Master Subscription
Agreement
1
Introduction
1.1
This Agreement is entered into between Data Prime and the customer
identified on the Order Form (“you”) and sets out the terms and conditions
which govern the use of the Online Services and/or the installation and use of
the Software for the Term.
1.2
YOUR ATTENTION IS SPECIFICALLY DRAWN TO:
1.2.1
THE
FACT THAT YOUR MINIMUM COMMITMENT IN TERMS OF THIS AGREEMENT IS FOR A PERIOD OF
12 MONTHS FROM THE EFFECTIVE DATE, IRRESPECTIVE OF WHETHER YOU USE THE ONLINE
SERVICES OR THE SOFTWARE DURING THIS PERIOD OR NOT; AND
1.2.2
CLAUSES 12 AND 13 THAT LIMIT THE RISK AND LIABILITY OF, AND IMPOSE AN OBLIGATION ON YOU
TO INDEMNIFY, DATA PRIME AND OTHER PARTIES.
1.3
By accepting this Agreement, either by clicking a box indicating your
acceptance, signing an Order Form that references this Agreement or by downloading
or installing the Software or accessing the Online Services, you confirm that
you have read, understand and agree to this Agreement.
In the event that you are entering into this Agreement in a representative
capacity on behalf of a company or other entity, you warrant to Data Prime that
this Agreement has been duly authorised, and
constitutes valid and binding obligations in accordance with the terms of this
Agreement, in which case “you” and “your” shall refer to such company or
entity.
1.4
If you do not have such authority or you do not agree
with these terms and conditions, you must not accept this Agreement and may not
use the Software or access the Online Services.
2.1
“Business Day” refers to any day which is not a Saturday, Sunday or official public holiday in the Republic of South
Africa.
2.2
“Companies Act” refer to the Companies Act, 71 of 2008.
2.3
“Data Prime” refers to Data Prime Solutions Proprietary Limited, a
private company incorporated in accordance with the laws of the Republic of
South Africa under registration number 2007/019346/07.
2.4
“Documentation” refers to the program specifications set forth in the
Software, all help files and release notes, guides or
manuals, including any corrections and updates thereto, provided by Data Prime
to you under this Agreement or published by Data Prime in relation to the Software
and/or the Online Services.
2.5
“End User Licence Agreement” refers
to the terms and conditions that are specific to the use of Software, as may be
amended from time to time. A copy of which can be found at http://www.draftworx.com/eula.html.
2.6
“Effective Date” refers to the date on the written confirmation from
Data Prime that the Order Form has been accepted with a link to download the
Software and/or to access the Online Services.
2.7
“Licence Key” refers to the key required to install the Software on a
computer or to enable registration and use of the Online Services.
2.8
“Modules” refers to additional software modules developed for use with
the Software and/or the Online Services.
2.9
“Online Services” refers to the Data Prime hosted online services and
Modules specified in the Order Form.
2.10
“Order Form” refers to the order form and quotation to which this
Agreement is attached and/or electronically agreed upon, detailing the Online
Services and/or Software subscribed for and the Subscription Fee.
2.11
“Personal Information” means Personal Information as defined in section
1 of the Protection
of Personal Information Act, 4 of 2012.
2.12
“Privacy Policy” refers to Data Prime’s privacy policy, a copy of
which is available at https://cloud.draftworx.com/#/privacyPolicy.
2.13
“Software” refers to the executable code version (the desktop version)
of the proprietary software developed and/or licensed by Data Prime, as
amended, updated and/or enhanced from time to time, which, if specified in the
Order Form, Data Prime will provide to you for installation on your device and
will include any additional Modules selected on the Order Form.
2.14
“Subscription” refers to the right to use the Software and/or to access
and use the Online Services for the Term, subject to the restrictions contained
in this Agreement.
2.15
“Subscription Fee” means the fee payable to Data Prime determined in
accordance with clause 8.1.
2.16
“Term” refers to the duration of the Subscription, which will commence
on the Effective Date or the date of renewal of your subscription in terms of clause 3, as the case may be, and continue for a period of 12
calendar months therefrom.
2.17
“This/the Agreement” refers to this master subscription agreement.
2.18
“User” refers to an individual authorised by you to use the Software
and/or the Online Services. For example, users may include your contractors, consultants or employees.
