WHEREBY IT IS AGREED AS FOLLOWS:
1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof. Unless a contrary intention clearly appears –
1.1. words importing –
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporated) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely –
1.2.1. “Agreement” means this software license and its annexures (if any), as amended from time to time;
1.2.2. “Business Day” means any day other than a Saturday, Sunday, or official public holiday in the Republic;
1.2.3. “Confidential Information” means:
18.104.22.168. any information of whatever nature, which has been or may be obtained by either of the Parties from the other, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions of ideas;
22.214.171.124. analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition;
1.2.4. “Copyright” means all rights of copyright whether existing now or in the future and to the software including initial drawings, sketches, flow charts and designs relating thereto;
1.2.5. “Date of Signature” means the date of signature of this agreement by the
Party signing last;
1.2.6. “Documentation” means any and all of the Software’s operator's and user's manuals, training materials, guides, commentary, listings and other materials for use in conjunction with the Software, as set forth in “Schedule B” annexed hereto ;
1.2.7. “Domicilium” means the respective domicilium citandi et executandi as chosen by the Parties to this Agreement for all purposes concerning this Agreement;
1.2.8. “Effective Date” means the Date of Signature;
1.2.9. “Initial Period” means the period commencing on the Effective Date and terminating 30 (thirty) calendar days thereafter, being the period within which the Licensor must deposit the Software with the Licensee;
1.2.10. “Intellectual Property” means all forms of intellectual property rights, including all Copyrights, patents, trademarks (including without limitation logos and trade names), domain names, designs and other forms of intellectual property and all confidential information, know-how and trade secrets (whether registered or not) which are the proprietary of the Licensor;
1.2.11. “Licence Fee” means the amount payable by the Licensee to the Licensor ;
1.2.12. “Licensor” means Anatomy Church Solutions (PTY) LTD (Registration No.: CK 2015/202340/07)
1.2.13. “Licensee” means ;
1.2.14. “Notice” means written notice by either a Party to the other, delivered at its
1.2.15. “Parties” means collectively the Licensor and the Licensee and “Party” shall mean either one of them as the context may provide;
1.2.16. “Release Event” means:
126.96.36.199. the final liquidation of the Licensee or any similar legal process against it;
188.8.131.52. inability or unwillingness of the Licensee to support and/or maintain the Software;
184.108.40.206. discontinuance of the maintenance and support of the Software by the Licensee;
1.2.17. “Release Fee” means a specified value payable within 7 Business Days from date of submission of Notice of Release Event;
1.2.17. “Republic” means the geographic territory comprising the Republic of South
Africa and its territorial waters;
1.2.18. “Site” means the Licensee’s premises at which the Software shall be installed;
1.2.19. “Software” means the Anatomy Web and Application based softwares developed by the Licensor;
1.2.20. “Software Specs” means the Software specifications;
1.2.21. “Source Code” means all relevant commentary, including explanation, flow charts, algorithm and subroutine descriptions, memory and overlay maps and other documentation of the source code for the Software program;
1.2.22. “Dispute” means a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other.
1.2.23. “Dispute Period” means the period in which a “dispute” takes place, starting when the “dispute” has been acknowledged, either verbally or in written form, by both sides.
1.3. any reference to an enactment is to that enactment as at the Date of Signature hereof and as amended or re-enacted from time to time;
1.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement;
1.5. when any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
1.6. where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
1.7. expressions defined in this agreement shall bear the same meanings in schedules or annexures to this agreement which do not themselves contain their own definitions;
1.8. reference to day/s, month/s or year/s shall be construed as Gregorian calendar day/s, month/s or year/s;
1.9. the use of any expression in this agreement covering a process available under South African law such as a winding-up (without limitation eiusdem generis) shall, if any of the parties to this agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
1.10. where any term is defined within the context of any particular clause in this agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement, notwithstanding that that term has not been defined in this interpretation clause;
1.11. the expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
1.12. the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply;
1.13. any reference in this agreement to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party's liquidator or trustee, as the case may be;
1.14. the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s;
1.15. the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.
It is recorded that-
2.1. the Licensor is the developer and legal and beneficial owner of the
2.2. the Licensee requires that the Software together with its Source Code be disclosed to the Licensee and installed on certain of its computers for the duration of this Agreement;
2.3. The Parties now wish to conclude a formal Agreement to record the terms and conditions under which the Licensor shall provide its services and disclose its Software to the Licensee.
3. COMMENCEMENT AND DURATION OF THIS AGREEMENT
3.1. This Agreement shall commence on the Effective Date and, subject to the provisions of this Agreement, shall continue for a period of 1 (one) year(s), subject to review by the Parties, unless terminated in terms of clause 3.2 or clause 18.
