish a written statement to the effect, that upon such return,
the Receiving Party has not retained in its possession or under its control either
directly or indirectly any such material.
11.10 As an alternative to the return of the material contemplated in clause 11.9 above,
the Receiving Party shall at the written request of the Disclosing Party, destroy
such material, and procure the destruction of such material by any employee of
the Receiving Party, and furnish the Disclosing Party with a written statement to
the effect that all such material has been destroyed.
11.11 Notwithstanding anything contained in this Agreement, the provisions of this
clause 11 as well as any provision required for it’s construction or enforcement,
shall survive the Termination Date.
12. WARRANTIES AND ACKNOWLEDGEMENTS
12.1 Subscription Service Warranty
12.1.1 WorkWide warrants and represents that during the Subscription Term,
the Subscription Services shall materially conform to the WorkWide
Documentation (“Subscription Service Warranty”).
12.1.2 To submit a Subscription Services Warranty claim, the Customer shall:
12.1.2.1 Reference this clause 12.1; and
12.1.2.2 Submit a Support Services request to resolve the non-
conformity as provided in Annexure A.
12.1.3 If the non-conformity persists without relief for more than 30 (thirty)
days after written notice to WorkWide of a warranty claim under this
this clause 12.1, then Customer may terminate the affected
Subscription Service and submit to the Reseller a claim for a refund of
any prepaid Fees covering the remainder of the Subscription Term of
the affected Subscription Service after the date of termination.
12.1.4 This clause 12.1 sets forth Customer’s exclusive rights and remedies,
and WorkWide’s sole liability in connection with the Subscription Service
Warranty.
12.2 Disclaimer of Warranties
12.2.1 Except for the warranties expressly set out in this Agreement or an End User
Acceptance Form, to the maximum extent permitted by law, WorkWide disclaims
all warranties of any kind, whether express, implied, statutory, written or
otherwise, and specifically disclaims all implied warranties, including warranties
of merchantability, accuracy, title, noninfringement or fitness for a particular
purpose or warranties arising from usage of trade, course of dealing or course of
performance. Without limiting the generality of the foregoing, WorkWide
specifically does not warrant that the Subscription Service, WorkWide Software or
WorkWide Documentation will meet the requirements of the Customer or that
they will be accurate or operate without interruption or error.
12.3 The Parties acknowledge that in entering into this Agreement they do not do so
on the basis of and do not rely on any representation, warranty or other provision
except as expressly provided in this Agreement.
13. THIRD PARTY CLAIM INDEMNITY
13.1 Subject to the provisions of clauses 13.4, WorkWide hereby indemnifies and holds
the Customer harmless from any liabilities, claims, damages, losses and all related
costs and expenses incurred, or suffered by or awarded against the Customer
arising out of any claims instituted by way of court proceedings against the
Customer by a third party arising out of the infringement of any third party’s
copyright, trade secret, trademark, patent, invention, proprietary information or
any other intellectual property rights pursuant to the Customer’s use of the
WorkWide Technology supplied by WorkWide to the Customer under and in terms
of this Agreement.
13.2 WorkWide shall, at its cost, be entitled to defend on behalf of the Customer any
claim arising out of or in connection with the infringement by the Customer of any
intellectual property rights of any third party described in clause 13.1. The
Customer shall promptly notify WorkWide in writing of any allegations of
infringements of which notice has been received by the Customer and the
Customer shall not make any admissions or make any settlement arrangements
without WorkWide’s prior written consent. The Customer shall provide all
reasonable assistance including information, providing evidence, all
documentation necessary as well as access to the WorkWide Technology, to
WorkWide in connection with the defence of the claim. Any relief awarded in
favour of the Customer in respect of any such claim shall be for the benefit of and
shall accrue to WorkWide.
