|DO NOT INSTALL THE SOFTWARE OR DATA CONTAINED IN THIS PACKAGE UNTIL YOU HAVE READ ALL THE TERMS OF THIS LICENCE AND AGREE TO BECOME THE LICENSEE OF THE PACKAGE ON SUCH TERMS. ACCEPTANCE SHALL BIND YOU TO THE TERMS OF THIS LICENCE. BY TICKING THE “ACCEPT” BOX AND CLICKING ON THE “NEXT” BUTTON BELOW YOU WILL BE DEEMED TO ACCEPT ALL THE TERMS BELOW. IF YOU DO NOT WISH TO ACCEPT THESE TERMS, CLICK ON THE “CANCEL” BUTTON BELOW AND NOTIFY THE LICENSOR OR ITS AGENT OR OTHER PARTY FROM WHOM YOU OBTAINED THIS PACKAGE OF YOUR REJECTION, AND, PROVIDED YOU CONFIRM TO US IN WRITING THAT YOU HAVE DESTROYED ALL COPIES OF THE PACKAGE IN YOUR POSSESSION, ANY LICENCE FEE YOU MAY HAVE PAID WILL BE REFUNDED TO YOU.|
1. The Licence
Tracks4Africa (Pty) Ltd (the "Licensor" which expression shall include its agents, successors and assigns) licenses the copyright materials (including the software, data and related documentation) contained in this package as well as any updates thereto provided by the Licensor (the "Package") to you (“the Licensee”) on the terms hereof and upon installation the Licensee accepts a non-exclusive, non-transferable Licence to "Use" (as hereinafter defined) the Package on a computer system or device that Licensor has approved as being suitable for use with the Package (the "Device") upon the terms and subject to the conditions contained herein. For the purposes hereof "Use" shall mean loading one copy of the Package into the temporary memory (RAM) or installing it into the permanent memory (e.g. hard disk, CD ROM or other storage device) of a single Device that complies with the Licensor’s stated requirements, for use solely for the personal benefit of the Licensee.
2. Acceptance of this Licence
The terms and conditions of this Licence are deemed to be accepted by the parties as follows:
(a) by the Licensee by ticking the “Accept” box and clicking the “Next” button below or otherwise by installing the Package; and
(b) by the Licensor upon its confirmation of registration of the Package with the Licensor by the Licensee.
3. Licence Fee
Where the Licence Fee is not paid by the Licensee at the time the Package is obtained from the Licensor or its agent the Licence Fee will be payable upon registration of the Package with the Licensor.
4. Licensee's Undertakings
The Licensee undertakes not to perform any of the acts referred to in this sub-clause (a) except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user of the Package and only then for the specific limited purpose stated in such applicable law. The Licensee undertakes:
(a) not to use the Package otherwise than in conjunction with a Device approved by Licensor;
(b) not to copy the Package (other than in connection with normal Device implementation and operation);
(c) not to translate, adapt, vary, or modify the Package;
(d) not to disassemble, decompile or reverse engineer the Package or otherwise try to derive or gain access to the source code or contents thereof;
(e) not to distribute, rent, lease, sub-license, sell, assign or otherwise transfer any part of the Package, or otherwise make available the Package in whole or in part (including where applicable, but not limited to program listings, object code and source program listings, object code and source code), in any form to any person other than its employees without prior written consent from the Licensor; and
(f) not to use the Package in any way after termination of this Licence, and immediately after the date of termination or discontinuance of this Licence for whatever reason, to destroy all its copies of the Package.
5. Use of Licensee Information
Licensor may collect information about Licensee and its use of the Package remotely. Licensee agrees and understands that such information may be collected and used freely and without restriction by Licensor and may be published in a public forum in the event of Licensor suspecting unauthorised use or breach of this Agreement by Licensee.
(a) The Package is not error free and any information supplied by or as part of it should be independently verified. All material errors should be reported to Licensor. In the event that the Licensee discovers a material error within 30 days from the date of payment of the Licence Fee which substantially affects the use of the Package and notifies the Licensor of the error within such period the Licensor shall within a reasonable period either refund the Licence Fee, replace the Package with a new one or rectify the error, PROVIDED THAT such error was not caused by any modification, variation or addition to the Package performed by anyone other than the Licensor, by the incorrect use, abuse or corruption of the Package or by use of the Package with other software or on equipment with which it is incompatible.
(b) To the extent permitted by the applicable law, the Licensor disclaims all warranties with respect to the Package, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
(c) The Licensee is responsible for virus scanning the Package and Licensor will not be liable for damage caused by a virus or harmful code contained in the Package.
