Contents
1. DEFINITIONS
AND INTERPRETATIONS
6. SUPPORT SERVICE AND UPDATES
11. CONFIDENTIIALITY OBLIGATIONS11
14. ADDRESSES FOR LEGAL PROCESS AND NOTICES
PARTIES
i.
The
parties to this Agreement are:
iii.
Apple iOS User, who has opted to download and use
the Convo mobile application.
WHEREAS
A.
IOS is
the proprietor and licensor of the Software Product.
B.
The
End User wishes to obtain a licence to use the Software Product belonging to IOS.
C.
Accordingly,
the Parties wish
to conclude this Agreement whereby the End User will be granted a licence to
use the Software Product published by IOS under the terms and conditions set
out in this Agreement.
1.
DEFINITIONS AND INTERPRETATIONS
1.1.
Definitions
For the purposes of this Agreement and the preamble
above, unless the context requires otherwise:
1.1.1.
Agreement means this end
user licence agreement concluded between IOS and the End User in terms of which,
inter alia, IOS grants the End User a licence to use the Software
Product, and any amendment thereto;
1.1.2.
Business Day means
a day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
1.1.3.
Confidential Information shall include, without
limitation and subject to the provisions of clause10, any
information of a confidential and/or commercially sensitive nature, howsoever
obtained or received and whether or not marked confidential, including any
technical, commercial, financial or scientific information, know-how, trade
secrets, processes, marketing and business information, customer and supplier
information, pricing information and/or any other information or material of
whatever description or nature proprietary to a party, whether in written,
oral, magnetic, machine-readable or other format;
1.1.4.
Copies means copies
of Confidential Information including any document, electronic file, note,
extract, analysis or any other way of representing or recording and recalling
information which contains, reflects or is derived from Confidential Information;
1.1.5.
Duration means the
duration set out in clause 2 of
this Agreement;
1.1.6.
Intellectual Property means
intellectual property including, without limitation, Trade Marks, service
marks, trade names, domain names, designs, patents, utility models and like
rights, in each case whether registered or unregistered and including
applications for the grant of any of the aforementioned; copyright, including,
without limitation, rights in computer programs and data bases and moral
rights, inventions, designs, know-how, confidential information, trade secrets,
and all rights in and to any of the aforementioned, and all rights or forms of
protection having equivalent or similar effect to any of the aforementioned,
which may subsist in any country in the world.
1.1.7.
Parties means IOS
and the End User(s), as the parties to this Agreement, and Party means any one
of them as the context may require;
1.1.8.
Signature date means
the last date on which this Agreement is signed by the last of the Parties, the
other Parties having already signed this Agreement;
1.1.9.
Software Product means the
computer software program Convo Team Chat Software as a Service platform,
published by IOS and licenced to the End User for use, which may or may not be programmed
in accordance with the instructions of the End User;
1.1.10.
Subscription Fee means
the annual or monthly fee, as the case may be, payable by the End User to IOS
for the use of IOS’s Software Product in terms of clause 4.1;
1.1.11.
Trademarks means
all trademarks, service marks, designs, markings, logos, or trade names as may
be designated by IOS from time to time and any other brand designation used by
IOS in connection with its products and services; and
1.1.12.
Updates means corrections
to inherent errors in the Software Product and any changes or improvements made
to the Software Product by IOS after the Signature Date, which result in the
addition of functions or features not present in the Software Product; and
In addition to the definitions in clause 1.1,
unless the clause requires otherwise:
1.2.1.
the
singular includes the plural and vice versa;
1.2.2.
a reference to any one gender whether
masculine or feminine or neuter includes the other two;
1.2.3.
any
reference to a natural person includes an artificial person and vice versa;
1.2.4.
references
to a statutory provision include any subordinate legislation made from time to
time under that provision and references to a statutory provision include that
provision as from time to time modified or re-enacted as far as such
modification or re-enactment applies, or is capable of applying to this
Agreement or any transaction entered into in accordance with this Agreement;
1.2.5.
references
in this Agreement to clauses and sub-clauses are to clauses and
sub-clauses of this Agreement;
1.2.6.
no
rule of construction shall be applied to the disadvantage of a Party to this
Agreement because that Party was responsible for or participated in the
preparation of this Agreement or any part of it;
1.2.7.
unless
otherwise provided, any number of days prescribed shall be determined by
excluding the first and including the last day or, where the last day falls on
a day that is not a Business Day, the next succeeding Business Day; and
1.3.
all
the headings and subheadings in this Agreement are for convenience only and are
not to be taken into account for the purposes of
interpreting it.