3
Duration
and Renewal
3.1
Your Subscription will commence on the Effective Date and will, unless
this Agreement is terminated earlier in accordance with its terms, continue for
the Term and thereafter will be automatically renewed for further periods of 12
months:
3.1.1
at the price charged by Data Prime at that time; and
3.1.2
on the terms and conditions
contained herein, as may be amended by Data Prime from time to time.
3.2
If you do not intend renewing your Subscription you are required to
inform Data Prime of that fact in writing at least 30 days before the expiry of
the Term. If Data Prime does not receive such notification, Data Prime will
issue an invoice for the new subscription fee and debit your account
accordingly.
4
Subscriptions
and Use
4.1
Access to the Software and/or the Online Services is purchased as, and
provided in the form of, a Subscription. Your Subscription grants the number of
Users stipulated in the Order Form, and such additional Users as may be added
to the Subscription from time to time in terms of clause 4.3, a limited, non-exclusive and
non-transferable right to use the Software and/or access and use the Online
Services, as the case may be, for the Term and in accordance with this
Agreement.
4.2
Each User will be issued with a Licence Key, which will expire at the
end of the Term. You undertake and agree not to attempt to crack or otherwise
alter a Licence Key
4.4.1
the Software and/or the Online Services may only be accessed or used by registered
Users, the number of which will not exceed the number of Users stipulated in
the Order Form or as may be added to the Subscription from time to time in
terms of clause 4.3;
4.4.2
the Software may not be shared between Users or between Users and third parties;
4.4.3
Users may only use and/or access any Modules if such Modules are
specified in the Order Form and have been paid for;
4.4.4
a User’s password may not be shared with any
other individual;
4.4.5
a User identification may only be reassigned to
a new individual replacing the one who will no longer use the Software and/or
Online Services.
4.5
In the event that you exceed the usage limits in clause 4.4, Data Prime reserves the right
to charge you for additional Users and/or Modules and, at Data Prime’s request,
you agree to execute a new order form, and pay, for such additional Users
and/or Modules, as the case may be.
5
Registration
5.1
Software
In order to enable the use of the Software,
you will be required to:
5.1.1
install the Software on your device, complete the prompted installation
process and accept the End User Licence Agreement; and
5.1.2
follow the registration wizard, entering the unique licence key for the
Software and entering your or your company’s registered name.
5.2
Online Services
5.2.1
When you apply to use the Online Services, you will be required to
complete a customer information form or be redirected to a page requesting you
to submit certain of your Personal Information, such as your name, address and
registration or identity number. You confirm that all of
the information that you provide for this purpose is accurate and complete in
all respects and you undertake to notify Data Prime of any changes to such
information timeously.
5.2.2
Once your application has been successfully processed you will be allocated
a code and be requested to set up your account and/or an account for each User.
5.2.3
An account is for your personal use or that of the User concerned only
and you and/or any User(s) will not, under any circumstances:
5.2.3.1
share
your/his/her account login details with any third party; or
5.2.3.2
permit
any third party to gain access to your/his/her account.
5.2.4
If the security or confidentiality of your or a User’s
account is compromised or you believe that a third party has gained
unauthorised access to the account, you will notify Data Prime in writing and ensure
that the password for that account is changed immediately.
6
Your
Responsibilities
During the Term, you will:
6.1
use the Software in accordance with, and ensure your Users’
compliance with, this Agreement, the End User Licence Agreement, Documentation
and the Order Form(s);
6.2
not use the Software or the Online Services to prepare, approve,
disseminate or publish any financial statements which fail in a material way to
comply with the requirements of the Companies Act or are materially false or misleading;
6.3
not require or cause Data Prime, on your behalf, to alter any annual
financial statements compiled using the Software or the Online Services in such
a manner that, following such alteration, those statements fail in a material
way to comply with the requirements of the Companies Act or are materially
false or misleading;
6.4
prevent unauthorised use and/or access to the Software and/or the Online
Services and notify Data Prime of any such use or access;
6.5
not make the Software and/or the Online Services available to anyone
other than your Users;
6.6
not sell, resell, sublicence, distribute, distribute
or lease the Software or circumvent, or assist third parties to circumvent, the
usage limits in clause 4.4;
6.7
not attempt to gain unauthorised access to the Software, the Online
Services or related systems or networks;
6.8
not copy the Software or any part, function or feature thereof;
6.9
not circumvent, remove, alter, deactivate, degrade
or thwart any of the protections in respect of the Software or the Online
Services; and
6.10
not use any code, software or device to
interfere or attempt to manipulate the Software, the Online Services or any
part, function or feature thereof and/or interfere with its proper working,
including by infecting the Software or the Online Services with any virus or
malware.
