Terms & Conditions
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 2014/118455/07 whose registered office is Culross on Main, Building 2, 34 Culross Road, Bryanston, Gauteng, South Africa T/A WorkWide (“here in after referred to as “WorkWide”).
1.1.2 [Customer name registered], incorporated and registered in the [jurisdiction of incorporation of Customer] with company registration number [Customer’s registration number] whose registered office is at [Customer’s address] (“here in after referred to as the “Customer”).
1.2 The Parties agree as set out below.
2.1 Defined terms
In this Agreement the following words and expressions shall have the following meanings assigned to them:
2.1.1 “The/this Agreement” means the agreement set out in this Master Ordering Agreement including the Product Order 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;
2.1.2 “App User” means a Customer Personnel who is authorised by the Customer to use the application form of the Subscription Services and for whom the Customer has purchased the Subscription Services;
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 this Agreement by the Party signing last in time
2.1.7 “Deliverable” means a deliverable identified in the applicable SOW and that is created by WorkWide for the Customer in performance of a Professional Service;
2.1.8 “Disclosing Party” means the party disclosing the Confidential Information;
2.1.9 “Initial Term” means the initial term of authorised use of the Subscription Service as set forth in a Product Order 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 “Managed Services Term” means the Managed Services term contemplated in clause 184.108.40.206;
2.1.12 “New Intellectual Property” means Intellectual Property Rights in a Deliverable that WorkWide creates for a Customer in the course of performing a Professional Service for a Customer that is identified as “New Intellectual Property” in an SOW, but excluding the WorkWide Core Technology;
2.1.13 “Party/ies” means WorkWide and the Customer, or any one of them as the context may indicate;
2.1.14 “Product Order Form” means a Product Order Form for Professional Services, a Product Order Form for Subscription Services and/or a Product Order Form for Managed Services, or any one of the or combination of them as the context may indicate;
2.1.15 “Product Order Form for Subscription Services” means an ordering document for Subscription Services and Support Services signed by WorkWide and the Customer;
2.1.16 “Product Order Form for Professional Services” means an ordering document for Professional Services signed by WorkWide and the Customer;
2.1.17 “Product Order Form for Managed Services” means an ordering document for Managed Services signed by WorkWide and the Customer;
2.1.18 “Professional Service/s” means professional services provided by WorkWide to the Customer pursuant to an agreed SOW and Product Order Form for Professional Services;
2.1.19 “the Receiving Party” means the party receiving the Confidential Information;
2.1.20 “Renewal Term” means the renewal term of authorised use of the Subscription Service as set out in clause 220.127.116.11 below;
2.1.21 “Services” means the Professional Services, Subscription Services and/or Managed Services, or any one of them or a combination of them as the context may indicate;
2.1.22 “SOW” mean a statement of work that describes the scope of Professional Services signed by WorkWide and the Customer;
2.1.23 “Subscription Services” means the subscription services in respect of the WorkWide Software as ordered by the Customer from WorkWide under a Product Order Form;
2.1.24 “Subscription Term” means the Initial Term and the Renewal Term, or any one of them as the context may indicate;
2.1.25 “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 Annexure A hereto;
2.1.26 “Termination Date” means the date on which a Product Order Form is terminated for any reason whatsoever;
2.1.27 “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;
2.1.28 “User” means an App User and a Web User, or any one of them as the context may indicate;
2.1.29 “Web User” means an individual who is authorised by the Customer to use the Web form of the WorkWide Technology, for whom the Customer has purchased the Subscription Services;
2.1.30 “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 its sole discretion;
2.1.31 “WorkWide Software” means WorkWide’s solutions licensed by WorkWide to the Customer that is deployed on devices operated by or for the Customer to facilitate operation of the Subscription Service;
2.1.32 “WorkWide Technology” means
18.104.22.168 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;
