END-USER LICENCE AGREEMENT (hereinafter referred to as “EULA”): IMPORTANT - READ CAREFULLY
This EULA is a legal agreement concluded between you (hereinafter referred to as “you” or “licensee”) on the one hand and BITS HOLDINGS (PTY) LTD a company with limited liability duly incorporated as such in accordance with the company laws of the Republic of South Africa from time to time, its subsidiaries, divisions and affiliates (hereinafter collectively referred to as “the licensor”) on the other for the use of the software product which shall include computer software and associated media and documentation (hereinafter collectively referred to as “licensed software”).
It is specifically recorded that the licensor sells to you the right to use the licensed software and furthermore makes the licensed software available to you subject to you unequivocally and irrevocably accepting the terms of this EULA. By opening the software packaging and/or completing the registration process and/or installing and/or accessing and/or utilizing the licensed software, you agree to be bound by the terms of this EULA.
1. Protection/Ownership. The Licensed Software includes software owned by the following third-parties: 1. Ajax.Net 5.7.22.2 Author: schwarz-interactive.de, Michael Schwarz 2. HttpCompress 6.0 Author: blowery.org 3. HierarGrid 2.1.0.0 Author: Denis Bauer http://www.denisbauer.com 4. DevShock XMLConverter 0.1.80 Author: DevShock Technologies 5. Excentricx World Controls 1.9 Author: Excentric's World 6. FreeTextbox 3.x Author: FreeTextBox 7. ICSharpCode.SharpZipLibrary 0.6 Author: ICSharpCode 8. MetaBuilders.WebControls.DefaultButtons 1.1.5 Author: MetaBuilders 9. MetaBuilders.WebControls.CheckedListBox 1.0.9 Author: MetaBuilders 10. StrengthControls.Scrolling 1.0.1889.18315 Author: StrengthControls (collectively "Third-Party Owners"). The Third-Party Owners are, in terms of an agreement with the licensor, third-party beneficiaries of this EULA and you agree to be bound to them under all the terms and conditions of this EULA. You also agree to be bound to any separate licence agreement for such software the terms of which are readily ascertainable from the third party owner concerned. The Licensed Software is protected by copyright and other intellectual property laws. The licensor and/or a Third Party Owner, as the case may be, shall retain ownership of the Licensed Software and the copies of the Licensed Software provided herewith. The Licensed Software is licensed to Licensee for use subject to the terms set forth in this EULA.
2. Grant of Licence. Against payment of the prescribed licensing fee the Licensor hereby grants to the Licensee and the Licensee hereby accepts, subject to the terms of this EULA, a non-exclusive, non-transferable right to use only the executable version (no source code) of the Licensed Software for its own internal business purposes. Installation of the Licensed Software entails completion of a registration procedure in which You will be required to enter a registration code(s) provided to You as part of the Licensed Software. You agree not to disclose the registration code provided to You to any third party other than a re-seller duly authorised by the Licensor in writing (hereinafter referred to as a “Reseller”).
3. Scope of Licence. The number of permissible concurrent users of the Licensed Software shall be as reflected in the corresponding purchase order or other order confirmation form received by the Licensor from the Licensee. The number of authorized concurrent users covered by the licence will be stipulated in separate licensing agreements. A remote user accessing the Licensed Software (via a web-enabled product) is considered to be one concurrent user. Nothing in this paragraph shall limit the Licensee from allowing its employees, agents, representatives or the representatives of the Licensee’s parent company, subsidiaries or affiliates, if any, from accessing or using the Licensed Software for the sole purpose of conducting the Licensee’s own internal business; provided, however that the total number of concurrent users does not exceed the number of authorized concurrent users covered by the licence.
4. Additional users. If You wish to expand the number of authorized concurrent users covered by the licence You may purchase additional licences from the licensor or a Reseller. Such added licences shall be subject to the terms of this EULA and will be affected by the provision of additional registration code(s) provided by the Licensor.
5. Transfer. The Licensee may not, without the written consent of the Licensor first having been obtained, re-sell or otherwise transfer or assign in any manner whatsoever the rights and obligations flowing from either this EULA or the license/s provided in respect of the Licensed Software. The discretion to allow a re-sale, transfer or assignment of the relevant license shall fall within the sole and absolute discretion of the Licensor and the Licensee agrees that in the event of the Licensor granting its consent such consent, if granted, shall be subject to any terms and conditions the Licensor may, in its sole and absolute discretion deem appropriate
6. Restrictions. You agree not to copy the Licensed Software except for backup and disaster recovery purposes, or as permitted in the documentation comprising the Licensed Software. If You make copies of the Licensed Software as contemplated above, the original copy of the Licensed Software and all copies that You make may not leave your control and remain the sole and exclusive property of the Licensor and/or a Third Party Owner, as the case may be. You agree that this is a licence only and that no title passes to You. You agree not to challenge the Licensor’s rights in or otherwise attempt to assert any rights, other than those rights afforded you in terms of the relevant license and/or this EULA, in the Licensed Software. You agree that you may not and you may not permit others to disclose, modify or prepare derivative works of the Licensed Software, decompile, translate, disassemble or reverse engineer the Licensed Software or any aspect thereof or use the Licensed Software in any manner that infringes the intellectual property or other rights of another party. You agree not to distribute, rent or lease the Licensed Software or any aspect thereof. You agree not to use the Licensed Software or any aspect thereof for the benefit of another person or entity, including, but without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties. You agree not to use the Licensed Software or any aspect thereof except as expressly permitted under this EULA. You acknowledge that the Licensed Software contains information deemed confidential or otherwise proprietary to the Licensor and/or a Third Party Owner, as the case may be, and You accordingly agree to hold confidential the Licensed Software.
