SOFTWARE SUBLICENSE AGREEMENT

Transcription

1 Office th Floor, Bedford Centre Office Tower, Cnr Smith Road & Van de Linde Road, Bedfordview, Johannesburg, South Africa (0) SOFTWARE SUBLICENSE AGREEMENT This Software Sublicense Agreement (hereinafter, referred to as the Agreement ) is deemed to have been concluded on date of signature (hereinafter, referred to as the Effective Date ) by and between Entimex Education Pty Ltd having a principal place of business at: Office th Floor, Bedford Centre Office Tower, Cnr Smith Road & Van de Linde Road, Bedfordview, Johannesburg, 2007, South Africa Company Registration: 2011/011105/07 Tax No: (Hereinafter, referred to as the Sub licensor ) and and, having a principal place of business at, (Hereinafter, referred to as the Sub licensee ) (Collectively, the Parties and each individually a Party ). WHEREAS: (A) The Sub licensor is a company, which acquired the rights to sublicense the Software (as defined in Section 1) to third parties, (B) The Sub licensee would like to obtain a sublicense to use the software product and the Sub licensor agrees to provide the Sub licensee with such a sublicense. NOW THEREFORE IT IS HEREBY AGREED as follows: 1. Definitions The following terms are defined for the purposes of this Agreement: Escrow Agent means the escrow agent appointed by Ed-admin pursuant to the Escrow Agreement.

2 Escrow Agreement means an agreement concluded on 20 June 2014 in which: (1) Software Escrow & Copyright Agents Pty Ltd having an address at PO Box 452 Collins Street, WEST VIC 8007, Australia is defined as an Escrow Agent ; and (2) Ed-Admin is defined as a Supplier. On the basis of the provisions this Agreement, the Sub licensee is a Customer within the meaning of the Escrow Agreement. Escrow Agreement Annual Service Fee means a product that is purchased through the client portal which, when purchased gives the sub-licensee rights to access the escrow materials under the terms of this agreement and the attached Appendices. Object Code means the Software written in computer programming code in the form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation. Software means: (1) The browser based education management application branded as Ed-admin (2) The specific software modules stipulated in APPENDIX A - Software (3) The manuals and other end-user documentation generally provided with the aforementioned software product; (4) All modifications, enhancements, revisions or updates in versions of the Software as soon as reasonably possible after they are released by Ed-admin. Source Code means the Software (which shall include all modifications, enhancements, revisions or updates in versions of the software supplied to the Sub licensee from time to time by the Sub licensor) written in programming languages, including all comments and procedural code, in a form intelligible to trained programmers for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Software in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the Software without undue experimentation. Sublicense means the sublicense granted to the Sub licensee by the Sub licensor pursuant to Section 3.1 of this Agreement. 2. Representations and Warranties of the Sub licensor 2.1 The Sub licensor represents that it has concluded an agreement with Ed-admin in which Ed-admin has warranted that it is the sole owner of the Software and that the Sub licensor can enforce all of the

3 obligations that it has agreed with the Sub licensee and upon which it may be dependent on Ed-admin, against Ed-admin. 2.2 The Sub licensor represents and warrants that the Software does not contain materials infringing third party rights. Should any action, claim or suit be commenced against the Sub licensee which alleges that the use of the Software infringes the patent, copyright, industrial design, trademark or other intellectual property interests or claims of a third party, the Sub licensor will indemnify and save the Sub licensee harmless from any and all such actions, claims or suits, and will indemnify the Sub licensee for any costs incurred in defending any such action, claim or suit on a solicitor and his own client basis. 2.3 The Sub licensor represents and warrants that the Sub licensor is entitled to (1) receive modifications, enhancements, revisions or updates in versions of the Software supplied by Ed-admin and (2) sublicense such modifications, enhancements, revisions or updates in versions of the Software to the Sub licensee and (3) that Ed-admin is, in terms of the Franchise Agreement concluded between it and the Sub licensor, obliged to provide modifications, enhancements, revisions and updates of the Software, as soon as these have been made available to Ed-admin clients, or third party sub licensors. 2.4 The Sub licensor represents and warrants that Ed-admin has agreed and will enter into a Software Escrow Agreement directly between itself, the appointed Escrow Agent and the Sub licensee prior to or simultaneously with the conclusion of this Agreement. 2.5 The Sub licensor recognizes and acknowledges that any breach of the representations and warranties in this Section 2 will cause irreparable damages to the Sub licensee which cannot be easily or readily quantified in terms of monetary compensation. 2.6 The Sub licensor agrees that, in case of a breach of the representations and warranties in this Section 2, the Sub licensee shall, without prejudice to its rights to claim damages from the Sub licensor, have the right to seek immediate injunctive relief against the Sub licensor. 3. Sublicense 3.1 Subject to the terms and conditions of this Agreement, the Sublicensor hereby grants to the Sublicensee a non-exclusive, non-transferable sublicense to use the Software within the territory of the Republic of South Africa for the term of this Agreement. 3.2 The Sub licensee acknowledges and agrees that, as a result of this Sublicense or any use permitted hereunder or any use of the Software, the Sub licensee is not acquiring and will not acquire any ownership of or to the Software.