3.2. Notwithstanding clause 3.1, either Party hereto shall be entitled to terminate this Agreement at any time and without cause or liability, by providing the other with no less than 60 (sixty) Business Days prior Notice to that effect.
4. GRANT OF LICENCE
In exchange for the payment by the Licensee to the Licensor of the Licence Fee, the Licensor hereby grants to the Licensee licence to –
4.1. use the Software and the Documentation, subject to the terms and conditions set out in this Agreement; and
4.2. make as many copies of the Documentation as it may deem necessary for it to be able to exercise the rights granted in this clause 4.
5. PAYMENT OF LICENCE FEE
5.1 As consideration for the Licence granted by the Licensor to the Licensee, the Licensee shall pay to the Licensor the Licence Fee.
5.2 The Licensor reserves the right to suspend services for accounts 60 days overdue. Accounts under suspension for a further 60 days are subject to termination.
6. SOFTWARE SPECIFICATIONS
The Software shall consist of all the modules and/or components which will perform the functions and comply with the proposals and specifications.
7. SOFTWARE DELIVERY AND INSTALLATION
7.1 Within 3 (three) Business Days of the Effective Date, the Licensor shall provide to
Licensee a access to or a copy of the Software and the Documentation.
7.2 Within 3 (three) Business Days of the delivery for the Software as contemplated in this clause 7, the Licensee shall install and test the Software on the Hardware. The successful completion of Licensee’s Software testing shall be deemed the Licensee's acceptance of the Software.
7.3 In the event that the Software fails to satisfy the Licensee’s testing procedures, or fails to function properly or in conformity with the Documentation, then Licensor shall have 30 days within which to correct any such defect and cause the Software to successfully pass all such tests or function as aforesaid, failing
which the Licensee may elect to cancel this Agreement and Licensor shall immediately refund all sums previously paid to it by Licensee hereunder.
The License Fee includes 4 hours (or equivalent) of training of the Licensee's employees on the use and operation of the Program, excluding instruction in any necessary conversion of Licensee's data for such use. Any additional training required by the Licensee shall be billable at the rates as set forth hereto.
The Licensor hereby warrants and represents to Licensee as follows:
9.1 The Licensor is the owner of the Software and/or otherwise has the right to grant to the Licensee the Licence without violating any rights of any third party, and there is currently no actual or threatened law suit by any such third party based on an alleged violation of such right by the Licensor;
9.2 The Software is fully capable of and shall satisfy the Licensee’s business requirements, and is in all material respects fit for such intended uses;
9.3 for a period of 1 (one) year from the date of the Licensee's acceptance of the Software (the "Warranty Period") and for the term of any Software Maintenance Contract, the Program shall (i) be reasonably free from defects in material and workmanship under normal use and remain in good working order, and (ii) function properly and in conformity with the warranties herein and in accordance with this Agreement and with the Documentation including updates or new releases to such system software and other software, and interface with other programs as required , and the Documentation shall completely and accurately reflect the operation of the Program;
9.4 for the duration of the Warranty Period, and for the term of any Software Maintenance Contract, with respect to support incidents logged at the Anatomy Service Desk, the Licensor shall provide a response, whether automated or by means of a Service Desk Agent within four (4) business hours of the support incident being logged in accordance with the Anatomy Support Call Logging Procedure and in accordance with any special provisions made in the Service Contract held by the Licensee, provided that the Licensor reserves the right to withhold Support Services should the Licensee’s account be in arrears and until such time as the account is brought up to date.
9.5 during the Warranty Period and for the term of any Software Maintenance Contract, the Software, in conjunction with the Hardware, can and shall maintain, use, update, and otherwise process the number of transactions as per the hardware capabilities, without adversely affecting its response time or other performance;
9.6 for the duration of the Warranty Period and for the term of any Software Maintenance Contract, the Program, in conjunction with the Hardware can and shall maintain the uptime or reliability standards;
9.7 each of its employees or subcontractors assigned to perform any work hereunder, and under any Software Maintenance Contract, shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be so performed; and they will give heed to all reasonable instructions of the Licensee with regard to security and office administration.
9.8 it shall, for the Warranty Period and the term of any Software Maintenance Contract, maintain the Software in good working order, keep it reasonably free from defects in material and workmanship, and remedy any failure of the Software to perform in accordance with this Agreement, including the warranties set forth herein, the Schedules, or which impairs Licensee's use thereof, or any other malfunction, defect or non-conformity in the Software, which shall be provided as follows: Licensor agrees to respond to any request for service due to a failure, malfunction, defect or non-conformity by telephone response by a qualified and knowledgeable representative within twenty-four (24) hours of receipt of such request and such representative shall render continuous effort, via telecommunications, to remedy the failure, malfunction, defect or non-conformity. If such failure, malfunction, defect or non- conformity cannot be remedied by such means within 24 working hours of receipt of such request, Licensor shall immediately send at least one qualified and knowledgeable representative to Licensee's Site and said representative(s) will furnish continuous effort to remedy the failure, malfunction, defect or non-conformity.