2.1.
This
Agreement will commence on the Signature Date and will remain in force until
terminated in terms of this clause 2.
2.2.
Either
Party may terminate this Agreement upon 30 (thirty) days’ prior written notice
to the other Party.
2.3.
Either
Party may terminate this Agreement immediately if the other Party breaches a term
of this Agreement, and the breaching Party fails to cure the breach within 7
(seven) Business Days of receipt of written notice thereof.
3.2.
Nothing
in this Agreement prevents IOS from granting other End Users a licence to use
its Software Product.
3.3.
Except
as expressly permitted in this Agreement, the End User shall not:
3.3.1.
sell,
rent, lease, sub-license, lend, redistribute, reuse or exploit the Software
Product; including the software text, graphics, video, audio codes, user
interface or Trade Marks;
3.3.2.
reverse
engineer, decompile or disassemble, attempt to derive the source code of,
modify or create derivative works of the Software Product; or
3.3.3.
wilfully
remove or obscure any IOS patent, copyright, Trade Mark,
brand name or proprietary rights notices contained in or affixed to the
Software Product.
3.4.
Any
attempt by the End User to perform the prohibited actions listed in clause 3.3 above, is a violation of the Intellectual Property
rights of IOS.
3.5.
The
terms of this Agreement will govern any Updates provided by IOS that supplement
the original software, unless such update is accompanied by a separate license,
in which case the terms of that license will govern.
4.1 Convo
Team Chat is meant to be used as a professional business tool and not as an
open social media instant messaging platform. To this extent, there shall be
zero tolerance for the posting, sharing, uploading or transmission of
objectionable content of any kind.
4.2 A
zero tolerance policy for content containing offense material is enforced.
Themes not allowed on this platform include the following:
a.
Violence / Bullying / Abuse
b.
Hate speech
c.
Nudity
d.
Drugs
e.
Sex
f.
Gender bias
4.3 Any
user or organisation that fails to comply with this clause will be blocked from
using Convo and will forfeit any subscriptions already paid and existing data.
An appeal process is in place, which can be referred to under Dispute Resolution,
section 13.
5.2.
Access
to the Software Product will only be given upon receipt of full payment of the
Subscription Fee by the End User to IOS, unless otherwise agreed.
5.3.
All Subscription
Fees payments made by the End User to IOS are payable in full without reduction
pursuant to taxes or tariffs. The End User shall be liable for, and will
indemnify IOS against, any such taxes and tariffs assessed against IOS based on
the use of the Software Product by the End User.
5.4.
The
End User shall pay IOS the Subscription Fee, without deduction or set off, by
electronic funds transfer in immediately available funds into a bank account,
which shall be designated by IOS by written notice to the End User.
6.
SUPPORT SERVICE AND UPDATES
6.1.
IOS
shall have no obligation to provide the End User with technical support where
faults arise from:
6.1.1.
misuse,
incorrect use of or damage to the Software Product from whatever cause (other
than any act or omission by IOS), including failure or fluctuation of
electrical power;
6.1.2.
incorrect
or unclear programming specifications for the Software Product;
6.1.3.
failure
to maintain the necessary environmental conditions for use of the Software
Product; and
6.1.4.
any
breach of the End User of this Agreement.
6.3.
Subject
to clause 5.2, IOS will only provide the End User with
reasonable support services during ordinary business hours as and when such
services are required. Should the End
User require support as a consequence of no defect in
the Software Product, IOS shall be entitled to charge a fee for its support
services.
6.4.
IOS
may from time to time develop Updates to the Software Product and when the
Updates are ready for release, IOS will notify the End User.
If the
End User sells or disposes of any infrastructure which contains access to the
Software Product, the End User will ensure that all copies of the Software
Product have been deleted. The End User will, upon written request of IOS, provide
IOS with proof of such deletion.
8.1.
The
End User understands and accepts the risks associated with installing and use
of the Software Product that may not be compatible with the End User’s computer
equipment.
8.2.
The
End User further accepts such risks including but not limited to failure of or
damage to hardware, software, communication lines or systems and/or other
computer equipment.