22.214.171.124 Updates, Upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end-user documentation or manuals; and
126.96.36.199 WorkWide’s Intellectual Property Rights as set out in clause 10.1 below.
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;
2.2.14 And where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
3.1 It is recorded that WorkWide is:
3.1.1 The owner of the WorkWide Technology;
3.1.2 Capable of delivering the Professional Services;
3.1.3 Capable of providing the Support Services;
3.1.4 And capable of providing the Managed Services.
3.2 The Customer may retain WorkWide to:
3.2.1 Provide the Customer with the Professional Services;
3.2.2 Provide the Customer with a license, access and use rights to the Subscription Service/s;
3.2.3 Provide the Customer with Support Services;
3.2.3 And provide the Customer with Support.
4. ORDER PROCESS
4.1 Professional Services
4.1.1 In order for WorkWide to render the Professional Services, the Customer must enter into a Product Order Form for Professional Services with WorkWide.
4.1.2 The Product Order Form for Professional Services shall specify, inter alia:
188.8.131.52 The relevant SOW agreed between the Parties which sets out:
184.108.40.206.1 The Professional Services to be rendered under the SOW;
220.127.116.11.2 The duration of the SOW;
18.104.22.168 Any specific termination clauses that may be applicable to the Product Order Form for Professional Services;
22.214.171.124 The Fees payable for the Professional Services in respect of the Product Order Form for Professional Services;
126.96.36.199 The invoicing and payment terms;
188.8.131.52 And any other specific terms that may be applicable to the Product Order Form for Professional Services in question.
4.2 Subscription Services
4.2.1 In order to be provided access to the Subscription Services, the Customer must enter into a Product Order Form for Subscription Services with WorkWide.
4.2.2 A Product Order Form for Subscription Services shall specify, inter alia:
184.108.40.206 The specific Subscription Services to be made available by WorkWide to the Customer;
220.127.116.11 The term of access to the Subscription Services;
18.104.22.168 Any specific termination clauses that may be applicable to the Subscription Services;
22.214.171.124 The Fees and other charges payable for access to the Subscription Services;
126.96.36.199 The invoicing and payment terms;
188.8.131.52 The numbers, types and identifiers of permitted Users;
184.108.40.206 And any other specific terms that may be applicable to the Product Order Form for Subscription Services in question.
4.3 Managed Services
4.3.1 In order for WorkWide to perform and provide the Customer with the Managed Services, the Customer must enter into a Product Order Form for Managed Services with WorkWide.
4.3.2 A Product Order Form for Managed Services shall specify, inter alia:
220.127.116.11 The specific Managed Services to be performed and provided by WorkWide to the Customer;
18.104.22.168 The term of performance and provision of the Managed Services;
22.214.171.124 Any specific termination clauses that may be applicable to the Managed Services;
126.96.36.199 The Fees and other charges payable for performance and provision of the Managed Services;
188.8.131.52 Any special payment terms;
184.108.40.206 And any other specific terms that may be applicable to the Managed Services in question.
4.4 Any contract between the Parties resulting from a Product Order Form shall be on the basis of this Agreement and incorporated herein.
4.5 Absent the execution of a Product Order Form, this Agreement does not, in and of itself, represent a commitment by the Customer to receive the Services from WorkWide or pay WorkWide any Fees.
4.6 This Agreement does not obligate the Customer to order the Services from WorkWide, nor does it obligate WorkWide to accept orders for Services from the Customer, but it, together with the commercial specifications, service specifications and/or technical parameters in any applicable Product Order Form, shall define the rights and obligations of the Customer and WorkWide during the term thereof and will continue to govern such Services until Services have been completed by WorkWide, expired or until the Termination Date.
5. GRANT OF USER RIGHTS
5.1 For each Product Order 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 Services described in that Product Order Form.
5.2 Subject to the terms of this Agreement, WorkWide authorises the Customer access and use of the purchased User access of the Subscription Services during the Subscription Term as set forth in the applicable Product Order Form. The Customer shall not use or otherwise access, or be granted access to, the Subscription Services in a manner that exceeds the Customer’s authorised use as set forth in this Agreement and applicable Product Order Form.