10.1 For the during the Warranty Period and for the term of any Software Maintenance Contract, the Licensor shall promptly notify Licensee of any defects or malfunctions in the Software or Documentation of which it may become aware and shall promptly correct same and provide the Licensee with corrected copies of such Software and/or Documentation, without additional charge.
10.2 The Licensor shall provide to the Licensee, without additional charge, copies of the Software and Documentation revised to reflect any enhancements to the Software made by Licensor during the Warranty Period and the term of any Software Maintenance Contract. Such enhancements will be deemed to include all modifications to the Software which increase the speed, efficiency or ease of operation of the Software, or add additional capabilities to or otherwise improve the functions of the Software.
10.3 During the Warranty Period and for the term of a valid Software Maintenance Contract, the Licensor shall provide to the Licensee, all reasonably necessary telephone or written consultations requested by the Licensee in connection with its use and operation of the Software or any problems therewith on a 8x5 basis
10.4 For the duration of a valid Premium Software Maintenance Contract, the Licensor shall provide to the Licensee, all reasonably necessary telephone or written consultations requested by the Licensee in connection with the use and operation of the Software or any problems therewith on a 24x7 basis.
11. SOFTWARE MODIFICATIONS
The Licensee shall not, without the express written approval from the Licensor at the Licensor’s discretion, independently modify the Software for its own use, through the services of its own employees or of any independent contractors. Where approved by the Licensor, any Licensee modifications shall not be automatically subject to the Licensor's warranty or maintenance obligations in terms of this Agreement unless expressly stated in writing by the Licensor. The Licensee shall be deemed to be the owner of any such modifications which shall be deemed to be confidential information of Licensee, provided that the Licensee will not be deemed to have obtained any right thereby to distribute the Program. The Licensor shall not incorporate any such modifications into its software for distribution to third parties unless it first agrees to pay Licensee a reasonable royalty, pursuant to such reasonable terms as the parties may agree upon.
12. LICENSOR’S MARKS
The Licensee agrees that any copies of the Program or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not disclose or distribute same to any third party without Licensor's prior written consent. Notwithstanding the preceding sentence, Licensee may add its own copyright or other proprietary notice to any copy of the Program or Documentation which contains modifications to which Licensee has ownership rights pursuant to this Agreement.
13. INTELLECTUAL PROPERTY RIGHTS
Neither Party shall be entitled to publish to any third Party the fact of or any information concerning the conclusion of this Agreement or the terms hereof without the consent of the other (which consent shall not be unreasonably withheld) or save as required by law or to implement this Agreement.
Neither Party shall be entitled to assign its rights and or obligations hereunder without the prior written consent of the other.
If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scrip to but without affecting, impairing or invalidating any of the remaining provisions of this Agreement which will continue to be full of force and effect.
17.1. In the event of any dispute or differences 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 being resolved within seven (7) Business Days of the date of such referral (or such longer period as the Parties’ senior executives may agree in writing), the dispute or difference will be referred for arbitration to the Arbitration Foundation of South Africa (“AFSA”) in terms of AFSA’s arbitration rules for the time being in force.
17.2. The arbitrator shall be if the question in issue is:
17.2.1. primarily an accounting matter, a practicing accountant with no less than 5 (five)
years' standing agreed upon between the Parties;
17.2.2. primarily a legal matter, a practising senior advocate with no less than 10 (ten)
years' standing agreed upon between the Parties;
17.2.3. any other matter an independent person agreed upon between the Parties.
17.3. The arbitration shall be held, subject to the provisions of this clause, in
Johannesburg or as determined by the Parties from time to time.
17.4. This clause shall constitute each Party’s irrevocable consent to the arbitration proceedings, no Party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause.
17.5. Each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings –
17.5.1. shall be final and binding on each of them;
17.5.2. will be carried into effect; and
17.5.3. be made an order of any court to whose jurisdiction the Parties are subject.
17.6. Not withstanding the a foregoing, nothing in this clause shall be construed as precluding either Party from applying to court for a temporary interdict or other relief of an urgent nature, pending the decision or the award of the arbitrator in terms of this clause 14.
18.1. Should either Party (“Defaulting Party”) breach any provisions of this Agreement and fail to remedy such breach within 7 (seven) Business days of receiving written notice from the other party (“Aggrieved Party”) requiring the Defaulting Party to do so, then the Aggrieved Party shall be entitled without prejudice to its other rights in law to cancel this Agreement or claim specific performance of the Defaulting Party’s obligations, whether or not due for performance, provided that if the Defaulting Party commits two or more breaches of any material provisions of this Agreement in any three 3 (three) month period of this Agreement, the Aggrieved Party shall be entitled without prejudice to any of its rights or remedies in law or under this Agreement to terminate this Agreement forthwith by Notice in writing to the Defaulting Party.
