FUSION SOFTWARE STANDARD TERMS AND CONDITIONS
This software licence terms and conditions (“Agreement”) is governed by the following standard terms and conditions and the specific terms and conditions included in the Order and the attached schedules which collectively form an integral part of this Agreement.
In the event of any conflict or inconsistency in this Agreement, the following order of precedence will apply:
a The Order
b the Schedules
c the standard terms and conditions of this Agreement
The Parties agree as follows:
1 DEFINITIONS
The following are the definitions of various terms used in this Agreement:
1.1 Affiliated Company means any legal entity, including any associate company or special purpose vehicle, which is directly or indirectly controlled by either Party to this Agreement for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty per cent of the nominal value of the issued equity share capital or of more than fifty per cent of the shares entitling the holders to vote for the election of directors or persons performing similar functions or right by any other means to elect or appoint directors or persons who collectively can exercise such control.
1.2 Applicable Laws means any law (including statutory, common or customary law), constitution, decree, judgment, treaty, regulation, directive, by law, order, other legislative measure, directive or requirement, request or guideline (whether or not having the force of law but, if not having the force of law, is generally complied with by the persons to whom it is addressed or applied) of any government, local government, statutory, regulatory, self-regulatory or similar body, authority or court and the common law, as amended, replaced, re-enacted, restated or reinterpreted from time to time.
1.3 Authorised Site means the place of main business of the Client where the Maintenance Services shall be provided.
1.4 Business Day means any day other than a Saturday, Sunday or official public holiday in South Africa.
1.5 Computer System means the hardware and operating system configuration required to run the Software System.
1.6 Corrections means any rectification to the Software System in order to fix reported functionality problems.
1.7 CPI means the latest available year on year increase in the Consumer Price Index (metropolitan areas, all items) as published in the Statistical Release P0141.1 compiled by Statistics South Africa as at the effective date of increase, or, in the absence thereof, a similar index nominated or prepared by Deloitte.
1.8 Critical Failure means the inability of the majority of users that are unable to use the Software System or majority of the functionality that is inoperable as shall be determined by Fusion Software at its sole descretion.
1.9 Delivery means either (i) shipment of licence keys or CDs of the Software System or (ii) electronic download of the Software System, whichever happens first.
1.10 Designated Operator mean persons designated as the main users of the Software System or an appointed representative (stand-in).
1.11 Documentation refers to the explanatory electronic or paper documents and notes in the English language containing user instructions and guidance for the Use of the Software System as supplied by Fusion Software.
1.12 Effective Date means the date of signature of the Order by the party signing last in time.
1.13 Enhancements means any improvement added to the functionality of the Software System.
1.14 Excluded Services means the services falling outside the scope of the Maintenance Services;
1.15 Fees means the fees payable by the Client to Fusion Software as set out in the Order.
1.16 Go Live Date means the day on which the Software System is used for the first time in a live transactional environment of the Client as determined by Fusion Software.
1.17 Implementation Services means the deliverables, responsibilities and obligations of the respective Parties to ensure a fully functional and operational Software System by the Go Live Date as described in more detail in clause 6.
1.18 Intellectual Property Rights means all current and future copyright, patents, trade marks (whether or not registered) or rights in databases, inventions or trade secrets, know-how, rights in designs, topographies, trade and business names, domain names, and all other intellectual and property rights and applications for any of those rights (where such applications can be made) capable of protection in any relevant country of the world.
1.19 Main Release means a major release of the Software System which includes such Corrections and Enhancements as to constitute a substantially revised Software System, as part of Maintenance Services.
1.20 Maintenance Services means the services provided by Fusion Software or one of Fusion Software Affiliated Companies as further detailed in clause 5 and Schedule 1.
1.21 Non-Conformity means a failure of the Software System to perform the functions described in the Software System’s Documentation.
1.22 Operating environment means the environment in which the Software System runs including but not limited to computer hardware and network infrastructure.
1.23 Order means a Quotation as issued by Fusion Software to a Client which is accepted by such Client as evidenced by its signature thereto.
1.24 Parties means the parties to this Agreements as identified in the Order and Party shall means anyone of the Parties as the context require.
