Commercial interface End User License Agreement

This End User License Agreement is a contract between Polybius Technologies (Pty) Ltd, registration number 2020/054179/07, a limited liability private company duly incorporated in South Africa (the “Licensor”) and you (the “End User“) regarding the use of Licensor’s software, namely “Commercial interface – Ci”, further described at https://www.polybiustechnologies.co.za (the “Licensed Software”).
By clicking, “I accept” or by installing, copying, or using the Licensed Software, End User agrees to be bound by the terms of this agreement read together with the Privacy Policy and where applicable, a signed and valid Software as a Service (“SaaS”) and/or Market interface Supplier contract.
1. License
1.1. License Grant. Licensor hereby grants to End User a non-exclusive, revocable, non-sublicensable license to use the Licensed Software.
1.2. No Other Rights. Licensor reserves for itself all other rights and interest not explicitly granted under this agreement.
2. Permitted Uses. End User may use the Licensed Software, based on a fair use principle, solely for End User’s purposes, as provided for in the Licensed Software. With regards to fair use, the Licensor reserves its rights to adjust pricing where the End User’s data storage exceeds acceptable use (“Fair Use Policy”).
3. Restricted Uses. End User will not –
3.1. distribute, license, loan, or sell the Licensed Software or other content that is contained or displayed in it,
3.2. modify, alter, or create any derivative works from the Licensed Software,
3.3. reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Licensed Software,
3.4. remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Licensed Software.
4. Support and Maintenance. Licensor will not have any obligation to provide End User with any support, maintenance, or other services.
5. Updates
5.1. Right to Updates. The Licensor will have the discretion to affect any updates, upgrades, modifications and enhancements (collectively, “Updates”) to the Licensed Software.
5.2. License to Updates. Unless Licensor provides other terms in writing, End User’s use of the Updates will be subject to this agreement.
6. Activation. The Licensed Software may require you to take certain steps to activate your Licensed Software or validate your subscription. Failure to activate or register the Licensed Software, validate the subscription, or a determination by us of fraudulent or unauthorized use of the Licensed Software may result in reduced functionality, inoperability of the Licensed Software, or a termination or suspension of the subscription.
7. License Fees. End User shall pay Licensor the license fee as selected by the End User in the Licensed Software (the “License Fee”) or as per signed and valid SaaS contract.
8. License Fee Payment. End User shall pay the License Fee to Licensor –
8.1. in an initial payment due on registration of the Licensed Software by the End User, and
8.2. additional subscriptions, payable in advance, for the License Fees selected by the End User, with each payment made to the account of Licensor specified in the Licensed Software, or
8.3. where relevant, as agreed to in a signed and valid SaaS contract.
9. Taxes. Each party shall pay the Taxes arising from the party’s performance of its obligations and from compensation paid to the party.
10. Interest on Late Payments. Any amount not paid when due, will bear interest from the due date until paid at a rate lesser of one percent (1%) and one-half percent (1.5%) per month (19.57% annually) or the maximum rate allowed by Law or as agreed to in a signed and valid SaaS contract.
11. Term. This agreement begins immediately on subscribing by End User to the Licensed Software “the Effective Date” and will continue until terminated (the “Term”) or as agreed to in a signed and valid SaaS contract.
12. No Warranty
12.1. “As-Is”. The Licensed Software is provided “as is,” with all faults, defects, bugs, and errors.
12.2. No Warranty. Unless otherwise listed in this agreement, Licensor does not make any warranty regarding the Licensed Software, which includes that Licensor disclaims to the fullest extent authorized by Law any and all other warranties, whether express or implied, including any implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for a particular purpose.
13. Licensed Software Ownership. Licensor will retain all ownership of the Licensed Software and all intellectual property rights in it.
14. Title. You acknowledge that no title to the intellectual property in the Licensed Software is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Licensed Software shall remain that of Licensor and/or the companies providing content.