6. Licensor's Liability
(a) RELIANCE ON AND USE OF THE PACKAGE AND THE INFORMATION SUPPLIED BY OR AS PART OF THE PACKAGE ARE AT LICENSEE’S SOLE RISK. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INJURY, EXPENSE, LOSS OR DAMAGE OF ANY KIND IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE ARISING IN CONNECTION WITH LICENSEE’S RELIANCE ON OR USE OF THE PACKAGE OR THE INFORMATION SUPPLIED, SAVE TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED BY APPLICABLE LAW, AND YOU INDEMNIFY LICENSOR AGAINST ANY AND ALL CLAIMS ARISING IN CONNECTION WITH SUCH RELIANCE OR USE.
(b) IN THE EVENT THAT ANY EXCLUSION CONTAINED IN THIS LICENCE SHALL BE HELD TO BE INVALID FOR ANY REASON AND THE LICENSOR BECOMES LIABLE FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY SHALL BE LIMITED TO THE LICENCE FEE PAID BY THE LICENSEE FOR THE PACKAGE.
7. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
(a) The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used or in connection with the Package relating thereto are and remain the sole property of the Licensor, and that the Licence granted herein is limited and revocable in terms of Clause 10 below.
(b) Any original material and information Licensee submits to Licensor pursuant to or in connection with its use of the Package will remain Licensee’s property, but Licensee grants Licensor an irrevocable, perpetual, worldwide, transferable, sub-licensable and royalty-free license to use such material and information free from any restriction and on the basis as if Licensor is the owner thereof, including by modifying, reproducing, compiling, publishing, publicly performing, distributing, broadcasting and promoting it in any way it sees fit.
8. Confidential Information
(a) All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have included in the Package or may from time to time impart to the Licensee relating to the Package (including the ideas and principles which underlie the Package) is proprietary and confidential to Licensor. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Licence and that it shall not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without the Licensor's prior written consent.
(b) The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent that Licensee may be legally compelled thereto.
9. Breach and Termination
(a) If Licensor becomes aware of any possible unauthorised use of the Package or any possible breach of any of the terms of this Licence by Licensee it may, without prejudice to any other right or remedy, suspend Licensee’s use of the Package, including by modifying the Package so as to render it technically inoperable, until such time as Licensee is able to demonstrate to Licensor’s satisfaction that no unauthorised use or breach occurred.
(b) In addition to provisions for termination as herein provided, the Licensor may by notice in writing to the Licensee terminate this Licence if the Licensee is in breach of any term, condition or provision of this Licence or required by the applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice from the Licensor specifying such breach. Breach by the Licensee of its obligations of confidence under Clause 8 or breach of the terms of the Licence contained in Clause 4 will be deemed non-remediable and will lead to automatic termination of this Licence with immediate effect.
(c) Termination, howsoever or whenever occasioned shall be without prejudice to any rights and remedies the Licensor may have under this Licence or under applicable law.
(d) Upon termination of this Licence, the Licensee shall cease to use the Package and shall promptly destroy or return to the Licensor any and all elements of such Package in accordance with the instructions of the Licensor, and in any event the Licensor, without prejudice to any of its other rights or remedies, may render the Package technically inoperable.
The Licensee shall not cede, delegate, assign or otherwise transfer all or any part of the Package, its rights to the Package or this Licence without the prior written consent of the Licensor. The Licensor hereby gives its consent to the cession, delegation, transfer and assignment to any third party by the Licensor of all or any of its rights and obligations under this Licence.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice that party's rights to take subsequent action.
In the event that any of these terms and conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
13. Law and Jurisdiction
The parties hereby agree that the Licence concluded between them and constituted on these terms and conditions shall be construed in accordance with South African law and that all disputes between them relating to the terms hereof will be subject to the exclusive jurisdiction of the Western Cape High Court, Cape Town of the Republic of South Africa, provided that if any other court has competent jurisdiction over the Licensee’s person, Licensor may also institute proceedings in connection with this Licence in such court, which the Licensee agrees will also have jurisdiction to adjudicate in such proceedings to the maximum extent permitted by applicable law.
14. Whole Agreement
This Licence is the entire agreement between the parties and shall take effect in substitution for all previous agreements and arrangements whether written or oral or implied between the Licensor and the Licensee relating to the licensing of the Package and all such agreements and arrangements shall be deemed to have been terminated by mutual consent with effect from the date hereof.