4 3.3 The Sub licensee acknowledges and agrees that the Sub licensee is prohibited from reverse engineering or otherwise attempting to learn the Source Code of the Software from the uses permitted under this Agreement. 3.4 The Sub licensee may make copies of the Software solely for backup, disaster recovery, or archival purposes, which copies shall contain Ed-admin s copyright and other proprietary notices. 3.5 In accordance with Section 2.3, the Sub licensor shall provide the Sub licensee with all modifications, corrections, or updates falling within the definition of Software stated in Section 1 as soon as such modifications, corrections, or updates are released by Ed-admin. 3.6 The Sub licensor and the Sub licensee acknowledge that the implementation of the Software has occurred before the Effective Date. 3.8 The Sub licensor acknowledge that the Sub licensee has met the minimum requirements for using the Software before the conclusion of this Agreement. In case the Sub licensor wants to change the minimum requirements for using the Software, the Sub licensor shall send a 90 day prior written notice to the Sub licensee. The Sub licensee shall meet the new minimum requirements after the expiration of the aforementioned 90 day period. 4. Payment Terms 4.1 As due and adequate consideration for the Sublicense and for as long as the Sublicense remains in effect, the Sublicensee hereby agrees to pay to the Sublicensor a fee (hereinafter, referred to as the Sublicense Fee ) for every 12 (twelve) month period commencing on the Effective Date. 4.2 The Sublicense Fee is specified in a price list attached to Annex I of this Agreement. 4.3 The Sublicensee shall pay the Sublicense Fee within 14 days after receipt of an invoice sent to the Sublicensee by the Sublicensor. 4.4 The Sublicense Fee shall be paid in South African rands in a bank account designated by the Sublicensor. 4.5 Sublicensor confirms that it has received all license fees due by the Sublicensee to the Sublicensor prior to the Effective date and up to the, as indicated in Annex 1 to this Agreement. 4.6 The Sublicense Fee is subject to annual escalation applicable on the Effective Date and thereafter on the anniversary of that date.

5 4.7 The escalation of Sublicense Fees chargeable by the Sublicensor to the Sublicensee shall be limited to an amount equal to the increase in the Consumer Price Index (CPI) relevant to the provision of software, as provided by the Department of Statistics in the Republic of South Africa for the 12 (twelve) month period immediately preceding the date specified in 4.6 in each year. 4.8 The Sublicensor shall provide written notice to the Sublicensee of an intended increase 3 (three) months prior to the increase coming into effect. 5. Term 5.1 This Agreement shall commence on the Effective Date and shall continue for a period of 24 (twenty four) months (hereinafter, referred to as the Initial Term ). 5.2 On the expiry of the Initial Term this Agreement shall automatically be renewed for periods of 12 (twelve) months commencing on the anniversary of the Effective Date until the day immediately prior to the anniversary of the Commencement Date, subject to either party wishing to terminate this Agreement and exercising the termination provided in Should either party to this Agreement wish to terminate the Agreement, on the expiry of the then current term they shall provide to the other party, at least 6 (six) months prior to the then current term of the Agreement, written notice of their intention to terminate the Agreement. 6. Supply of Object Code 6.1 The Sub licensee acknowledges that it has received and is in possession of the Software in Object Code, which Software was provided to it prior to the Effective Date. 7. Escrow 7.1 It is recorded that prior to or simultaneously with this Agreement an Escrow Agreement will be concluded between the Escrow Agent, Ed-admin and the Sub licensee. This agreement is attached to this document at Annex C Software Escrow Agreement. 7.2 In terms of the Escrow Agreement the Software which is the subject of this Sublicense Agreement shall be deposited with the Escrow Agent, including all modifications, enhancements, revisions or updates in versions of the software supplied by the Licensor to the Sub licensee. 7.3 The Sub-licensee will pay an annual Escrow Agreement Annual Service Fee in order to be able to access Escrow material under the terms of the Software Escrow Agreement. 7.4 Payment terms for the Escrow Agreement Annual Service Fee will be under the same terms as is stipulated for the sub-license fees set out in Clause 4.