13.3 If a claim has been instituted by way of court proceedings against the Customer
by a third party as contemplated in clause 13.1 and the Customer has notified
WorkWide in accordance with the provisions of clause 13.2 and such third party
claim may cause the Customer’s use of the WorkWide Technology, to be seriously
endangered or disrupted, then WorkWide shall at its own cost and expense and
at its sole discretion:
13.3.1 replace the WorkWide Technology or the relevant portion thereof which
allegedly infringes the third party's intellectual property rights with
compatible functionally equivalent and non-infringing software and/or
associated documentation, as the case may be; or
13.3.2 make the necessary modifications to the WorkWide Technology to avoid
the infringement; or
13.3.3 obtain a licence for the Customer to continue using the offending
WorkWide Technology for the term of this Agreement,
or, if the aforementioned are not available on commercially reasonable term’s in
WorkWide’s judgement, the Customer can terminate the use of the affected
Subscription Services upon 60 (sixty) days written notice and refund the Customer
for any prepaid subscription fees covering the remaining portion of the
Subscription Term for the affected Subscription Service or WorkWide Software
after the date of termination.
13.4 The provisions of these clauses 13.1 to 13.3, both inclusive, shall survive the
termination of this Agreement and states WorkWide’s entire liability and the
Customer’s exclusive remedy for third party claims and actions in relation to any
infringement referred to in clauses 13.1 and 13.2.
13.5 Notwithstanding the provisions contained in clause 13.1, WorkWide shall not be
liable to the Customer, if any infringement of any third party’s intellectual property
rights or misappropriation of any software and/or materials forming the subject
matter of any third party’s claim thereof is based upon:
13.5.1 the use of the WorkWide Technology or any part thereof in connection
with any other product, software or system not delivered by WorkWide
to the Customer;
13.5.2 the use of the WorkWide Technology or any portion thereof in any
manner other than in accordance with the WorkWide Documentation
and its designated use;
13.5.3 modification, alteration, enhancement and/or customisation of the
WorkWide Technology or any part thereof by the Customer, its
employees or any other third party in the manner causing it to become
infringing; or
13.5.4 use of any update or Upgrade of the WorkWide Technology other than
the most current update or upgrade of the WorkWide Technology where
the use of the most current update or upgrade would have avoided the
third party claim of infringement.
14. CUSTOMER INDEMNITY
14.1 The Customer shall be liable, on written demand, for all losses, liabilities, damages
and claims and all related costs and expenses including legal fees and
disbursements, settlement and judgment incurred or suffered by WorkWide
arising from the negligence, intentional act, wilful misconduct, omissions or
vandalism committed by or on behalf of the Customer or any of its employees,
agents and/or contractors in connection with the following:
14.1.1 the tampering, misuse or abuse of the WorkWide Technology by the
Customer or any of the Customer’s Personnel and/or pursuant to any
damage inflicted to the environment and system in which the WorkWide
Technology operates through vandalism;
14.1.2 any addition, modification, alteration or enhancement made to the
WorkWide Technology by the Customer without the prior written
consent of WorkWide;
14.1.3 The Customer’s breach of any of its obligations, warranties,
undertakings or covenants contained in this Agreement;
14.1.4 The Customer’s failure to maintain licence fees in respect of virus
protection software and, as a result thereof, the operating system and
the WorkWide Technology becomes infected; and
14.1.5 damage or destruction of any property belonging to WorkWide.
15. RECIPROCAL INDEMNITY
15.1 Each Party (“the Indemnifying Party”) shall indemnify, defend and hold harmless
the other Party (“the Indemnified Party”), its employees, principals (partners,
shareholders or holders of an ownership interest, as the case may be) and agents,
from and against any third party claims, demands, loss, damage or expense
relating to:
15.1.1 bodily injury or death of any person directly caused solely by the
negligence of the Indemnifying Party, its personnel or agents in
connection with this Agreement;
15.1.2 any fraudulent act or omission of the Indemnifying Party, its affiliates
or personnel in connection with this Agreement; and
15.1.3 a breach of clauses 10 or 11 by the Indemnifying Party.
16. LIMITATION OF LIABILITY
16.1 Subject to the provisions of clause 16.2 and to the extent permitted by law:
16.1.1 the Parties shall not be liable to each other for any indirect, special or
consequential loss or damage including, without limitation, loss of profit,
revenue, anticipated savings, business transactions, goodwill, or other
contracts or loss of data, interruption in use or availability of data,
howsoever arising, whether in delict, breach of contract or otherwise.