1.25 Product Developments means any development made to the Software System at the Client’s request.
1.26 Quotation means a written quotation issued by Fusion Software to a Client which when accepted and signed by such Client constitutes an Order.
1.27 Schedule(s) means the Schedules, or any one or any combination of them, as the case may be, annexed hereto and forming part of this Agreement, including supplementary or substituting schedules that may be signed by the parties and annexed hereto from time to time.
1.28 Service Pack means a collection of Corrections provided to the Client on a regular basis and which forms part of Maintenance Services.
1.29 System Bug means an error, flaw, failure or fault in a computer program or system that causes it to produce an incorrect or unexpected result, or to behave in unintended ways as determined by Fusion Software at its sole descretion.
1.30 Software System, means (i) the standard computer programs in executable code supplied by Fusion Software for the modules on the terms and costs as listed in the Order. For avoidance of doubt, the Software System does not incorporate stand-alone modules or subsystems not supplied by Fusion Software.
1.31 South Africa means the Republic of South Africa.
1.32 Use means copying or loading any portion of the Software System from storage units or media for the processing of data by the Software System once so loaded, or the operation of any procedure or machine instruction utilizing any portion of either the computer program or instructional material supplied with the Software System. Use is generally deemed to occur at the Authorised Site where any of the above processes happen. However actual access or other processes may occur at other offices of the Client or its Affiliated Companies as defined below by remote access. Use is limited to the type of operations described in Fusion Software’s Documentation solely to process the Client’s own work and that of Affiliated Companies. Use specifically excludes any service bureau or time-share services to any third parties without prior written consent by Fusion Software and payment by the Client of mutually agreed additional fees.
1.33 VAT means Value Added Tax as levied in terms of the Value Added Tax Act, No. 89 of 1991, as amended.
1.34 Workaround means restoring functionality after critical failure which doesn’t necessarily include programmatically fixing the Software System
1.35 Fusion Software means the Fusion Software (Pty) Ltd entity with Registration number 2017/249376/07 and having its principal business at 1 Newtown Avenue, Killarney, Johannesburg, South Africa.
2 LICENCE TO USE THE SOFTWARE SYSTEM
2.1 Fusion Software agrees to deliver the Software System and Product Developments and the related Documentation for use at the Authorised Site and hereby grants to the Client a non-exclusive, non-transferable and non-sublicenceable licence to Use the Software System and the Product Developments on the Client’s Computer System and the related Documentation for the term of this agreement.
2.2 The Client may change the Authorised Site in the event the Client transfers its data processing department to a new site within the same country as the Authorised Site (“country of origin”). The Client will provide Fusion Software with 15 (fifteen_ Business Days notice of any proposed transfer of operation. For the transfer of the Authorised Site outside the country of origin, the Client shall request Fusion Software’s prior written consent, which consent will not be unreasonably withheld.
3 INTELLECTUAL PROPERTY
3.1 The Client recognises and agrees that the Intellectual Property Rights in the Software System, all Product Developments and all portions, reproductions, corrections, enhancements and modifications or any other material thereof provided to the Client are (i) the exclusive property of Fusion Software and (ii) are provided to the Client in confidence. Without derogating from the aforegoing, should the Client require any specific Product Development which it believes provides it a competitive advantage, same shall be undertaken in terms of a separate development agreement which will set out, amongst others, ownership of such Product Development.
3.2 Fusion Software prohibits the unauthorised copying of any portions of the Software System and the Product Developments except that the Client may copy reasonable quantities with the prior written consent of Fusion Software, of any standard Documentation and may copy machine language code, in whole or in part, in reasonable quantities, in printed or electronic form, for use by the Client at the Authorised Site for archive, back-up, testing, or emergency restart purposes, or to replace a copy made on defective media. The original, and any copies of the Software System and the Product Developments, or any part thereof, shall be the property of Fusion Software.
3.3 The Client will not attempt to and/or modify or permit anyone else to attempt to and/or modify, copy for distribution, reverse engineer, reverse compile or disassemble the code of the Software System and the Product Developments except where otherwise provided by Applicable Laws.