6 7.5 The Software Escrow Agreement will provide all circumstances that will trigger the Escrow Agent to release the Source Code to the Sub licensee. Refer to Appendix C Software Escrow Agreement Clause 10 for these circumstances. 7.4 The sub-licensor warrants that Ed-admin Pty Ltd, the owner of the software, has entered into the Software Escrow Agreement and will comply with all of its obligations and will allow access to the Escrow Materials to any sub-licensee under the terms of the Software Escrow Agreement if the sub-licensee has paid the Escrow Agreement Annual Service Fee under the terms set out in Clause Protection of Personal Information 8.1 The Sub licensor acknowledges that in fulfilling its obligations in terms of this Agreement it may receive personal information as defined in, and which is subject to the Protection of Personal Information Act No. 4 of 2013 ( the Act ). 8.2 The Sub licensor acknowledges that it is required in terms of the Act to secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate, reasonable technical and organizational measures to prevent: Loss of, damage to, or unauthorized destruction of the personal information; Unlawful access to or processing of personal information. 8.3 The Sub licensee warrants to the Sub licensor that it shall take reasonable measures, in terms of Generally Accepted Information Security Practices and Procedures, to, on a continuous basis, as may be required in terms of Generally Accepted Information Security Practice: Identify all reasonably foreseeable internal and external risks to personal information in its possession or under its control that may have communicated to it by the Sub licensee; Establish and maintain appropriate safeguards against the risks identified; Regularly verify that the safeguards are effectively implemented; and Ensure that the safeguards contemplated in are continually updated in response to new risks or deficiencies in previously implemented safeguards. 8.4 To the extent that the Sub licensor may communicate personal information to a third party or allow personal information to be processed by a third party, the Sub licensee shall conclude a written contract with the third party requiring the establishment and maintenance of the information security measures referred to in 8.2 and The Sub licensor shall not allow the communication or processing of personal information communicated or processed by it by a third party outside of the Republic of South Africa, without concluding an appropriate agreement with that third party and obtaining the prior written consent of the Sub licensee to the communication and processing of the personal information.

7 8.6 The Sub Licensee acknowledges that certain personal information processed using the software may be communicated to Ed-admin, the owner of the software, for support and other purposes. The Sub Licensor warrants that it has received a warranty and indemnity from Ed-admin in the Franchise Agreement concluded between it and Ed-admin, in terms of which Ed-admin undertakes to comply with all of the provisions of the Protection of Personal Information Act 4 of 2013 effective in South Africa (to the extent that it is relevant to safeguarding the personal information), and all data protection legislation effective in Australia that may apply to the processing of personal information which may be processed by the Sub Licensor on behalf of the Sub Licensee. 8.7 The sub-licensee may not transfer personal information about a data subject to a third party who is in a foreign country unless: (a) The third party who is the recipient of the information is subject to a law, binding corporate rules or binding agreement which provide an adequate level of protection that: (i) Effectively upholds principles for reasonable processing of the information that are substantially similar to the conditions for the lawful processing of personal information relating to a data subject who is a natural person and, where applicable, a juristic person; and (ii) Includes provisions, that are substantially similar to this section, relating to the further transfer of personal information from the recipient to third parties who are in a foreign country; (b) The data subject consents to the transfer; (c) The transfer is necessary for the performance of a contract between the data subject and the responsible party, or for the implementation of pre-contractual measures taken in response to the data subject s request; (d) The transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the responsible party and a third party; or (e) The transfer is for the benefit of the data subject, and: (i) It is not reasonably practicable to obtain the consent of the data subject to that transfer; and (ii) If it were reasonably practicable to obtain such consent, the data subject would likely give it. 8.8 If for any reason the integrity and confidentiality of the personal information under the control of or processed by the Sub licensee, or any third parties to which the Sub licensee communicates or allows the processing of such personal information, is compromised, or there are reasonable grounds to believe that