15. Non-Infringement
15.1. No Infringement. The Licensed Software does not infringe the Intellectual Property rights or other rights of any third party.
15.2. No Third-Party infringement. To Licensor’s Knowledge, no third party is infringing the Licensed Software.
15.3. Not in Public Domain. The Licensed Software is not in the public domain.
16. Third-Party Software
16.1. Acknowledgement of Third-Party Software. End User hereby acknowledges that the Licensed Software might contain third party software that require additional notices or are subject to additional terms and conditions.
16.2. Conflicting Terms. If there are any conflicts between this agreement and the additional terms or conditions governing third party software, those additional terms and conditions will control in connection with third party software.
17. End User Data
17.1. Collect and Use of Data. Licensor may collect and use any information gathered as part of its maintenance, support, and training services, only for the purpose of improving its Licensed Software and services. Licensor may delete or anonymise registered information when the purpose of this agreement has been terminated, except if the data is or may be stored in accordance with applicable Laws.
17.2. Non-Disclosure. Licensor will not disclose any of this information in a form that personally identifies End User or End User’s clients, other than to other licensed End Users of the Licensed Software.
17.3. End User Authorisation. End User authorises Licensor to use any Confidential Information supplied by End User for the sole purpose as required by the Licensed Software.
17.4. End User Undertaking. End user warrants that all information provided at registration is personal to you and is accurate in every regard and any and all documents uploaded are prima facia copies and true representation of the originals and have not been modified or altered in any manner.
18. Export Control Laws. Each party shall obtain all Permits necessary to and otherwise comply with all Laws on export control applicable to this agreement and all transactions contemplated under this agreement.
19. Confidentiality
19.1. Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.
19.2. Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement.
19.3. Non-Disclosure. Neither party will disclose Confidential Information to a third party without the disclosing party’s written consent other than to other licensed End Users of the Licensed Software.
20. Monitoring. Licensor has no obligation, but reserves the right, to monitor and review your account information and history and the content and materials uploaded by you or others in the Licensed Software for the purpose of determining compliance with this Agreement or to detect illegal activity.
21. Termination
21.1. Termination by Licensor. Licensor may terminate this agreement with immediate effect if End Users breaches any part of this agreement.
21.2. Termination by End User. End User may terminate this agreement
21.2.1. by using the electronic subscription cancellation functionality which is available in the subscription management section of the user profile of the Licensed Software.
21.2.2. if you uninstall, discontinue use of, and destroy your copies of the Licensed Software, effective when End User delivers notice that it has done so.
21.2.3. On receipt of termination notice by the Licensor, you authorise the Licensor to delete your user account from the Licensed Software together with any and all documentation and information that may have been uploaded by virtue of your subscription.
21.3. Termination by SaaS contract. Where the End User has a signed and valid SaaS contract, termination will be governed by such contract.
21.4. Termination for Insolvency. If either party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other party may terminate this agreement with immediate effect.
21.5. Termination because of Law or Order. Either party may terminate this agreement with immediate effect if
21.5.1. there is or becomes any Law that makes the performance of the terms of this agreement illegal or otherwise prohibited, or
21.5.2. any governmental authority issues an order restraining or enjoining the transaction under this agreement.
22. Effect of Termination
22.1. Termination of Obligations. Subject to paragraph 22.2, on the expiration or termination of this agreement, each party’s rights and obligations under this agreement will cease immediately.
22.2. Payment Obligations. On the expiration or termination of this agreement, each party shall pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred.
23. Indemnification
23.1. Indemnification by End User. End User (as an indemnifying party) shall indemnify Licensor (as an indemnified party) against all losses and expenses in connection with any proceeding arising out of
23.1.1. End User’s use of the Licensed Software, and
23.1.2. End User’s unauthorized customization, modification, or other alterations to the Licensed Software, including claims that its customization, Confidential Information, modification, or other alterations infringe a third party’s Intellectual Property rights,
23.2. Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses in connection with any proceeding arising out of the indemnifying party’s wilful misconduct or gross negligence.