4 PRODUCT DEVELOPMENT LICENCE
Fusion Software agrees to develop and provide the Client with the Product Developments to the Software System and to include same under the licence to use the Software System as contemplated in clause 2.1. The requested Product Developments and payable Fees are listed in the Order.
5 MAINTENANCE SERVICES
5.1 Fusion Software shall render the Maintenance Services stipulated in Schedule 1 and the Client shall adhere to its obligations as set out in Schedule 1.
5.2 The Maintenance Services included in the annual licence fee or the rental amount as set out in the Order.
6 IMPLEMENTATION SERVICES
6.1 Fusion Software shall supply Implementation Services to install the Software System at the site specified by the Client as set out in the Order.
6.2 Any dates quoted for supply and installation or delivery of the Software System are estimates and Fusion Software shall not be liable for any delays in the supply and installation of the Products howsoever caused.
6.3 A claim that the Software System supplied and installed is not in accordance with the Order will not be considered by Fusion Software unless notice in writing by the Client specifying the alleged default, is given to Fusion Software within 10 (ten) Business Days from the date of the supply and installation of the Software System.
6.4 The Client understands that the product supplied is detailed in the Order and the Client cannot dispute the delivery of the Products on the basis of software demonstrations nor “assumed” functionality.
7 TERM
This Agreement shall come into effect upon the Effective Date and:
7.1 In the event that the Client has acquired the licence for the Software as set out in the Order, then:
7.1.1 the licence granted in terms of clause 2.1 shall continue for the duration of copyright in the Software System;
7.1.2 the Maintenance Services shall endure for the period set out in the Order.
7.2 In the event that the Client elects to rent the licence and/or subscribe for the use of the Software as set out in the Order, then:
7.2.1 the licence granted in terms of clause 2.1 and maintenance services shall continue for the duration of the rental period
7.3 Implementation services as contemplated in 6 shall endure until the Go Live Date
8 PAYMENT
8.1 For avoidance of doubt, the Fees include all amounts due relating to the granting of the licence to Use the Software System, the Implementation Services, the Product Developments and the Maintenance Services.
8.2 The Fees are due and payable to Fusion Software in full upon presentation of a valid VAT invoice and are payable as indicated in the Order. Without prejudice to Fusion Software other rights hereunder or under Applicable Laws, Fusion Software shall have the right to impose interest at 2% (two percent) above the current prime interest rate, as charged by Fusion Software’s bankers, (First National Bank) from time to time, calculated annually compounded monthly, on invoices that are not in dispute and are more than 30 (thirty) days overdue.
8.3 All amounts paid by Client to Fusion Software shall be made free and clear of any present or future income deductions, set-offs, withholding tax, fees or other levies.
8.4 All fees and rates will be subject to annual escalation during the currency of this Agreement by the CPI on each anniversary of the date of the Order
8.5 Fusion Software reserves the right to suspend any and/or all Maintenance Services where where fees are not up to date and to charge the Client:
8.5.1 An initiation fee on opening the Client’s account;
8.5.2 A default administration fee should the Client’s account be in arrears or should the Client be in breach of the payment terms contained in this Agreement;
8.5.3 Any collection costs that Fusion Software may incur in enforcing the Client’s monetary obligations under this Agreement, including all collection charges, tracing fees and legal charges, to be calculated on the attorney and own client scale, alternatively in accordance with the costs allowed by the Attorney’s Act, Supreme Court Act, Magistrates Court Act and Debt Collectors Act to the extent that the NCA is applicable;
8.5.4 All costs associated with the handing over of the Client’s account to a debt collection agency for recovery of arrear amounts;
8.5.5 A transaction based service fee as determined by Fusion Software from time to time, which shall be debited to the customer’s account for cheques issued by the Client and returned by the bank for whatever reason, or for debit orders that are not processed by the bank due to a lack of funds.
8.6 Fusion Software reserves the right, by giving reasonable notice to the Client at any time before delivery and installation of the Software System, to increase the price of the Products to reflect any increase in the cost to Fusion Software which is due to any factor beyond the control of Fusion Software (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Software System which is requested by the Clien, or any delay caused by any instructions of the Clien or failure of the Clien to give Fusion Software adequate information or instructions.