The Parties shall be liable to each other for proven direct damages only;
16.1.2 WorkWide’s liability to the Customer in respect of a claim arising from
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 (twelve) month
period immediately preceding the event giving rise to the liability. The
existence of more than one claim shall not enlarge this limit.
16.2 Nothing contained in this clause 16, shall exclude or limit either Party’s liability to
the other in respect of the indemnity undertakings given in clauses 14 and 15.
17. DURATION AND TERMINATION
17.1 Term of Agreement
This Agreement shall commence on the Date of Signature and shall continue in
full force and effect until the Termination Date.
17.2 Term of the Subscription Services
17.2.1 Except as otherwise specified in the End User Acceptance Form and this
Agreement, the term of the Subscription Services will be for the Subscription
Services Term.
17.3 Termination of this Agreement
17.3.1 Either Party (“the Aggrieved Party”) may terminate an End User
Acceptance Form effective immediately upon written notice to the other
Party (“the Defaulting Party”), if the Defaulting Party breaches a
material provision of this Agreement or the applicable End User
Acceptance Form, for the affected Services, and does not cure such
breach within 45 (forty five) days after receiving written notice thereof
from the Aggrieved Party.
17.4
17.4.1 Notwithstanding anything to the contrary contained in this clause 17,
either Party shall be entitled to terminate this Agreement and/or an End
User Acceptance Form immediately if the other Party commits an act of
insolvency, admitting in writing its inability to pay its debts as they
mature, making an assignment for the benefit of creditors generally,
filing or having filed against it by a third party any petition under any
insolvency, or an application for any of the foregoing not being resolved,
or being placed under business rescue proceedings.
17.5 Effect of Termination of the Services
17.5.1 On the Termination Date:
17.5.1.1 the Customer shall stop using the Services related to the
the End User Acceptance Form in question; and
17.5.1.2 the rights granted to the Customer under the the End User
Acceptance Form in questionshall terminate.
17.5.2 Termination of this Agreement or an End User Acceptance Form will not
relieve a Party of obligations imposed upon such Party by statute,
regulation, this Agreement or an End User Acceptance Form prior to the
Termination Date.
17.5.3 Termination of this Agreement shall not affect the rights of the Parties,
including any right to receive payment on pro-rata basis for the Services
duly provided up to the Termination Date, which arose prior to any such
termination and such rights shall survive any such termination.
17.5.4 If the Subscription Services are terminated by:
17.5.4.1 the Customer, in accordance with clause 17.3, then the
Customer may submit to the Reseller a claim for refund of
all prepaid fees for the remaining portion of the
Subscription Term for the terminated Subscription Service
after the Termination Date, which refund shall be paid by
WorkWide to the Customer within 30 (thirty) days following
the receipt of the claim for refund by the Reseller.
17.5.4.2 WorkWide, in accordance with clause 17.3, the Customer
shall pay, within 30 (thirty) days following the Termination
Date, all remaining amounts for the Subscription Term
applicable to the Subscription Services covering the
remainder of the Subscription Term regardless of the due
dates specified in the End User Acceptance Form.
18. FORCE MAJEURE
In the event of any delay in performance by either Party due to any cause arising
from or attributable to acts, events, non-happenings, omissions, accidents or acts
of God beyond the reasonable control of such Party (including, but not limited to,
strikes, lock-outs, civil commotion, riots, war, threat of or preparation for war,
breaking off of diplomatic relations, fire, explosion, sabotage, storm, flood,
earthquake, fog, subsidence, pestilence or epidemic, machinery breakdown,
failure of plant or collapse of structure, request or order of any person having or
appearing to have authority), the Party affected thereby shall be under no liability
for loss or injury suffered by the other Party as a result thereof and the
performance of such obligation by the Party affected thereby shall be suspended
during such delay and upon cessation of the cause of such delay, this Agreement
shall again become fully operative and such affected Party shall immediately
rectify such delay in performance, provided that, if such delay pertains to a
material obligation of the Party affected by such event of force majeure and such
delay shall exceed 120 (one hundred and twenty) days, either Party shall be
entitled to terminate this Agreement by written notice to the other in such case
all services duly provided up to the Termination Date will be paid and any advance
payment for services to be delivered after Termination Date shall be refunded.