8.3.
In no
event will IOS be liable to the End User or a third party in respect of
anything which, apart from this provision, may constitute a breach of this
Agreement arising by reason of force majeure and circumstances beyond the
direct control of IOS which shall include, but not be limited to, any failure
related to the incorrect processing of date data, acts of God, civil commotion,
acts of local government or parliamentary authority, breakdown of power
supplies or of communications lines, failure of electronic or mechanical
equipment or communications lines (including telephone, cable and internet),
unauthorized access, viruses, theft, operator errors, severe or extraordinary
weather (flood, earthquake), fire, war, insurrection, terrorist act, riot, labour
dispute and other labour problems, accident, emergency or action of government.
8.4.
IOS
expressly disclaims any liability with respect to the damage listed in this
clause 7 and the End User agrees to fully indemnify IOS
from any and all damages, liability, losses, costs and expenses that may arise.
8.5.
In no
event will IOS be liable to the End User for any indirect, special
or consequential loss or damages whatsoever including but not limited to
damages for loss of profits, loss of data any other commercial loss or damages.
8.6.
The
maximum liability of IOS, whether in contract or delict, including negligence,
for all breaches of this Agreement and all other events, acts, claims,
omissions and causes of action of whatever nature and however arising, relating
to or arising directly or indirectly from this Agreement of the Software
Product, shall be limited to the value of the Subscription Fee received by IOS
in the year that such liability arises.
8.7.
Nothing
in this Agreement shall limit or exclude the liability of IOS for any matter to
the extent to which such liability cannot be lawfully excluded or limited.
9.1.
Warranty
Disclaimer
9.1.1.
Except
as expressly provided in this Agreement, IOS gives no representation,
undertaking or warranties, express or implied, by operation of law or
otherwise.
9.1.2.
The End
User acknowledges that the Software Product in general is not error-free and
agrees that the existence of such errors shall not constitute a breach of this Agreement.
9.1.4.
Clause
8.1.3 shall be subject to the provision that such
non-compliance has not been caused by any modification, variation or addition
to the Software Product not performed by IOS or caused by its incorrect use,
abuse or corruption of the Software Product or by use of the Software Product with
other software or on equipment with which it is incompatible.
9.2.
End
User’s Warranty
The End
User warrants, represents and undertakes that it:
9.2.1.
will
use the Software Product only for the purposes of its business;
9.2.2.
use
reasonable care and protection to prevent the unauthorised use, copying,
publication or dissemination of the Software Product;
9.2.3.
will
not use the Software Product in any manner that is not permitted
in terms of this Agreement;
9.2.4.
will
satisfy itself that the Software Product meets the needs of its business. It is the sole responsibility of the End User
to determine that the Software Product is ready for operational use in the End
User's business before it is so used; and
9.2.5.
will
ensure that the its computer, other hardware and any other software with which
the Software Product will be used is either the property of the End User or is
legally licensed to the End User for use with the Software Product.
9.3.
Indemnity
The End
User will indemnify IOS and its employees against all losses, costs, damages,
or expenses (whether direct or indirect) which IOS may suffer or incur and any
other claims which may be brought against IOS and/or its employees by any third
party in respect of any loss, liability (whether actual, contingent or
otherwise), damage, costs or expenses of any nature whatsoever as a consequence
of or which may arise from or be attributed to the breach by the End User of
the provisions of this Agreement or any act or omission on the part of the End
User or from any other cause whatsoever.
10.1.
All
rights, title, ownership and interest including
Intellectual Property in and to the Software Product and Updates, shall at all
times remain the sole property of IOS. The
End User shall not during or at any time after the expiry or termination of
this Agreement in any way question or dispute the ownership by IOS of the
Intellectual Property.
10.2.
The End
User shall not use the Intellectual Property save with the prior written
consent of IOS.
10.3.
The End
User acknowledges and agrees that all Intellectual Property in and to the
Software Product and any Updates as a whole, belong to and vest in IOS.
10.4.
In the event that new inventions, designs or processes evolve in
performance of or as a result of this Agreement, the End User acknowledges that
the same shall be the property of IOS.
10.5.
The End
User shall indemnify IOS fully against all liabilities, costs
and expenses which IOS may incur as a result of any infringement of any patent
or other proprietary right by the End User.