23.3. Notice and Failure to Notify
23.3.1. Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
23.3.1.1. notify the indemnifying party of the indemnifiable proceeding, and
23.3.1.2. deliver to the indemnifying party legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
23.3.2. Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
23.4. Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.
24. Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.
25. Definitions
25.1. “Confidential Information” means all material, non-public, business-related information, written or oral, whether or not it is marked as confidential, that is disclosed or made available to the recipient, directly or indirectly, through any means of communication or observation by the disclosing party or any of its affiliates or representatives.
25.2. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world
25.2.1. trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
25.2.2. copyrights, including all applications and registrations related to the foregoing,
25.2.3. trade secrets and confidential know-how,
25.2.4. patents and patent applications,
25.2.5. websites and internet domain name registrations, and
25.2.6. other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
25.3. “Law” means
25.3.1. any law (including the common law), statute, bylaw, rule, regulation, ordinance, treaty, decree, judgment, and
25.3.2. any official directive, protocol, code, guideline, notice, approval, policy, or other requirement of any governmental authority having the force of law.
25.4. “License Fee” is defined in section 7.
25.5. “Licensed Software” is defined in the introduction to this agreement.
25.6. “Permits” means all material licenses, consents, franchises, permits, certificates, approvals, and authorizations, from governmental authorities or third parties necessary for the ownership and operation of the party’s business.
25.7. “Privacy Policy” means the Licensor’s privacy policy as amended from time to time and published at https://www.polybiustechnologies.co.za.
25.8. “Taxes” includes all applicable taxes, assessments, charges, duties, fees, levies, and other charges of a government authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any government authority, whether disputed or not, any related charges, interest or penalties imposed by any government authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
26. General Provisions
26.1. Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement and where applicable a signed and valid SaaS and/or Market interface Supplier contract –
26.1.1. represent the final expression of the parties’ intent relating to the subject matter of this agreement,
26.1.2. contain all the terms the parties agreed to relating to the subject matter, and
26.1.3. replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.
26.2. Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.
26.3. Notices
26.3.1. Method of Notice. The parties shall give all notices and communications between the parties by making use of the electronic mail facility provided for in the Licensed Software.
26.3.2. Receipt of Notice. A notice given under this agreement will be effective on the other party’s receipt of it.
26.4. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
26.5. Waiver
26.5.1. Affirmative Waivers. Neither party’s failure nor neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.
26.5.2. Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
26.5.3. No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
26.6. Governing Law and Consent to Jurisdiction and Venue
26.6.1. Governing Law. This agreement, and any dispute arising out of it, shall be governed by the laws of the Republic of South Africa.
26.6.2. Consent to Jurisdiction. Each party hereby irrevocably consents to the exclusive jurisdiction of the High Court of the Republic of South Africa.
26.7. Interpretation
26.7.1. References to Specific Terms
26.7.1.1. Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the Republic of South Africa (“IFRS”).
26.7.1.2. Currency. Unless otherwise specified, all amounts expressed in this agreement refer to the South African Rand (“ZAR”).
26.7.1.3. “Including.” Where this agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.”
26.7.1.4. “Knowledge.” Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement, is expressed by a party to be “to its knowledge,” or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:
26.7.1.4.1. the then-current, actual knowledge of the directors and officers of that party, and
26.7.1.4.2. the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.
26.7.1.5. Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.
26.7.2. Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.
26.7.3. Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.
26.7.4. Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.
26.7.5. Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of the Entire Agreement will prevail. The parties shall take all necessary steps to conform to all terms of the Entire Agreement.
26.8. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is
26.8.1. beyond the reasonable control of a party,
26.8.2. materially affects the performance of any of its obligations under this agreement, and
26.8.3. could not reasonably have been foreseen or provided against but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.
26.9. Survival. The parties’ obligations under sections 19, and 22 will survive section 21 of this agreement.