9 DOMICILIUM AND NOTICES
9.1 The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum, the serving of any process, at the addresses specified in this contract.
9.2 Either Party shall be entitled from time to time, by giving written notice to the other, to vary its physical domicilium to any other physical address (not being a post office box or poste restante) withinSouth Africa, to vary its postal domicilium to any other postal address withinSouth Africa and to vary its facsimile domicilium to any other facsimile number.
9.3 Any notice given or payment made by either Party to the other (“addressee”) which is –
9.3.1 delivered by hand between the hours of 09:00 and 17:00 on any Business Day to the addressee’s physical domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery;
9.3.2 delivered by courier between the hours of 09:00 and 17:00 on any Business Day to the addressee’s physical domicilium for the time being shall be deemed to have been received by the addressee on the 2nd Business Day after the date of delivery;
9.3.3 posted by prepaid registered post to the addressee’s postal domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the 14th (fourteenth) day after the date of posting; and
9.4 Any notice given by either Party to the other which is successfully transmitted by facsimile to the addressee’s facsimile domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the day immediately succeeding the date of successful transmission thereof.
9.5 This clause 9 shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause.
9.6 Whilst the Parties may correspond via email during the currency of this Agreement for operational reasons, no formal notice required in terms of this Agreement, nor any amendment or variation to this Agreement may be given or concluded via email.
10 WARRANTIES
10.1 Fusion Software warrants that the Software System will perform the functions specified in the Documentation; upon written notification from the Client, Fusion Software will promptly provide replacements or corrections to any part of the Software System which do not so perform. This warranty shall not apply if the problem has been caused by unauthorised amendment to the Software System by incorrect Use, or incorrect implementation resulting from a failure by the Client to execute its responsibilities in accordance with the available Software System application guidelines; or the Client operating on a release of the Software System older than two prior Main Releases. The Clientacknowledges that the Software System is designed to operate on the Computer System and the Parties acknowledge that the warranties given by Fusion Software are conditional upon the procurement and maintenance by the client of the Computer System in accordance with such configuration.
10.2 Fusion Software warrants that it is the rightful owner or the lawful licensor of the Software System, and that it has the right to licence the Use of the Software System.
10.3 Fusion Software warrants that the Product Developments, Corrections and Enhancements supplied with the Software System shall be compatible with future Main Releases of the Software System as it evolves year after year.
10.4 Fusion Software warrants that: i) all services to be performed by Fusion Software shall be performed by suitably qualified personnel; ii) Fusion Software have the necessary skills and expertise to render the Maintenance Services; and iii) the Software System shall, as at the Effective Date be free of any malicious or damaging software code and that it shall not knowingly introduce any malicious or damaging software code into the Software System. For the purposes of clarity, licence keys shall not be deemed to be malicious or damaging software code.
10.5 The warranties stated above are limited warranties and are the only warranties made by Fusion Software. The stated express warranties are in lieu of all liabilities or obligations of Fusion Software for damages arising out of or in connection with the delivery, use or performance of the Software System.
11 THIRD PARTY CLAIMS
11.1 Fusion Software shall indemnify the Client and hold it harmless against any claim or action legally founded (including compensation of reasonable legal fees and expenses) based on a claim that the Use of the Software System or Product Developments or a part thereof infringes a patent, copyright or other proprietary right of a third person enforceable in the Authorised Site. The Client agrees that it will notify Fusion Software promptly in writing of any such claim and grants Fusion Software the right to control the defence and/or disposition of such claim, and shall take all immediate and necessary steps, to the extent permissable in law to substitute itself as the defendant in any such action. In the event of such substitution not being possible, then and in such an event Fusion Software shall conduct any defence and/or disposition of such claim in consultation with the Client and shall add itself as a third-party to any litigation instituted against the Client.
11.2 If as a result of any such claim, as specified in clause 11.1 above, the Client is permanently precluded from using the Software System, Fusion Software at its own expense shall procure for theClientthe right to continue to use the Software System and/or provide a replacement and/or modification for the Software System so as to settle such claim. If modification of the Software System is not reasonably practical, Fusion Software may discontinue and terminate this Agreement upon written notice to Client and shall refund to theClient all licence fees paid to fusion Software under this Agreement, unless the Client notifies Fusion Software in writing prior to receiving such refund that it intends to claim damages instead of receiving a refund, in which event that the Client shall not receive a refund and may proceed to claim damages incurred, provided that it may only claim direct loss arising from any such claim.