7.1
Subject to your payment of all Subscription Fees and compliance with
this Agreement and the End User Licence Agreement, Data Prime will make the
Software and/or the Online Services available to you and your User(s) for the
duration of the Term.
7.2
Data Prime will use its reasonable commercial endeavours to ensure that
the Software and/or the Online Services are available 24 hours a day, 7 days a
week, save for planned downtime (of which you will be given advance notice) and
downtime caused by circumstances beyond Data Prime’s control, including but not
limited to failures or delays caused by third parties such as your internet
service provider, failures or incompatibility of your hardware, software
conflicts, malware or viruses.
7.3
Standard support services will be provided to you at no additional
charge. These services are limited to product support services. Advanced
support services, comprising those remote services which you may require over
and above the standard support services, will only be provided if specified in
the Order Form or if specifically agreed to by Data Prime in writing and may
attract an additional fee.
8
Subscription
Fee and Payment
8.2
The Subscription Fee is a once off non-refundable fee payable for the
Licence Key to access the Software and/or the Online Services and is not linked
to your usage over the Term. YOU WILL NOT BE ENTITLED TO A FULL OR PARTIAL
REFUND OF THE SUBSCRIPTION FEE IN THE EVENT THAT THIS AGREEMENT IS TERMINATED
BEFORE THE EXPIRY OF THE TERM.
8.3
The Subscription Fee is payable in advance on or before the Effective
Date.
8.4
You are responsible for providing Data Prime with complete and accurate
billing information and forthwith notifying Data Prime of any changes thereto
in writing.
9.1
The Software and the Online Services are proprietary to Data Prime.
Except as provided for in this Agreement and the End User Licence Agreement, no
licence or any other right is granted to you in respect of the Software and the
Online Services and you will not, and will not permit any third party to,
archive, download (other than through caching necessary for personal use),
reproduce, distribute, modify, display, create derivative works from the
Software and the Online Services without Data Prime’s prior written consent.
9.2
You acknowledge and agree, as between you and Data Prime:
9.2.1
All intellectual property rights in and to the Software and the Online Services,
including all source information, data and software code, vest in Data Prime.
9.2.2
You will not, and shall not permit or assist any third party, to
infringe Data Prime’s rights in and to the Software and the Online Services.
9.2.3
You will not challenge, question or dispute
Data Prime’s right, title and interest to any of its intellectual property
rights in and to the Software and/or the Online Services, nor the ownership
thereof or assist any other person or entity to do so.
10
Personal
Information
10.1
Data Prime receives, processes
and secures your Personal Information in accordance with its Privacy Policy.
You hereby confirm that, as the party providing Personal Information, you agree
to the terms of the Privacy Policy and undertake to be bound by the provisions thereof.
10.2
You consent to the processing
of your Personal Information by Data Prime for purposes of providing the
Software and/or the Online Services in terms of this Agreement.
10.3
Data Prime does not and will not assume any
obligations with respect to your Personal Information or the use of your
Personal Information other than as set out in this Agreement, the Privacy
Policy or in terms of any applicable law.
10.4
You acknowledge and agree that Data Prime may, from time to time,
collect data pertaining to your use of the Subscription, including the number
of Users and the IP addresses or other addresses of any devices on which the
Software is used or the Online Services are accessed.
11.1
Without derogating from Data Prime’s right to terminate this Agreement, Data
Prime will be entitled, on written notice, to suspend your Subscription and all
Licence Keys issued to you for any reason and for such period as Data Prime in
its sole discretion determines to be appropriate, if you engage in any
activities which, in Data Prime’s sole discretion,
would constitute a
breach of this Agreement, contravention of any law and/or a violation and/or
infringement of any rights of a third party provided thatour Subscription and Licence Keys shall be reinstated
upon the remedy of your breach, contravention and/or violation or infringement,
as the case may be.
11.2
Should you breach any provision of this Agreement and fail to remedy
such breach within 5 (five) Business Days from the date of written notice from
Data Prime calling upon you to do so, Data Prime shall have the right:
11.2.1
to cancel this Agreement; or
11.2.2
to take whatever action may
be necessary to enforce its rights under this Agreement, other than to cancel
this Agreement,
and in either event to claim such damages as it may have suffered as a result of such breach of contract together with all
legal costs on the attorney and own client scale.