5.3 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 devices operated by or for the Customer solely to facilitate the Customer’s authorised User access to and use of the purchased Subscription Service.
6. USAGE LIMITS
6.1 Subscription Service Usage Limits
In respect of Subscription Services, unless otherwise provided in the applicable Product Order Form:
6.1.1 Subscription Services are purchased as subscriptions per User as set out in a relevant Product Order Form;
6.1.2 Users may be added during a Subscription Term by the Parties concluding a new Product Order Form in respect of such additional Users;
6.1.3 Quantities of Subscription Services purchased as per the Product Order Form cannot be decreased during the relevant Subscription Term;
6.1.4 a quantity in a Product Order Form refers 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
6.1.6 And except as set forth in a Product Order Form, 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.
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 Product Order Form referred to in clause 4.2.2 (“the Original Product Order Form”), WorkWide shall invoice the Customer for:
220.127.116.11 Such numbers, types and identifiers of permitted Users which are in excess of the Contractual Usage Limit set out in the Original Purchase Order Form;
18.104.22.168 The term of the new 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 Original Product Order Form;
22.214.171.124 The Fees and other charges payable for access to the Subscription Services shall be in line with those Fees and charges set out in the Original Product Order Form;
126.96.36.199 The payment terms will be 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.
7.1 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 its 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 its 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 Product Order Form for Professional Services to render a Professional Service 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 Product Order Form for Professional Services required in respect of the installation of a relevant Upgrade by WorkWide and requested by the Customer shall be charged by WorkWide to the Customer.
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 Customer shall:
9.1.1 Be responsible for Customer Personnel’s compliance with this Agreement, WorkWide Documentation, Product Order Form/s and SOWs;
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, Product Order Formand applicable laws and government regulations;
9.1.4 And accept sole responsibility for 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 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 a Product Order 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, Product Order 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;
9.2.14 Or 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.
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 Professional Services
10.2.1 Subject to the provisions of this clause 10, WorkWide shall assign to the Customer any New Intellectual Property in Deliverables upon payment in full by the Customer of all amounts due for the Professional Service under which the Deliverable was created.
10.2.2 If not so assigned, or to the extent any WorkWide Technology is incorporated into a Deliverable, the use of the WorkWide Technology will be governed by the Customer’s associated Product Order Form placed with WorkWide for the Subscription Services. As part of the Customer’s Order Form placed with the WorkWide, WorkWide grants the Customer a non-exclusive, royalty free, non-transferable, non-sublicensable worldwide license to use the Deliverable in connection with the Subscription Service as contemplated in this agreement during the applicable Subscription Term.
10.2.3 Nothing in this agreement shall be deemed to restrict or limit WorkWide’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of it’s employees providing the Professional Services.
10.3 Customer’s Intellectual Property
10.3.1 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”).
10.3.2 The Customer hereby grants to WorkWide a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth in clause 23), non-sub-licensable, worldwide right to use Customer’s Data solely for the purpose of providing the Services.
10.4 The Parties agree that clause 10.1 to 10.3 shall survive the termination of this Agreement for any reason whatsoever.
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;
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 in clause 17.6.
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 11;
11.7.2 Or 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;
11.7.3 Or 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.
12. WARRANTIES AND ACKNOWLEDGEMENTS
12.1 Any warranty offered by WorkWide to the Customer for the Services not provided herein shall be set forth in the Product Order Form.
12.2 Subscription Service Warranty
12.2.1 In the absence of any warranty language in a Product Order Form, WorkWide warrants and represents that during the Subscription Term, the Subscription Services shall materially conform to the WorkWide Documentation (“Subscription Services Warranty”).
12.2.2 To submit a Subscription Services and Warranty Claim, the Customer shall:
188.8.131.52 Reference this clause 12.1;
184.108.40.206 Submit a Support Services request to resolve the non-conformity as provided in Annexure A.
12.2.3 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 WorkWide shall refund to Customer any prepaid Fees covering the remainder of the Subscription Term of the affected Subscription Service after the date of termination.