18.2. The termination of this Agreement, for whatsoever reason, shall not affect the rights of either of the Parties that may have accrued prior to termination.
19. RELATIONSHIP OF PARTIES
19.1. The Parties shall at all times show to one another the utmost good faith in their dealings with each other, but such duty of good faith shall not:
19.1.1. constitute a partnership between the Parties;
19.1.2. constitute one Party to be the agent of another unless otherwise expressly agreed between them;
19.2. Each of the Parties undertake at all times to do all such reasonable things, perform all such reasonable actions and take all such reasonable steps as may be open to it and necessary for or incidental to the implementation of the terms and conditions of this Agreement.
20. CONFIDENTIAL INFORMATION
20.1. The Parties respectively agree to use the Confidential Information solely for the purposes contemplated in this Agreement and to disclose it only to officers, employees, consultants and professional advisors who have a need to know.
20.2. Nothing in this clause shall prohibit any Party from utilising information which it is able to show:
20.2.1. was lawfully in its possession at the time of receipt;
20.2.2. was at the time of receipt part of the public domain or lawfully thereafter became part of the public domain;
20.2.3. was lawfully received from a third party entitled to possess and disclose that information.
21. FORCE MAJEURE
21.1. If any Party to this Agreement is prevented from carrying out its obligations (“Affected Party”) as a result of an act of God, strikes, fire, riot, war (whether declared or not), power outages, embargoes, export control, international restriction, any order of any international authority, any court order, any requirements of any other competent authority, or any circumstance whatsoever which are not within the Affected Party’s reasonable control, then to the extent that and for so long as the Affected Party is so prevented from performing its obligations in terms of this Agreement, this Agreement will be deemed to have been suspended.
21.2. As soon as the Affected Party becomes aware that an act of force majeure is likely to cause a suspension to this Agreement, it shall give notice in writing to the other Parties, estimating the approximate duration of such suspension. The estimate shall not be binding and the Affected Party shall give Notice to the other Parties as soon as the force majeure ceases to operate.
22. GOVERNING LAW AND JURISDICTION
This Agreement (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the Parties in terms of and arising out of the conclusion, breach and termination of the provisions of this Agreement), shall be interpreted and governed in all respect by the laws of the RSA. The Parties hereby submit to the non-exclusive jurisdiction of the South Gauteng High Court
23.2. Each of the Parties shall be entitled from time to time, by written Notice to the other, to vary its Domicilium to any other address which is not a post office box or poste restante.
23.3. Any Notice given and any payment made by either Party to the other (the “Addressee”) which –
23.3.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its Domicilium to which post is delivered shall be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
23.3.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its Domicilium shall be deemed to have been received on the day of delivery; or
23.3.3. sent by telefax to its chosen telefax number stipulated in clause 24.1, shall be deemed to have been received on the date of despatch (unless the contrary is proved); or
23.3.4. sent by e-mail to its chosen e-mail address stipulated in clause 24.1, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
24.1. This Agreement constitutes the entire record of the agreement between the Parties in regard to the subject matter hereof.
24.2. No Party shall be bound by any express or implied term, undertaking, representation, warranty, promise or the like not recorded herein.
24.3. No alteration, variation or cancellation by agreement of, addition or amendment to, or deletion from this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
24.4. No indulgence, extension of time, relaxation or latitude which any party ("Grantor") may show, grant or allow to another or the others ("Grantees") shall constitute a waiver by the Grantor of any of its rights and the Grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the Grantees which may have then already arisen or which may thereafter arise.
24.5. The provisions of this Agreement shall be binding upon the successors-in- title and assigns of the Parties. Accordingly, the rights and obligations of each party arising out of this Agreement shall devolve upon and bind its legal and personal representative/s, successors in title and permitted assigns.
24.6. Save as expressly provided to the contrary herein, each paragraph, clause, term and provisions of this Agreement and any portion thereof shall be considered severable and if, for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding Judgment issued by any court, it shall not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the Parties hereto.
The setup process of Anatomy® includes the following services for a once off fee:
• Consultation into a needs assessment
• Implementation & Initialisation of a fresh instance of Anatomy®
• Evaluation and importing of existing data into Anatomy®
• System Training of 4 hours either onsite or by webinar
Billing is generated monthly in advance.
• Pricing is valid for the duration of the agreement after which pricing may be revised.
• License validity is dependent on up-to-date payment of license fees.
• Final costs may vary dependent on chosen options & agreements in addition to standard license pricing.
• Pricing is exclusive of VAT
TRAINING FOR EMPLOYEES
Training can be provided to employees according to the following rate table (which may change from time to time):
No of Users
R550 per hr
R695 per hr
R795 per hr