11.3 The foregoing states the entire liability of Fusion Software for the infringement of any copyrights, patents or other proprietary rights of a third person by the Software System or Product Developments or part thereof, and the Client hereby expressly waives any other liabilities on the part of Fusion Software arising there from.
12 LIMITATION OF LIABILITY
12.1 Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, and subject to the provisions of clause 12.2, Fusion Software’s maximum liability for general and/or direct damages for any breach of this Agreement or any wilful or negligent conduct or omission arising during the course and scope of fulfilling its obligations in terms of this Agreement, shall be limited to an aggregate amount of all the Fees paid by the Client to Fusion Software during the 12 (twelve) month period preceding the date on which the relevant cause of action first arose. Such maximum amount shall be an aggregate amount for all claims thus arising.
12.2 Neither Party shall be liable for any loss of profits, goodwill, business, clients, contracts, revenue, the use of money, contractual penalties imposed by third parties, anticipated savings or data; or any special, indirect or consequential loss and such liability is excluded whether it is foreseen, foreseeable, known or otherwise. For the purposes of clarity it is recorded that the provisions of this clause 12.2 apply whether such loss is direct, indirect, consequential or otherwise, but shall not apply to any claim by Fusion Software in respect of any fees payable by the Client for services rendered.
12.3 Notwithstanding the aforegoing, neither Party shall be precluded from recovering damages from the other Party if such damages resulted from the wilful illegal actions and/or gross negligence of the other Party.
The Parties undertake for a period of 24 (twenty-four) months from the Effective Date not to induce or encourage any employee of the other or their partners participating in this project to accept an employment offer with that Party.
14 NON-DISCLOSURE
14.1 For the purposes of this Agreement the Confidential Information of Fusion Software shall mean (a) the Software System and Product Developments, including all specifications, (b) any documents including but not limited to the Documentation; (c) the terms and conditions of this Agreement; and the Confidential Information of the Client shall mean (a) all information concerning the Client’s technical operations including, without limitation, the computer systems, equipment and facilities used by or on behalf of the Client in relation to its business and (b) the Client’s financial, business, commercial other information or that of its customers or contacts. Confidential Information shall not include information that is or comes in to the public domain or the possession of the receiving party other than by a breach of this clause 14.
14.2 Each Party agrees that it shall not sell, transfer, publish, disclose, display or otherwise make available to any third-party the Confidential Information of the other without the prior written consent of the other. Each Party agrees to secure and protect the Confidential Information of the other and to take appropriate action by written agreement with its employees, agents or subcontractors who are permitted access to such Confidential Information to satisfy its obligations hereunder.
14.3 Each Party further agrees that it shall promptly notify the other as soon as it becomes aware of any breach of confidentiality obligations pursuant to this Agreement and give the other all reasonable assistance in connection with the investigation of same. Each Party shall use its best efforts to assist the other in identifying and preventing any unauthorised use or disclosure of any portion of the Confidential Information of the other disclosed pursuant to this Agreement. Neither Party shall disclose any Confidential Information of the other to any third party unless it has (a) obtained the prior written consent of that Party (which, in the case of disclosure to professional advisers, including third party software maintainers or developers, shall not be unreasonably withheld or delayed) and (b) procured that the third party has executed a confidentiality and non-disclosure agreement directly with the other Party on substantially the same terms and conditions as the confidentiality agreement in Schedule 6.
14.4 The obligations and undertakings relating to confidentiality and non-disclosure, whether contained in this clause or elsewhere in this Agreement, shall survive the termination of this Agreement for three (3) years.
14.5 The Client shall permit authorised representatives of Fusion Softwareat all reasonable times to audit the Client’s Use at the Authorised Site to determine that the provisions of this Agreement are being faithfully performed. All costs associated with the audit shall be the responsibility of Fusion Software.
14.6 Both Parties shall promptly notify each other if it becomes aware of any breach of confidentiality relating to the confidential information of the other Party’s proprietary information and give each other all reasonable assistance in connection with the investigation of same.