11.
CONFIDENTIIALITY
OBLIGATIONS
11.1.
In
return for Confidential Information provided directly or indirectly by one
Party (Disclosing Party) to the
other Party (Receiving Party), each
Party shall:
11.1.1.
keep
Confidential Information secret;
11.1.2.
ensure
that Confidential Information is protected with security measures and a degree
of care that would apply to its own Confidential Information;
11.1.3.
use it
only as may be required by this Agreement;
11.1.4.
not
directly or indirectly disclose it in whole or in part to any person (or allow
it to be disclosed) or make Copies of it unless permitted to do so by this Agreement;
11.1.5.
ensure
that no one discloses confidential information unless authorised; and
11.1.6.
inform
the other Party immediately upon becoming aware or suspecting that an
unauthorised person has become aware of the Confidential Information.
11.2.
Information
is not Confidential Information if:
11.2.1.
It is
or subsequently becomes public knowledge other than as a direct or indirect
result of the information being disclosed in breach of this Agreement;
11.2.2.
Either
Party can establish to the reasonable satisfaction of the other Party that it
obtained the information from a source not connected with the other Party and
that the source is not under any obligation of confidence in respect of the
information.
The
End User agrees that IOS may collect and use technical data and related
information including but not limited to technical information about the End
User’s computer system and application software that are gathered periodically
to facilitate the provision of Updates, Upgrades and other services to the End
User related to this Agreement.
13.1.
Save
in respect of those provisions of this Agreement which provide for their own
remedies which would be incompatible with the dispute resolution provisions of
this Agreement, should any dispute, disagreement or claim of whatsoever nature
arise between the Parties in regard to the interpretation of this Agreement,
the carrying into effect of the Parties’ rights and obligations arising from
this Agreement, or the termination or purported termination of this Agreement,
(the Dispute), such Dispute shall be
resolved in the following sequence:
13.1.2.
If
negotiation under 12.1.1 fails, mediation in terms of clause 12.2; and
13.1.3.
If
mediation fails, arbitration in terms of clause 12.4.
13.2.1.
submit
the Dispute to mediation to be administered by AFSA, upon such terms as agreed
between the Parties and the secretariat of the AFSA; and
13.3.
The
agreement facilitated by the mediator shall become final and binding within 14
(fourteen) days of delivery thereof to the Parties, unless one or the Parties
disputes same by written notice to the other Party within the aforesaid 7
(seven) day period, in which event the Dispute shall be referred to arbitration
in accordance with the provisions in clause 12.4.
13.4.
Failing
agreement as referred to in clause 12.2.2 above or in the event of any of the Parties
furnishing its notice of dispute within 7 (seven) days of the agreement
envisaged in terms of clause 12.3 above, the Dispute shall be submitted to
arbitration for final resolution in accordance with the rules of AFSA by an
arbitrator or arbitrators appointed by AFSA subject to the following:
13.4.1.
the number of arbitrators shall be 1;
13.4.2.
the place of arbitration shall be at Port
Elizabeth, unless the Parties agree otherwise;
13.4.3.
the language
to be
used in the arbitral proceedings shall be English; and
13.4.4.
the arbitrator
shall
be obligated to give his award in writing fully supported by reasons, which
award shall be final and binding to the Parties, subject to the right of
appeal.
13.5.
This clause 12 shall not
preclude any Party from obtaining interim relief on an urgent basis from a
competent court of competent jurisdiction. For this reason, the Parties consent
and submit to the jurisdiction of the Eastern Cape High Court of South Africa
having jurisdiction in respect of any dispute arising from or in connection
with this Agreement.
14.
ADDRESSES FOR LEGAL PROCESS AND NOTICES
14.1.1.
IOS: 4 Hurd Street
Newton Park
Port Elizabeth
6001
14.1.2.
Email
address: chrisg@iosystems.co.za
14.1.3.
The
End User: _____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Email
address: _____________________________
14.1.4.
Any
legal process to be served on any of the Parties may be served on it at the
physical address specified for it in clause 13.1 and it chooses that address as its domicilium citandi et executandi for all purposes under this Agreement.
14.2.
Any
notice or any other communication to be given to any of the Parties in terms of
this Agreement shall be valid and effective only if it is given in writing,
provided that any notice given by email shall be regarded for this purpose as
having been given in writing.