8 such information has been accessed or acquired by an unauthorized person, the Sub licensor shall immediately notify the Sub licensee, in writing, of this fact, providing full details of the actual or suspected compromise. 8.9 The agreements contemplated in 8.4 and 8.5 shall oblige any third party in control of or processing personal information subject to this provision to immediately notify both the Sub licensor and Sub licensee of any actual or suspected compromise of personal information provided to it by the Sub licensee. 9. Confidential Information 9.1 What is included. Confidential information is non-public information, proprietary information and trade secrets in any form that: Is designated as confidential ; A reasonable person knows or reasonably should understand to be confidential; or; For the purposes of this Agreement the following information is stipulated to be confidential: Proprietary information of either the Sub licensor or the Sub licensee, which includes but is not limited to: Business information including cost and pricing information; Business plans, advertising and marketing plans and strategies; Technical information including methods, systems, business processes, techniques, inventions and computer software; Educational materials and information of whatever nature belonging to the Sub licensee or under its control; and personal information of any student who may have been enrolled with the Sub Licensee at any time, the parents of the student, the staff of the Sub Licensee or any third party whose personal information is processed by the Sub Licensee. 9.2 What is not included. The following types of information, however marked, are not confidential information. Information that: is, or becomes, publicly available without breach of this Agreement; Was lawfully known to the receiver of the information without an obligation to keep it confidential; Is received from another source who can disclose it lawfully and without an obligation to keep it confidential.

9 9.3 Treatment of Confidential Information In general. Subject to the other terms of the Agreement, the Sub licensor agrees not to disclose any confidential information to any third parties without the prior written consent of the other party. 9.4 Security Precautions The Sub licensor agrees: To take all reasonable steps to safeguard confidential information. These safeguards must be appropriate to the sensitivity of the information and comply with Generally Accepted Information Security Practice and any policies, procedures or standards implemented by that party; To notify the Account Manager of the other party immediately upon discovery of any unauthorized access to confidential information; and To cooperate with the other party or persons appointed by the other party, to deal with any security breach, aimed at regaining control of the confidential information and preventing further unauthorized access to, use of or disclosure of confidential information. 10. Termination 10.1 Each Party shall have the right to terminate this Agreement upon written notice, in the event of the other Party s (hereinafter, referred to as the Breaching Party ) Material Breach hereof which is not cured within 60 (sixty) days after notice specifying such breach (hereinafter, referred to as the Cure Period ). If the Sub licensor terminates this Agreement pursuant to this Section 10.1, the Sub licensee will not be entitled to a refund of any fee paid by the Sub licensee under this Agreement If the Breaching Party denies that a Material Breach exists, the Breaching Party is entitled to seek an interdict to suspend the Cure Period to enable a court to determine if a Material Breach really exists For the purposes of Section 10.1, Material Breach shall mean a breach by either Party of any of its obligations under this Agreement which has or is likely to have a material adverse effect on (a) the ability of the non-breaching Party to exercise any of its rights to perform/discharge any of its duties/obligations under and in accordance with the provisions of this Agreement and/or (b) the legality, validity, binding nature or enforceability of this Agreement The termination of this Agreement shall not impair any rights or remedies of any Party accrued prior to the termination of this Agreement The Parties agree that if this Agreement is terminated they will assist one another in ensuring that their obligations in terms of this Agreement may be met, which assistance shall be made in good faith, in a reasonable, time efficient and time effective manner.