7. Warranty/Remedy/Limitation of Liability. The Licensor warrants that for a period of thirty (30) days from the date the Licensed Software is acquired by you the media on which the Licensed Software resides shall be free from defects that prevent you from loading the Licensed Software on your computer. The Licensor does not warrant that the Licensed Software will meet Your requirements or that the operation of the Licensed Software will be uninterrupted or error free or that all defects will be corrected. This Limited Warranty is void if failure of the media in question resulted from accident, abuse, modification, or misapplication of the media by the Licensee.
If You believe there is a defect in the Licensed Software such that it does not meet the Limited Warranty provided above, You must notify the Licensor in writing within the 30-day warranty period. The Licensed Software is licensed to you “as is” without any warranty of any nature. The Licensor disclaims all other warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose. The Licensor shall not be liable for any damage or loss of any kind arising out of or resulting from your possession or use of the Licensed Software (including data loss or corruption), regardless of whether such liability is based in tort, contract or otherwise. If the aforegoing limitation is held to be unenforceable, the Licensor’s maximum liability to you shall not exceed the amount of the license fees paid by you for the Licensed Software. The remedies available to you against the Licensor are exclusive. Some countries do not allow the limitation or exclusion of implied warranties or liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you.
8. Maintenance and Support. The Licensor shall provide maintenance and/or technical support (including upgrades and enhancements) for the Licensed Software only in the event of a separate agreement having been concluded between the Licensor and you in this regard.
9. Export Control. You may not export, ship, transmit, or re-export the Licensed Software in violation of any applicable law or regulation, including, without limitation, any such law or regulation issued by such other governmental entity which may have jurisdiction over such export.
10. Termination. Your right to use the Licensed Software continues until this EULA is terminated. You may terminate this EULA at any time by destroying all of Your copies of the Licensed Software and removing all licensed software from your computers. This EULA will automatically terminate if You fail to comply with any of the terms of this EULA. Upon termination, You agree to remove all Licensed Software from Your computers, destroy all copies of the Licensed Software, and, upon request by the Licensor, certify in writing Your compliance herewith.
11. Severability. If any of the terms or conditions of this EULA are held to be invalid or unenforceable under any applicable statute or rule of law, the parties undertake to faithfully re-negotiate the term or condition in question in order for it to be rendered enforceable and in order for the nature and import thereof to be as close to the nature and import of the original term or condition as possible; all other terms shall remain unaffected.
12. Whole Agreement. This EULA read together with any order form and/or other order confirmation form received by the Licensor from the Licensee and accepted by the Licensor and/or any written maintenance and support agreement concluded between the Licensor and Licensee shall collectively constitute the entire agreement between You and the Licensor (hereinafter referred to as “the agreement”). No additions to, or modifications of, the agreement shall be binding upon the parties unless reduced to writing and executed by You and by a duly authorized representative of the Licensor.
13. Waiver. No indulgence which any party ("the Grantor") may grant to the other ("the Grantee") shall constitute a waiver of any of the rights of the Grantor who shall not thereby be precluded from exercising any rights against the Grantee which may have arisen in the past or which may arise in the future. 14. Assignability. This EULA shall inure for the benefit of, and is freely assignable to, the successors and assigns of the Licensor.
15. Resellers. If you acquired the Licensed Software through a Reseller, you acknowledge that: (i) payment and delivery terms for the Licensed Software must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and the Licensor regarding the licence rights for the Licensed Software as described above; (iii) the terms and conditions of any purchase order concluded between the Licensee and a re-seller or any other agreement between the Licensee and the Reseller are not binding on the Licensor; (iv) the Reseller is not the agent of the Licensor and is consequently not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any licence or other rights relating in any way to the Licensed Software; and (v) Licensee’s non-payment of any amount due to a Reseller shall constitute a basis for the Licensor to terminate this EULA with immediate effect. The Licensee further acknowledges that the Licensor makes no representation nor gives any warranty with regard to any services provided by any Re-seller and shall not be liable to the Licensee on any basis whatsoever for any actions or omissions on the part of any Re-seller.
16. Applicable Law. The laws of Port Elizabeth, South Africa shall apply in respect of the interpretation and application of the provisions of this agreement.