14.3.
A
notice to any of the Parties which is sent by registered post in a correctly
addressed envelope to the postal address specified for it in clause 13.1 shall be deemed to have been received within 14
(fourteen) days from the date it was posted, or which it is delivered to the
Party by hand at the physical address specified for in clause 13.1 shall be deemed to have been received on the day
of delivery, provided it was delivered to a responsible person during ordinary
business hours.
14.4.
Each
notice by email to a Party at the email address specified for it in clause 13.1 shall be deemed to have been received within 4
(four) hours of transmission if it is transmitted during ordinary business
hours of the receiving Party or within 4 (four) hours of the beginning of the
next Business Day after it is transmitted, if it is transmitted outside of
those business hours.
14.5.
Notwithstanding
anything to the contrary in this clause 13, a written notice or other communication actually
received by any of the Parties (and for which written receipt has been
obtained) shall be adequate written notice or communication to it notwithstanding
that the notice was not sent to or delivered at its chosen address.
14.6.
Any
party may by written notice to the other Parties change its physical or postal
address or email address for the purposes of clause 13.1 to any other physical or postal address or email
address provided that the change shall become effective on the seventh day
after the receipt of the notice.
15.1.
Relationship
This
Agreement does not make either of the Parties an agent or legal representative
of the other for any purposes whatsoever and neither of the Parties shall be
entitled to act on behalf of, or to represent the other, or to bind the other's
credit unless expressly duly authorised thereto in writing.
Nothing in this Agreement shall be construed as
creating a partnership, relationship of employment or joint venture between the
Parties.
15.2.
Remedies
No remedy conferred by this Agreement is intended
to be exclusive of any other remedy which is otherwise available at law, by
statute or otherwise. Each remedy shall be cumulative and in addition to every
other remedy given hereunder or now or hereafter existing at law, by statute or
otherwise. The election of any one or more remedies by any of the Parties shall
not constitute a waiver by such Party of the right to pursue any other remedy.
15.3.
Severance
If any provision of this Agreement, which is not
material to its efficacy as a whole, is
rendered void, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
15.4.
Entire
Agreement
15.4.1.
This
Agreement constitutes the entire agreement between the Parties in regard to its subject matter.
15.4.2.
None
of the Parties shall have any claim or right arising from any undertaking,
representation or warranty not included in this Agreement.
15.5.
Variations
No agreement to vary, add to or cancel this
Agreement shall be of any force or effect unless recorded in writing and signed
by or on behalf of all of the Parties.
15.6.
Waiver
No failure by a Party to enforce any provision of
this Agreement shall constitute a waiver of such provision or affect in any way
a Party’s right to require performance of any such provision at any time in the
future, nor shall the waiver of any subsequent breach nullify the effectiveness
of the provision itself.
15.7.
Assignment
The End User may not cede any of its rights or
delegate any of its obligations under this Agreement.
15.8.
General
Co-operation
The Parties shall co-operate with each other and
execute and deliver to the other Parties such other instruments and documents
and take such other actions as may be reasonably requested from time to time in
order to carry out, evidence and confirm their rights and the intended purpose
of this Agreement
15.9.
Counterparts
This Agreement may be signed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any Party
may enter into this Agreement by signing such counterpart.
15.10.
Governing
law
The validity of this Agreement, its interpretation,
the respective rights and obligations of the Parties and all other matters
arising in any way out of it or its expiration or earlier termination for any
reason shall be determined in accordance with the laws of South Africa.
15.11.
Survival
of Rights, Duties and Obligations
Termination of this Agreement for any cause shall
not release either Party from any liability which at the time of termination
has already accrued to the other Party or which thereafter may accrue in
respect of any act or omission prior to such termination.
16.1.
Any
costs or expenses incurred by a Party in respect of this Agreement and its
implementation will be for its own account.
16.2.
If any legal
proceedings relating to the enforcement by either Party of its rights in terms
of this Agreement, an arbitrator or court awards costs to any Party, such costs
shall be determined and recoverable on the scale between an attorney and his
own client and shall include collection charges, the costs incurred by such
Party in endeavouring to enforce such rights prior to the institution of legal
proceedings and the costs incurred in connection with the satisfaction or
enforcement of any judgement awarded in favour of such Party in relation to its
rights in terms of or arising out of
this Agreement.