12.2.4 This clause 12.1 sets forth Customer’s exclusive rights and remedies (and WorkWide’s sole liability) in connection with the Subscription Service Warranty.
12.3 Professional Service Warranty
12.3.1 In the absence of any other warranty language in a SOW, WorkWide warrants and represents that the Professional Services shall be performed in a workman-like and professional manner by such WorkWide employees or contractors as it considers suitably qualified to undertake the work (“Professional Services Warranty”).
12.3.2 Customer’s exclusive remedy for breach of a Professional Services Warranty is to notify WorkWide in writing of the breach within thirty (30) days after performance of the non-conforming Professional Services. Upon receipt of such notice, WorkWide, at its option, shall either use commercially reasonable efforts to re-perform the Professional Services in conformance with the Professional Services Warranty or shall terminate the affected Professional Services and refund to Customer any amounts paid for the affected Professional Services not performed.
12.3.3 This clause 12.3 sets forth Customer’s exclusive rights and remedies (and WorkWide’s sole liability) in connection with the performance of Professional Services.
12.4 Corporate Warranties
12.4.1 Each Party represents and warrants to the other Party that:
220.127.116.11 It will perform its responsibilities under this Agreement in a manner that does not infringe or constitute an infringement or misappropriation of any patent, copyright, trademark, trade secret, intellectual property rights or any other proprietary rights of any third party;
18.104.22.168 It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement;
22.214.171.124 Execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorised by the requisite corporate action on the part of such Party; and
126.96.36.199 The entry into of this Agreement shall not contravene any provision of that Party’s constitutional documents.
12.5 Disclaimer of Warranties
Except for the Warranties expressly set out in this Agreement or a Product Order 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 Services, WorkWide Software, Professional Services, Managed Services, WorkWide Documentation, or Deliverables will meet the requirements of the Customer or that they will be accurate or operate without interruption or error.
12.6 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;
13.3.2 Make the necessary modifications to the WorkWide Technology to avoid the infringement;
13.3.3 Or obtain a licence for the Customer to continue using the offending WorkWide Technology for the term of this Agreement;
13.3.3 Or if the aforementioned are not available on commercially reasonable term’s in WorkWide’s judgement, they will terminate the Customers use of the affected Subscription Services upon 60 (sixty) days written notice to the Customer 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 15.1 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;
13.5.4 Or 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;
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;
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 arising from a specific Product Order Form for Professional Services, whether in contract or delict (including negligence) is limited to 50% of the charges paid by the Customer, in the 12 (twelve) month period immediately preceding the event giving rise to the liability, under the applicable Product Order Form for Professional Services on which the claim relates. The existence of more than one claim shall not enlarge this limit;
16.1.3 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.
16.1.4 WorkWide’s liability to the Customer in respect of a claim arising from Product Order Form for Managed Services, whether in contract or delict (including negligence) is limited to a maximum of the Fees paid by the Customer to WorkWide under the Product Order Form for Managed Services in the 12 (twelve) month period immediately preceding the event giving rise to the liability.
16.2 Nothing contained in this clause 15, shall exclude or limit either Party’s liability to the other in respect of the indemnity undertakings given in clause 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 terminated in accordance with this Agreement.
17.2 Termination of this Agreement
17.2.1 Either Party may terminate this Agreement upon 30 (thirty) days prior written notice to the other Party, if at the time of notice there are no Product Order Forms in effect.
17.2.2 Not withstanding anything to the contrary contained in this clause 17, either Party shall be entitled to terminate this Agreement, and/or a Product Order 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.