14.7 Either Party agrees not to disclose any information that is not available in the public domain.
15 BREACH
15.1 Should either Pparty (“the Defaulting Party”) –
15.1.1 fail to pay any amount which it may owe to the other Party (“Aggrieved Party”) on due date; or
15.1.2 breach any of the terms and conditions (other than a breach as contemplated in clause 15.1.1) of this Agreement, all of which are deemed to be material; or fail to comply with a duty provided for in this Agreement or the schedules hereto: –
15.1.2.1 which breach or failure is incapable of being remedied: or
15.1.2.2 which breach or failure is capable of being remedied, and the Defaulting Party fails to remedy such breach, within fourteen days after receipt of a written notice from the Aggrieved Party calling upon it to do so; or
15.1.2.3 consistently and materially breaches any of the terms of this Agreement, all of which are deemed to be material, in such a manner as to reasonably justify the Aggrieved Party in holding that the Defaulting Party’s conduct is inconsistent with the Defaulting Party’s intention or ability to carry out the terms of this Agreement, or should the Aggrieved Party notify the Defaulting Party in terms of clause 15.1.2.2 hereof to remedy any breach of this Agreement more than two times during any 6 (six) month period of the duration of this Agreement,
then, in any such event, the Aggrieved Party shall be entitled, without prejudice to any other rights which it may have in terms of this Agreement or in law, on account thereof, to claim immediate specific performance of all of the defaulting party’s obligations or to cancel this Agreement with immediate effect, and to recover from the defaulting party all damages of whatsoever nature it may have suffered on account of the Defaulting Party’s breach, subject to the provisions of clause 12.
16 TERMINATION
16.1 Either Party may terminate this Agreement in the event of a material default by the other Party as provided for in clause 15.
16.2 Either party may terminate this Agreement if:
16.2.1 the other party becomes insolvent;
16.2.2 ceases to do business, or wilfully conceals material information which it is obliged to supply to the other;
16.3 Upon expiration or termination of this Agreement, all rights of the Client to the Software System and Product Development will cease and the Client will immediately return to Fusion Software the Software System and product developments with all copies, portions, Documentation, reproductions, updates, modifications and developments.
16.4 The Client will also immediately delete all copies of the Software System and Product Development from all CPU’s and from any storage device on which the Client has placed or permitted others to place copies of the Software System and Product Development in whole or in part.
16.5 Exercise of the right of termination afforded to either Party shall not prejudice legal rights or remedies either Party may have against the other in respect of any breach of the terms of this Agreement.
17 FORCE MAJEURE
17.1 If either Party (“Affected Party”) is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of an event of force majeure, then the affected party shall be relieved of its obligations hereunder during the period that such event continues (and for so long as the Affected Party is so prevented from fulfilling its obligations, then the corresponding obligations of the other Party shall be suspended to the corresponding extent), and the Affected Party shall not be liable for any delay and/or failure in the performance of its obligations under this Agreement during such period, provided that if the force majeure event continues for a period longer than fourteen days, either Party may cancel this Agreement.
17.2 An event of “force majeure” shall mean any event of circumstance whatsoever which is not within the reasonable control of the Affected Party including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, the downtime of any communications line, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority and any court order.
18 NON-ASSIGNMENT
Neither Party may assign or transfer its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the prior written consent of the other Party, whose consent shall not be unreasonably withheld or delayed.
19 ENTIRE AGREEMENT
19.1 This Agreement together with the attached schedules constitute the complete and exclusive software license and maintenance agreement between the Parties as to the subject matter hereof and supersedes all previous agreements, negotiations, understandings and discussions of the Parties.
19.2 Each Party hereby acknowledges that it has not entered into this Agreement in reliance upon any representation made by the other Party but not embodied herein.
19.3 This Agreement may not be modified or altered except by a written agreement executed by both parties.
20 ACTION
No action either under statutory law, common law, delict or contract, regardless of form, arising out of this Agreement shall be brought by either Party more than 3 (three) years from the date the claimant receives knowledge of the damage.
