GL Wand Licence Trial License Agreement Entered into between

Transcription

1 GL Wand Licence Trial License Agreement Entered into between Excel4apps (Pty) Ltd Republic of South Africa Company Registration No. 2005/029189/07 ( Excel4apps ) and You the trial user herein referred to as the Trial User 1 Introduction Excel4apps agrees to provide GL Wand trial software licences with limited Maintenance to Trial User who in turn agrees to purchase or trial GL Wand software licences and Maintenance provided from Excel4apps or an Excel4apps approved reseller.. 2 Commencement Date The date of commencement of this Agreement ( Commencement Date ) shall be the date on which the Trial User installs GL Wand trial software. 3 Duration 3.1 This Agreement shall commence on the Commencement Date and shall continue indefinitely in accordance with this clause. 4 GL Wand and Licences 4.1 For the purposes of this agreement, GL Wand shall mean the computer software called GL Wand including, but not limited to, all object code, programming, databases, stationery, fonts, images, animation, graphics, video, audio, text, applets, updates, upgrades, modified versions, additions, disks, CD-ROMs, electronic mail, electronic files, web-pages, accompanying printed materials, other media, and any copies of the software with which GL Wand is provided and/or installed (together GL Wand ). 4.2 Excel4apps shall provide Trial User with limited period non-exclusive licences, to use GL Wand under the terms and conditions of this Agreement and in accordance with Excel4apps specifications and intended uses. Trial User, by having installed or by using GL Wand, agrees to be bound by the terms of this Agreement. 4.3 The Licences, which are required for the operation of GL Wand, shall give Trial User the right to install and operate GL Wand on a single PC. 4.4 Trial User shall not obtain or to attempt to obtain a licence for the GL Wand from any other party. Trial User shall not de-compile, reverse engineer, disassemble, modify, adapt, translate, or otherwise change or attempt to change the GL Wand, enhance the GL Wand or merge or integrate the GL Wand into any other software program or create derivative works from the GL Wand. Trial User shall not use the GL Wand for any other purpose other than for its intended purpose in terms of this Agreement including, but not limited to, selling, renting, sub-licensing, giving, Page 1 of 6 Version 3.03

2 2 networking, assigning, lending, leasing, transferring, distributing, disposing of or otherwise making the GL Wand available for copying or use by any other person. 5 Maintenance 5.1 For the purposes of this Agreement, maintenance shall mean electronic correspondence support ( or other electronic media) for problem resolution, technical support and maintenance where necessary, and the provision of GL Wand upgrades or updates (together Maintenance ). Maintenance under this Agreement does not guarantee error-free or uninterrupted operation of GL Wand. 5.2 Excel4apps shall be under no obligation to provide Maintenance on trial software nor maintain GL Wand in proper working order in accordance with Excel4apps specifications. No person or party, other than Excel4apps personnel, agents or contractors, shall be permitted by Trial User to perform or attempt to perform any Maintenance of any kind on GL Wand. 5.3 Excel4apps shall have the right, without limitation and without diminishing the existing functionality of GL Wand, to revise, modify, upgrade and update GL Wand from time to time. 6 Access to Information Excel4apps, including any and all of its authorised representatives, retains full rights to access all data, reports, information or similar on GL Wand, pertaining to Trial User or any other party, in order only to facilitate Maintenance and Licence requirements as Excel4apps may deem necessary from time to time. 7 Excel4apps Warranties and Exclusions 7.1 Excel4apps does not warrant: that GL Wand will operate error-free or uninterrupted; the fitness, quality, merchantability or applicability of GL Wand for any particular purpose, any guaranteed levels of performance, or that it will operate in all circumstances; that GL Wand will meet Trial User s particular requirements; or that it will correct all or any program bugs or errors. 8 Trial User Warranties and Undertaking 8.1 Trial User warrants that throughout the duration of this Agreement, for every GL Wand licence being evaluated it shall maintain sufficient licenses for all related third party software including, but not limited to, Microsoft Windows, Microsoft Excel and Oracle Financials. 8.2 Trial User hereby irrevocably undertakes to allow Excel4apps, at its sole and exclusive discretion, to make use of Trial User s name for the purposes of marketing and promoting the business of Excel4apps. 8.3 Trial User acknowledges that usage data will be logged for marketing and technical purposes. The data includes the date and time, username, web agent, browser IP, login confirmation / error message and previous session calculation statistics are recorded each time the trial users logs into Oracle Applications. This information is logged through the browser pop-up window. No password information, financial Page 2 of 6

3 3 information or other personal data is logged. If for some reason you object to Excel4apps gathering this statistical information we recommend that do not use the trial version or that you purchase a fully licensed version. 9 Title, Ownership and Copyright 9.1 Trial User acknowledges and accepts that GL Wand and all title, ownership and rights thereto without limitation and including proprietary rights therein, are the sole and exclusive property of Excel4apps, and are protected by international treaty provisions and all other applicable national laws of the country in which they are being used. 9.2 Trial User has no rights in GL Wand except those expressly granted in this Agreement. 9.3 Full title and ownership of GL Wand shall remain vested in Excel4apps and/or its licensors. 9.4 No title or ownership interest in GL Wand is transferred to Trial User in terms of this Agreement. 10 Indemnity 10.1 Trial User hereby indemnifies Excel4apps and holds it harmless against any claim made against it as a result of any action or loss of any kind whether direct, indirect, incidental or consequential, as a result of: any act or omission, whether negligent or otherwise, of Excel4apps or its employees or agents pursuant to the performance of its duties in terms of this Agreement; any failure of GL Wand; or any loss of data, reports, information or similar. 11 Cession 11.1 Excel4apps may cede or transfer any or all of its rights or ownership in GL Wand and in this Agreement to any third party with prior notice to Trial User. Upon receiving such notice from Excel4apps, Trial User agrees and undertakes to honour and fulfil all of its obligations in terms of this Agreement Trial User may not cede or assign any of its rights or obligations under this Agreement. 12 Confidentiality 12.1 The parties will keep confidential and will not, without the prior written consent of the other party, disclose to any person the terms of this Agreement, the details of the negotiations leading to this Agreement, the information handed over to the other party during the course of negotiations and the course of this Agreement, and any information of any nature whatsoever relating to the business or the operations and affairs of the other party ( Confidential Information ) The parties agree to keep all Confidential Information confidential and not disclose it to anyone other than their officers, directors, employees, consultants, technicians and professional advisers who have a need to know (and then only to the extent Page 3 of 6