19. CONFLICTS WITH END USER ACCEPTANCE FORM
To the extent that the provisions of an End User Acceptance Form may conflict
with or fail to record the provisions of this Agreement, the provisions of the End
User Acceptance Form shall prevail to the extent that it is competent in law for
the End User Acceptance Form to prevail.
20. ARBITRATION
20.1 Save as otherwise expressly provided in this Agreement or a Transaction
Document, should any Party (“the Disputing Party”) contend that, in its opinion,
a claim or a disagreement or a dispute (hereinafter collectively referred to as a
"Dispute") has arisen between the Parties out of, in relation to, or in connection,
with this Agreement or a Transaction Document or in regard to:
20.1.1 the interpretation of;
20.1.2 the effect of;
20.1.3 the Parties' respective rights or obligations under;
20.1.4 a breach of;
20.1.5 the termination of; or
20.1.6 any matter arising out of the termination of,
this Agreement or a Transaction Document that Dispute shall be decided by
arbitration in the manner set out in this clause 20.
20.2 The arbitration shall:
20.2.1 be held in Sandton;
20.2.2 be held, in accordance with the then prevailing Rules of Arbitration of
the Arbitration Foundation of South Africa (“AFSA”);
20.2.3 The award rendered by the arbitrator(s) shall be final and binding upon
all the parties.
20.2.4 Be held in English.
20.3 This clause is severable from the rest of the Agreement and shall therefore remain
in effect even if this Agreement is terminated.
20.4 The law governing this Agreement shall be the laws of the Republic of South
Africa.
20.5 The Court having jurisdiction to enforce any award made under this clause 20
shall be the South Gauteng, High Court.
20.6 Nothing contained in this clause 20 will preclude any Party from applying for, or
obtaining, interim relief on an urgent basis from a court of competent jurisdiction
pending the decision of the arbitrator on the merits of the Dispute.
21. NOTICES
21.1 The Parties choose as their domicilium citandi et executandi their respective
addresses set out in this clause for all purposes arising out of or in connection
with this Agreement at which addresses all the terms and notices arising out of or
in connection with this Agreement, its breach or termination may validly be served
upon or delivered to the Parties.
21.2 For the purpose of this Agreement the Parties' respective addresses shall be:
21.2.1 as regards the Customer, address shall be the address set out in the
End User Acceptance Form; and
21.2.2 as regards WorkWide, address shall be the address the set out in clause
1.1.1 above.
21.3 Any notice given in terms of this Agreement shall be in writing and shall:
21.3.1 if delivered by hand be deemed to have been duly received by the
addressee on the date of delivery;
21.3.2 if posted by prepaid registered post be deemed to have been received
by the addressee on the 8th (eighth) business day following the date of
such posting;
21.4 Notwithstanding anything to the contrary contained in this Agreement, a written
notice or communication actually received by one of the parties from another
including by way of facsimile transmission shall be adequate written notice or
communication to such party.
22. CESSION, DELEGATE AND ASSIGNMENT
None of the Parties may cede their rights nor delegate their obligations without
the prior written consent of any other Parties, which consent will not be
unreasonably withheld.
23. WHOLE AGREEMENT
This Agreement and the End User Acceptance Form constitutes the sole record of
the Agreement between the Parties in relation to the subject matter hereof. The
Parties shall not be bound by any express, tacit or implied term, representation,
warranty, promise or the like not recorded therein.
24. VARIATION
No addition to or variation, consensual cancellation or novation of this Agreement
shall be of any force or effect unless reduced to writing and signed by all the
Parties or their duly authorised representatives.
25. PARTIES NOT AFFECTED BY WAIVER
25.1 The waiver (whether expressed or implied) by any Party of any breach of the
terms or conditions of this Agreement by the other Party shall not prejudice any
remedy of the waiving Party in respect of any continuing or other breach of the
terms and conditions hereof.
25.2 No failure, delay, relaxation or indulgence on the part of either Party in exercising
any power or right conferred on such Party in terms of this Agreement shall
operate as a waiver of such power or right nor shall any single or partial exercise
of any such power or right preclude any other or further exercises thereof or the
exercise of any other power or right under this Agreement.