11.3
Upon the termination of this Agreement:
11.3.1
your Personal Information will be deleted by Data Prime save to the
extent that Data Prime is required or permitted to retain such information in
accordance with any applicable laws;
11.3.2
you will delete the Software and any other Data Prime applications which
you have downloaded.
11.4
The termination of this Agreement, for whatever reason, shall not affect
the rights of Data Prime which accrued before the termination of this Agreement
or specifically or by their nature survive the termination of this Agreement.
11.5
Clauses 9, 12 and 13 of this Agreement will survive
the termination of this Agreement for any reason whatsoever.
12.1
The Software, Online Services and its content are provided "as
is" without any warranties, including but not limited to express or
implied warranties of merchantability, fitness for a particular purpose,
compatibility of the Online Services with your software or devices, title and non-infringement or about the suitability,
reliability or accuracy of the Online Services and its content.
12.2
Whilst Data Prime uses all reasonable commercial endeavours to ensure
that the Software and/or the content of the Online Services is accurate and
lawful, such content may contain inaccuracies or errors or be unlawful. Data
Prime accepts no responsibility or liability for any inaccurate, unlawful or erroneous content on the
Software or the Online Services.
You
absolve Data Prime and its employees, officers, directors, contractors and
agents (“the Indemnified Parties”) from all liability and indemnify them against
any damages or loss of whatever nature (including but not limited to
consequential damages or special damages) arising directly or indirectly from
your breach of this Agreement and/or your use of the Software and/or the Online
Services whatever the cause/causes are (including any negligent or grossly
negligent act or omission by any of the Indemnified Parties), save only for the
exclusion of intentional action on the part of the Indemnified Parties.
14.1
Marketing: Data Prime may use your information to contact you about promotions
and services. You are entitled, at any stage, to opt out of these
communications by clicking on the "Unsubscribe" option on the
communication.
14.2
Applicable Law and Jurisdiction: This
Agreement shall be governed by and interpreted in accordance with South African
law. You agree that any dispute arising out of this Agreement or the
interpretation thereof, both while in force and after its termination, or any
claim for payment howsoever arising shall be submitted to and determined by a
court of law in the Republic of South Africa having jurisdiction.
14.3
Whole Agreement: This Agreement, the Order Form, the End User Licence Agreement
and any debit authorisation form signed by you authorising Data Prime to debit
your account with the Subscription Fee constitute the whole agreement between Data
Prime and you with respect to your Subscription. No agreement, representations or warranties, other than those set out in these
documents will binding on the parties.
14.4
Changes to this
Agreement: Data Prime may, from time to time,
and in its sole discretion, change the terms of this Agreement. Such changes will
be effected by way of publication thereof on its
website (www.draftworx.com).
14.5
Assignment: This Agreement is personal to you and shall not be assigned (whether voluntarily
or involuntarily) or otherwise transferred in whole or in part by you without
the prior written consent of Data Prime. Notwithstanding the aforegoing, Data Prime will be entitled to assign this
Agreement to a third party without notice to you.
14.6
Waiver: No latitude, extension of time or other indulgence which may be given or
allowed by Data Prime to you in respect of the performance of any obligation or
enforcement of any right arising from this Agreement and no single or partial
exercise of any right by Data Prime shall under any circumstances be construed
to be an implied consent by Data Prime or operate as a waiver or a novation of,
or otherwise affect any of Data Prime’s rights in terms of or arising from this
Agreement or estop Data Prime from enforcing, at any time and without notice,
strict and punctual compliance with each and every provision or term of this
Agreement.
14.7
Notices: You choose the physical address and
e-mail address reflected on the Order Form as your domicilium citandi et executandi at which all notices, legal
processes and other communications must be delivered for the purposes of this
Agreement.
All notices, legal processes
and other communications must be delivered to Data Prime for the purposes of
this Agreement by hand or e-mail to the following address:
Data
Prime Solutions Proprietary Limited
Stoneridge Office Park
8 Greenstone Boulevard
Modderfontein
Gauteng
South Africa
E-mail:
info@draftworx.com
Signed at _________________ on this _________________ day of
_________________ 20___
________________________________________
Signature
________________________________________
Representative name
________________________________________
ID number
________________________________________
Capacity
220713AP Draftworx Master Subscription Agreement