17.3 Term of the Subscription Services
17.3.1 Except as otherwise specified in the Product Order Form, the term of the Subscription Services as well as the Support Services will, subject to the provisions of clauses 17.4 and 17.6, be for the Initial Term and automatically renew:
188.8.131.52 For additional periods equal to 90 days (each a “Renewal Term” as contemplated in clause 2.1.18), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Initial Term or Renewal Term, as the case may be;
184.108.40.206 for such Fees as are then equal to WorkWide’s then current list price for the type of Subscription Services and Support Services.
17.4 Term of Professional Services
17.4.1 The term of the Professional Services will, subject to the provisions of clause 17.6, be set out in the Product Order Form for Managed Services and/or the SOW.
17.5 Term of Managed Services
17.5 The term of the Managed Services will, subject to the provisions of clause 17.6, be set out in the Product Order Form for Managed Services.
17.6.1 Either Party (“the Aggrieved Party”) may terminate a Product Order Form effective immediately upon written notice to the other Party (“the Defaulting Party”), if the Defaulting Party materially breaches a material obligation under this Agreement or the applicable Product Order Formfor the affected Services and does not cure the breach within 45 (forty five) days after receiving written notice thereof from the Aggrieved Party.
17.6.2 Professional Services, Subscription Services and Managed Services are all separately ordered and are not required for one another. As such, a breach by the Defaulting Party of it’s obligations with respect to Professional Services, Subscription Services or Managed Services shall not by itself constitute a breach by the Defaulting Party of it’s obligations with respect to any other Services ordered by the Customer from WorkWide, notwithstanding such Services are ordered by the Customer on the same Product Order Form.
17.7 Effect of Termination of the Services
17.7.1 On the Termination Date of a Product Order Form:
220.127.116.11 The Customer shall stop using the Services related to the Product Order Form in question;
18.104.22.168 WorkWide shall stop providing the Services, in respect of the Product Order Form in question, to the Customer; and
22.214.171.124 The rights granted to the Customer under the Product Order Form shall terminate.
17.7.2 Termination of this Agreement or a Product Order Form will not relieve a Party of obligations imposed upon such Party by statute or regulation or by this Agreement or a Product Order Form prior to the Termination Date.
17.7.3 Termination of this Agreement or a Product Order Form 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.
17.7.4 If the Subscription Services or Managed Services are terminated by:
126.96.36.199 the Customer, due to a breach by WorkWide, then the Customer may submit to WorkWide a claim for refund of all prepaid fees for the remaining portion of the Subscription Term or Managed Services Terms, as the case may be, for the terminated Subscription Services or Managed Services, as the case may be, after the Termination Date, which refund shall be paid by WorkWide to the Customer within 30 (thirty) days following the Termination Date.
188.8.131.52 WorkWide, due to a breach by the Customer, the Customer shall pay within 30 (thirty) days following the Termination Date all remaining amounts for the Subscription Term or Managed Services Term, as the case may be, applicable to the Subscription Services or Managed Services, as the case may be, covering the remainder of the Subscription Term or the Managed Services Term, as the case may be, regardless of the due dates specified in the Product Order Form.
17.8 Data Portability
17.8.1 Following the end of the Subscription Term, the Customer shall have thirty (30) days to request a copy of the Customer Data from WorkWide and, if requested, WorkWide shall, subject to clause 17.8.3 below, use commercially reasonable efforts to provide a copy of that Customer Data to the Customer in it’s standard database export format, excluding the WorkWide Technology.
17.8.2 After such 30 (thirty) day period referred to in clause 17.8.1, WorkWide shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, have the right to delete all Customer Data in its systems or otherwise in its possession or under its control and delete Customer’s instances of the Subscription Service.
17.8.3 If WorkWide, determines in its sole discretion that the data output is not routine, the Customer may solicit WorkWide through a Product Order Form for Professional Services to render a Professional Service to export or download the Customer’s Data on a time and material basis.
18. FEES AND PAYMENT THEREOF
18.1 In consideration for the provision of the Services as contemplated in a Product Order Form, WorkWide shall charge the Customer the Fees set out in the Product Order Form.