10 10.6 On the termination of this Agreement either Party in possession of confidential information belonging to the other Party shall return the confidential information to the other Party and certify that they are no longer in possession of any confidential information which may belong to the other Party The Sub licensor shall return all personal information which may be in its possession, in respect of which the Sub licensee is the responsible Party in terms of South African law, and it shall certify to the Sub licensee that neither it, nor any third parties to which it may have provided personal information, remains in possession of the personal information The Sub licensor shall, in good faith, cooperate with any service providers appointed by the Sub licensee in effecting the transfer of data from software licensed by the Sub licensor to the Sub licensee and from any databases in the Sub licensor s information systems to the software and databases provided by the new service provider The Sub licensor shall be entitled to charge for its services in giving effect to this obligation, at the rate which it charges its most favoured customers at the time that the services are rendered, subject to the Sub licensee being entitled to set off any amounts which may be in credit in terms of a support plan chosen by it in terms of the Software Support Agreement concluded between the Sub licensor and the Sub licensee. 11. Notice 11.1 Any notice required to be given under this Agreement shall be given in writing and shall be sent to the other Party by to the address specified in Section The notice shall be deemed to have been delivered once delivered in terms of Section 23 of the Electronic Communications and Transactions Act For the purposes of Section 11.1, the address of the Sub licensor is accounts@entimex.com. For the purposes of Section 11.1, the address of the Sub licensee 12. Amendments of this Agreement 12.1 This Agreement may only be amended by prior written agreement, duly signed by authorized representatives of the Parties. 13. Governing Law 13.1 This Agreement shall be read, construed and take effect in accordance with the laws of the Republic of South Africa and the Parties hereto expressly agree to submit to the exclusive jurisdiction of the courts in the Republic of South Africa.

11 14. Dispute Resolution 14.1 In the event of a dispute between the Parties, either Party may call a meeting (hereinafter, referred to as the Initial Meeting ) on providing the other Party with not less than 3 (three) working days notice. Such Initial Meeting may be in person if convenient for both Parties otherwise shall be by way of telephone call or Skype or such other format as is convenient In the event such an Initial Meeting fails to reach a resolution, the Parties will attempt to settle the dispute by mediation. The mediator will be selected and appointed by a mutual agreement of both Parties. The mediation will take place in South Africa and the language of the mediation will be English. The costs of any mediation shall be borne equally between the Parties. All aspects of the mediation, including any documents exchanged in relation to it, shall be confidential and on a without prejudice basis If the dispute is not settled by mediation within 30 (thirty) days of commencement of the mediation or within such further period as the Parties may agree in writing, the Parties shall be free to commence litigation. 15. Relationship Management 15.1 Each Party shall appoint an account manager, who shall be primarily responsible for the management of the relationship between the Parties The account managers shall inter alia: (1) act as the primary point of contact in communications and negotiations between the Parties; (2) provide any information reasonably required by the Parties in respect of quotations, orders and/or payments, including but not limited to, overdue or disputed payments; (3) arrange meetings and consultations between the Parties; and (4) generally, manage issues arising from this Agreement The account managers shall provide to one another contact details which will include at a minimum the current telephone number, mobile number and address of the account manager. The account managers shall be readily accessible (within no less than 8 (eight) working hours) during the period 08h00 to 17h00 South African Standard Time (SAST) on all weekdays which are not public holidays The account managers shall meet with their immediate counterparts as often as may be necessary to discuss any issues relating to the relationship between the Parties Where appropriate the meetings between account managers may take place telephonically provided that all the issues requiring the attention of the account managers are properly addressed.

12 15.6 Account managers shall make appropriate records of the meetings with their counterparts, and ensure the secure retention of these records. 16. Waiver 16.1 A failure of a Party to enforce strictly a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a Party of any breach or default by the other Party shall operate as a waiver of any succeeding breach or other default or breach by such other Party. No waiver shall have any effect unless it is specific, irrevocable and in writing. 17. Entire Agreement 17.1 This Agreement constitutes the entire understanding between the Parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the Parties relating thereto. 18. Severability 18.1 The unenforceability of any single provision of this Agreement shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Parties shall use their best endeavors to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision. 19. Transfer and Assignment 19.1 Each Party may assign, transfer or novate any of its rights or obligations under this Agreement only after receiving a written consent from the other Party which shall not unreasonably be withheld. 20. Authority 20.1 The persons signing this agreement hereby warrant that they have the legal capacity and if appropriate, are properly empowered and duly authorized to sign this agreement. The Sub licensor Signed: Name: Title:

13 The Sub licensee Signed: Name: Title:

14 APPENDIX A Software Ed-admin Education Enterprise Management System including the following modules (Insert screen shots )

15 APPENDIX B Entimex Price List (Insert screen shots)

16 APPENDIX C Software Escrow Agreement