25.3 The expiry or termination of this Agreement shall not prejudice the rights of any
Party in respect of any antecedent breach or non-performance by the other Party
of any of the terms or conditions hereof.
26. 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 or enforceable means
is reasonably available to achieve the same object as the invalid or unenforceable
provision, to adopt such means by way of variation of this Agreement.
27. BENEFITS
This Agreement will inure for the benefit of and be binding upon the successors
and permitted assigns of the Parties, or any of them.
28. COUNTERPARTS
This Agreement may be executed in separate counterparts, none of which need contain
the signatures of all of the parties, each of which shall be deemed to be an original and all
of which taken together constitute one agreement.
29. WARRANTY OF AUTHORITY
The persons signing this Agreement hereby warrant that they are properly
empowered and duly authorised to sign this Agreement on behalf of the Parties.
30. COSTS
Each Party shall bear its own costs relating to the negotiation, drafting and settling
of this Agreement.
APPENDIX 1 - SUPPORT SERVICES
WorkWide Support Policy
• Support Process
1. Raise your support by sending an e-mail to support@workwidemobile.com
2. You will be issued with a case reference number and one of our team members will be assigned
to your case
3. Calls will be resolved once you have confirmed the solution proposed is valid and has resolved
your query
4. If no response is being given after 5 business days of the issue being resolved by the WorkWide
team, the call will be automatically closed
SEVERITY LEVEL SEVERITY CRITERIA
S1 Critical Service Impact
Issue critically affects the primary business service, major application, or mission critical
system. Customer resources should be available and willing to work on a 24x7 basis with
support teams to resolve the issue. Characteristics of a Severity 1 issue include:
• Business service is not operational
• Production system crashes
• Data integrity at risk
• Production backup and recovery operations fail
S2 Significant Service or Implementation Impact
The business service, major application, or system is seriously affected, or implementation
stopped. No acceptable workaround is available.
S3 Moderate Service Impact
The business service, major application, or system is moderately impacted, no data has
been lost, and the business service, application, or system is still functioning. The issue may
be temporarily circumvented using an available workaround.
S4 No Service Impact
Non-critical issues, general questions or documentation issues
CUSTOMER SUPPORT HOURS OF OPERATION INITIAL RESPONSE GOALS
OFFERING
Continuous Support Severity Continuous Hours S1 = 3 Clock Hours
1 issues
24 hours x 7 days
(Includes public holidays)
Continuous Support Severity Business Hours S2 = 8 Business Hours
2 - 4 issues
8 Hours x 5 days S3 = 16 Business Hours
(Excludes public holidays) S4 = 36 Business Hours
The WorkWide Support Policy governs the Support Services WorkWide will provide for the
Subscription Service. This Policy may be updated by WorkWide from time to time, and is detailed in
the scope below:
• Scope of Support
A resolution to a defect may be determined as a platform issue, or a non-platform issue, as further
clarified below.
The purpose of these Support Services is to resolve defects as a result of platform issues.
A resolution to non-platform issues will not form part of these Support Services and must be ordered
by the Customer from the Reseller under a professional services statement of Work.
Non-Platform Issues:
These Support Services do not include the following,
• Professional Services
• Platform performance related issues
• Configuration services
• Integration Services
• Customization services
• Training
• Administration
• Data Migration
Platform Issues:
These Support Services may include the following:
• General User Queries
• All product features, functions and performance related issues in relation to WorkWide’s
Subscription Services, unrelated to platform performance.
• Non-code related Configuration services
• User Support (Mobile and Desktop)
• All items in relation to WorkWide post the go-live Professional Services
Support Services will not be required to provide any resolution for immaterial defects or defects
resultant of modifications made to the Subscription Services by any person other than a WorkWide
employee, or a person acting directly on behalf of WorkWide.
Customer Responsibilities
• The Customer agrees to receive communications via e-mail, SMS and telephone regarding the
Subscription Services.
• The Customer shall appoint no more than 5 Technical Contacts to engage WorkWide Support
to log calls and resolve technical issues.
• The Customer is responsible for providing the correct information for all Technical Contacts
and ensure that these details remain current and up to date.
• The Customer shall cooperate with WorkWide to resolve issues and enable delivery of the
Subscription Services.