21 GENERAL TERMS
21.1 This Agreement is governed by South African Law.
21.2 Subject to interim or urgent relief, any dispute or difference arising between the Parties relating to or arising out of this Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the dispute shall in the first instance be referred to the Parties’ senior executives for resolution. In the event of the dispute not having been resolved within seven business days of the date of such referral (or such longer period as the Parties’ senior executive may agree in writing), the dispute or difference will be referred for arbitration to the Arbitration Foundation of Southern Africa (“AFSA”) in terms of AFSA’s arbitration rules for the time being in force.
21.2.1 This clause shall constitute each Party’s irrevocable consent to the arbitration proceedings, and no Party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause.
21.2.2 The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Expedited Rules of AFSA should any Party by written notice given to the other require the arbitration to be held on an urgent basis. In such event, the Parties agree to apply jointly to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration. Such arbitration proceedings will be held in Johannesburg.
21.2.3 Each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings-
21.2.3.1 shall be final and binding on each of them; and
21.2.3.2 will be carried into effect; and
21.2.3.3 be made an order of any court to whose jurisdiction the parties are subject.
21.2.4 Notwithstanding the aforegoing, nothing in this clause shall be construed as precluding either Party from applying to the court for a temporary interdict or other relief.
21.3 The section headings used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement.
21.4 If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect unless it is held that the Agreement would not have been executed without this unenforceable provision.
22 REFERENCE
Both Parties agree that the other Party may use or refer to the name, logo, trademark, or other symbol of the other, provided such other Party has given its prior, written consent thereto, in advertising or publicity releases or publicly distributed materials, including, without limitation, the existence of the contract, customer lists or links to the other Party’s website, information regarding the signing of the contract, the number of user Licences signed, the modules and business type.
23 ESCROW
In the event that the Client has acquired the license for the Software as set out in the Order, then The Parties shall, at the request of the Client, conclude an escrow agreement with a reputable escrow agent for the safe retention, update and release of the source code of the Software System and the cost thereof shall be borne by the Client.
FUSION SOFTWARE
SCHEDULE 1: MAINTENANCE SERVICES
This Schedule sets out the basis on which Fusion Software will provide Maintenance Services to the Client.
1.1. The following Services are included in Maintenance Services:
• Access to support desk call logging
• Code maintenance
• System bug fixes
• New releases and upgrades (at least one major release per year)
• Approved change requests which form part of the next planned release
1.2. These services will be provided as follows:
• Via email on support@fusionsoftware.co.za (our preference); or
• Telephonically; or
• Remote access via VPN
At the following contact number 0861 387466
During the following times:
08h00 – 17h00 (South African Time) on Business Days.
1.3. Where system bugs are identified by Fusion Software and such bugs shall be determined by Fusion Software at their sole discretion, then Fusion Software shall:
• Resolve, or provide a workaround for any Critical Failure on the number of Business Days required to remedy any Critical Failure, with all reasonable effort within 48 (forty-eight) working hours of being informed by a Designated Operator unless otherwise stipulated.
• Programmatically repair the Software, with reasonable effort within 10 (ten) Business Days of Critical Failure unless Fusion Software provides Client with notification.
• Resolve Functionality Failure within 15 (fifteen) Business Days where applicable unless Fusion Software provides Client with notification
1.4. The extent and timing of the upgrade shall be at the discretion of Fusion Software
1.5. The above-mentioned Maintenance Services shall be provided to the Designated Operator who shall serve as the primary contact person at the Client’s site.
1.6. All other services are excluded from the Maintenance Services.
1.7. Fusion Software offers additional services post the supply and installation of the Products. The Client has the option to enter into a Service Level Agreement with Fusion Software for the future and ongoing support of the Products. Should the Client so elect it shall then enter into a separate Service Level Agreement.
1.8. The Client is obliged to:
• Not to make any modifications to the Software System unless agreed to in writing by Fusion Software
• to maintain the Computer Hardware and provide a stable operating environment for the Software System
• to ensure that the Designated Operators attend regular review meetings with Fusion Software.
• ensure that the Designated Operator provides full, complete and thorough information when reporting a system issue.
• To understand that the internal buy-in and usage of the software system is the Client’s responsibility.