4 4 that each such person has a need to know); and are aware that the Confidential Information shall be kept confidential; and are aware of the disclosing party's undertaking in relation to such information in terms of this Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential The obligations of the parties in relation to the maintenance and non-disclosure of Confidential Information in terms of this Agreement do not extend to information that is disclosed to the receiving party in terms of this Agreement but at the time of such disclosure such information is known to be in the lawful possession or control of the receiving party and not subject to an obligation of confidentiality; is or becomes public knowledge, otherwise than pursuant to a breach of this agreement by the party who discloses such Confidential Information; is required by the provisions of any law, statute or regulation, or during any court proceedings, or by the rules or regulations of any recognised stock exchange to be disclosed and subject to these provisions, the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure of and to limit, as far as reasonably possible, the extent of such disclosure and has consulted with the other party prior to making such disclosure The obligations in this clause (16 Confidentiality) shall survive the termination of this agreement and neither party shall at no time thereafter disclose any such information until, and the onus shall be on the party concerned to demonstrate this, that information has become public knowledge as a result of deliberate disclosure by the other party. 13 Non-Poaching and Solicitation 13.1 Trial User shall not promote, encourage, entice, persuade or induce, directly or indirectly: employees or contractors of Excel4apps either to leave the employment of Excel4apps or be employed or engaged by another party in any capacity whatsoever; Trial Users or suppliers of Excel4apps from ceasing to deal with Excel4apps. 14 Divisibility Except for the purposes of the Fees in terms of this Agreement, this Agreement is divisible and to be regarded as a separate Agreement for each and every Trial GL Wand licence and/or component of GL Wand. 15 Jurisdiction All matters arising out of or in connection with the interpretation, implementation, termination or cancellation of this agreement, shall be governed in accordance with the laws in force in the Republic of South Africa, from time to time, and the law of the Republic of South Africa shall be deemed for all purposes to be the proper law of this agreement. 16 Breach 16.1 Should Trial User breach any of the conditions in this Agreement, or commit any act of insolvency, or attempt to compromise any of its creditors, or allow any judgement against it to remain unsatisfied for seven days, or be subject to a provisional or final order to liquidation or judicial management, or in the case of Trial User being a natural person, his estate being provisionally or finally sequestrated, or Page 4 of 6

5 5 surrendered, or do, or cause to be done anything which may prejudice Excel4apps rights under this Agreement, and fail to remedy the breach within 14 working days after receipt from Excel4apps of written notice calling upon Trial User to do so then Excel4apps by that breach shall be entitled, in addition to and without prejudice to any right Excel4apps may have as a result of the breach either to: enforce the performance of the terms hereof; cancel this Agreement and recover such damages as it may have sustained; or retain any and all of Trial User's data, reports, information or similar created by using GL Wand, and/or to terminate Trial User s Licences and to claim all outstanding fees, training charges, disbursements and all such damages which Excel4apps shall have sustained by reason of the failure of Trial User to carry out and fulfil its obligations hereunder Excel4apps remedies set out under clause 20.2 shall not be exhaustive and shall be in addition and without prejudice to any other remedies Excel4apps may have, whether for damages or otherwise Should Excel4apps breach any of the conditions in this Agreement, or commit any act of insolvency, or attempt to compromise any of its creditors, or allow any judgement against it to remain unsatisfied for seven days, or be subject to a provisional or final order to liquidation or judicial management, or in the case of Excel4apps being a natural person, his estate being provisionally or finally sequestrated, or surrendered, or do, or cause to be done anything which may prejudice Trial User s rights under this Agreement, and fail to remedy the breach within 30 working days after receipt from Trial User of written notice calling upon Excel4apps to do so then Trial User by that breach shall only be entitled, exhaustively and singularly to cancel this agreement and recover such Licence Fees and Maintenance Fees as it may have sustained. For the avoidance of doubt, the liability of Excel4apps is limited to the aggregate amount of Licence Fees and Maintenance Fees paid by Trial User to Excel4apps. 17 Warranties and Representations Neither party may rely on any representations, undertakings or warranties, given orally or otherwise, which allegedly induced that party to enter into this Agreement, which are not specified in this Agreement 18 Addresses 18.1 Notices shall be deemed to have been duly given 7 days after posting, if posted by registered post, to the party's postal address; or on delivery, if delivered to the party's physical address The parties choose the following physical addresses at which documents in legal proceedings in connection with this agreement may be served (i.e. their domicilia citandi et executandi): Trial User: Excel4apps: Location of PC on which trial software is installed Excel4apps (Pty) Ltd Building No. 2 Country Club Estate Woodlands Drive Woodmead Page 5 of 6

6 6 South Africa 19 Entire Agreement This Agreement, together with Addendum A, constitutes the entire agreement between the parties and supersedes all previous agreements between Excel4apps and Trial User with respect to GL Wand. 20 Variation, Cancellation and Waiver No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties. Page 6 of 6