18.2 Except as otherwise specified herein, or in the relevant Product Order Form payment obligations are non-cancellable, and Fees paid are non-refundable.
18.3 Any Fees payable during a Subscription Term shall escalate annually as set out in the relevant Product Order Form.
18.4 Any Fees payable during a Managed Services Term shall escalate annually as set out in the relevant Product Order Form for Managed Services.
18.5 The Fees do not include any Taxes and the Customer shall be responsible for paying all Taxes associated with the the Customer’s purchase of the Services.
18.6 WorkWide shall invoice the Customer in accordance with the terms set out in the relevant Product Order Form.
18.7 Unless otherwise set in a Product Order Form the Customer shall make payment of the invoices referred to in clause 18.6 above within 14 days of receipt of the relevant invoice.
18.8 All payments in terms of or arising out of this Agreement shall be made free of set-off, bank exchange, commission, withholding or any other deduction to the Party entitled thereto.
18.9 The Customer shall not have the right to defer, adjust or withhold any payment due to WorkWide in terms of or arising out of this Agreement or to obtain deferment of judgment for such amount or any execution of such judgment by reason of any set-off or counterclaim of whatsoever nature and howsoever arising.
18.10 All amounts due by one Party to the other in terms of or arising out of this Agreement will, unless paid on due date, bear interest from the due date to date of payment, both days inclusive. Such interest shall be:
18.10.1 Calculated at the 1,5% (one and a half percent) per month;
18.10.2 Capitalised monthly in arrears on the balance due.
18.11 If any amount owing by the Customer under this Agreement is 30 or more days overdue, WorkWide may, without limiting it’s other rights and remedies in terms of this Agreement, suspend Services until such amounts are paid in full.
19. 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 30 (thirty) 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.
20. CONFLICTS WITH PRODUCT ORDER FORMS
To the extent that the provisions of a Product Order Form may conflict with or fail to record the provisions of this Agreement, the provisions of the Product Order Form shall prevail to the extent that it is competent in law for the Product Order Form to prevail.
21.1 Save as otherwise expressly provided in this Agreement or a Product Order Form, 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 Product Order Form or in regard to:
21.1.1 The interpretation of;
21.1.2 The effect of;
21.1.3 The Parties’ respective rights or obligations under;
21.1.4 A breach of;
21.1.5 The termination of;
21.1.6 Or any matter arising out of the termination of, this Agreement or a Product Order Form that Dispute shall be decided by arbitration in the manner set out in this clause 21.
21.2 The arbitration shall:
21.2.1 Be held in Sandton;
21.2.2 Be held, in accordance with the then prevailing Rules of Arbitration of the Arbitration Foundation of South Africa (“AFSA”);
21.2.3 The award rendered by the arbitrator(s) shall be final and binding upon all the parties.
21.2.4 Be held in English.
21.3 This clause is severable from the rest of the Agreement and shall therefore remain in effect even if this Agreement is terminated.
21.4 The law governing this Agreement shall be the laws of the Republic of South Africa.
21.5 The Court having jurisdiction to enforce any award made under this clause 21 shall be the South Gauteng, High Court.
21.6 Nothing contained in this clause 21 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.
22.1 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.
22.2 Any notice given in terms of this Agreement shall be in writing and shall:
22.2.1 As regards the Customer, address shall be the address set out in clause 1.1.2 above;
22.2.2 And as regards WorkWide, address shall be the address the set out in clause 1.1.1 above.
22.3 Any notice given in terms of this Agreement shall be in writing and shall:
22.3.1 if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
22.3.2 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;
22.4 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.
23. 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.
24. WHOLE AGREEMENT
This Agreement 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 herein.
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.
26. PARTIES NOT AFFECTED BY WAIVER
26.1 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.
26.2 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.
26.3 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.
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.
This Agreement will inure for the benefit of and be binding upon the successors and permitted assigns of the Parties, or any of them.
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;
30. 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.
Each Party shall bear its own costs relating to the negotiation, drafting and settling of this Agreement.