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Equity Pro Report Terms and Conditions

This End-User Software License Agreement (the “Agreement”) is made and effective as from the Commencement Date

BETWEEN:
Equity Pro (Pty) Ltd (the "Licensor"), a corporation organized and existing under the laws of the Republic of South Africa, with its head office located at:
Unit 3, Sherborne Square,. 5 Sherborne Road, Parktown, 2193
E-mail: equitypro@eess.co.za
Contact Person: Emmanuel Majola
AND:
The Organisation ordering Equity Pro Report as appears from the Order Form on the reverse side of this Agreement and which binds itself to these terms and conditions by the signing of such Order Form (“the Licensee”)

WHEREAS Licensor has developed certain computer software program and related documentation more particularly described in Schedule A hereto (the "Product") and desires to grant the Licensee a license to use the Product.
WHEREAS the Licensee wishes to use the Product under the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the Licensee and Licensor hereby agree as follows:

1. DEFINITIONS

The following definitions shall apply to this Agreement:
Commencement Date” means the date of receipt of payment of the Annual License Fees in respect of Equity Pro, pursuant to the ordering of the Equity Pro Module described in the Order Form.
Order Form” means the Order Form on the reverse side of this Agreement, signed by the duly authorised signatory of the Licensee.
"Product" means the Equity Pro Software program, including all updates, upgrades, improvements thereto and new releases as stipulated herein.
"Install" means the supply to the Licensee by the licensor of the necessary login codes for the Equity Pro Report Module so as to enable the Licensee to access thereto.
"Use" means accessing and utilizing any of the functionalities of the Product on the Web.
Software” means the specific Equity Pro Report Modules of the Product acquired by the Licensee for its usage in terms of the Order Form.
"Territory" means the Republic of South Africa

2. SOFTWARE LICENSE

This License is granted to the Licensee for a period of Three Years against payment of the Annual License Fees as set out in the Order Form and herein.

3. LICENSE FEE

A. As consideration for the Licensee to use the Software granted to the Licensee herein, the Licensee shall pay to Licensor the Annual License fee set out in the Order Form.
B. The payment of Annual License fees shall entitle the Licensee to receive the benefits of all updates and modifications to the Product as and when they are made.

4. LICENSEE’S RIGHTS AND OBLIGATIONS

The Product and Documentation are protected by South African copyright and patent laws and international treaties, Patent No. 2012/06523. The Licensee must treat the Software and Documentation like any other copyrighted or patented material; for example, a book. The Licensee may not:

A. Copy the Documentation.
B. Copy the Software.
C. Modify or adapt the Software or merge it into another program.
D. Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software.
E. Sub-license, rent, lease or lend any portion of the Software or Documentation.

5. REPRESENTATIONS AND WARRANTIES

Licensor hereby represents and warrants to the Licensee that:

A. The Licensor has the authority to enter into this Agreement.
B. The Licensor has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor's obligations under this Agreement.
C. The Licensor is fully aware of the Licensee's business requirements and intended uses for the Software and the Software shall satisfy such requirements and is fit for such intended uses.
D. The Licensor will not enter into any agreement with any third party which would affect the Licensee's rights under this Agreement, or bind the Licensee to any third party, without the Licensee's prior written consent.
E. The Licensee's use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.

6. THE SOFTWARE

The Software shall perform the functions and shall comply with the functionality set forth in the marketing material as well as Schedule A hereto.

7. DOCUMENTATION

The Documentation shall consist of all user, training and other materials, for use in conjunction with the Software, as set forth in Schedule A, annexed hereto. The Licensor shall deliver to the Licensee, as specified below, a PDF copy of the Documentation set forth in Schedule A. The Licensee shall have the right, as part of the license granted herein, to make as many additional copies of the Documentation for its own use as it may determine.

8. MODULE

The Software shall include the Module set out in the Order Form. The Licensor is required to give the Licensee access to such Module as provided for herein.

9. OPERATING ENVIRONMENT

The Software shall be accessible to the Licensor through the following Web Browsers:

  • Google Chrome
  • Firefox
  • Safari

10. PREREQUISITES TO THE LICENSEE BEING GRANTED ACCESS TO SOFTWARE
Unless otherwise agreed in writing, the following are prerequisites to the Licensor granting the Licensee access to the Modules specified in the Order Form:
A. The signing of the Order Form.
B. Payment of the full amount payable in respect of Annual Licensing Fee.

11. SOFTWARE ACCESS

The Licensor shall, within three working days of receipt of payment  furnish the Licensee with:

A. The following information in respect of each such Module:

  1. Module Identity Number
  2. User-Name
  3. Password

B. Instructions on how to access each Module and for users to create their own password
C. An Equity Pro User Manual

12. INCREASING THE NUMBER OF USERS AND SUB-POOLS OPTION

A. Each Module of Equity Pro Report is programmed:

  1. So that two different client Administrators can have access to all its functionalities
  2. A further four different client users can have read-only access

B. The Licensee has the option to, at any time:

  1. Extend the license granted hereunder to include more users
  2. Upgrade Equity Pro Report to any other Module in the Equity Pro Lite Suite
  3. Request more sub-pools to be made available (in the event of the Licensor upgrading to the relevant Equity Pro Lite Module )

C. The costs of adding an extra user or sub-pool, which shall be added to the Annual License fee set out in the Main Agreement, shall:

  1. In the case of additional users, be R300 per year per user per module added
  2. In the case of additional sub-pools, be R 300 per year per sub-pool added to each level per Module

D. The costs of upgrading Equity Pro Report to any other Module in the Equity Pro Lite Suite can be obtained upon request.
E. The amount payable for exercising any of the above options shall be invoiced separately, and access given thereto within 3 working days of receipt of payment by the Licensor.
F. The amount the Licensee shall be invoiced by the Licensor in respect of the following Years’ Annual License fee shall be adjusted so as to reflect the above additional amounts.

13. PAYMENT OF ANNUAL LICENSE FEES

All further moneys payable by the Licensee to the Licensor in terms of this agreement (after payment of the initial Annual License Fee) shall be paid to the payee and bank account as set out in the invoice furnished by the Licensor to the Licensee.

14. TRAINING AND SUPPORT

A. Training and support shall be provided to the Licensee as set out in the marketing material and letter giving the Licensee access to Equity Pro.
B. The Licensor shall, apart from the above support, also:

  1. Provide support  which shall be accessible via the Software application acquired by the Licensee
  2. Provide to the Licensee, without additional charge, e-mail support, requested by the Licensee in connection with its use and operation of the Software System or any problems therewith. The Licensee shall reduce all requests in this regard to writing, and communicate with the Licensor using the Product’s support function on the Software accessible to the Licensee. Telephonic consultation shall be requested and provided only if the request is not dealt with by return e-mail within twenty four working hours of the e-mail request being received, and during Licensor's normal business hours. The Licensee shall pay all long distance telephone charges in connection therewith.

15. SOFTWARE MAINTENANCE

A. The Licensor shall maintain the Product and ensure that it functions smoothly and correctly.
B. The Licensee shall, in the event of it discovering any apparent malfunctioning by the Product, immediately notify the Licensor thereof by setting out the details of such alleged malfunctioning in writing and sending it to the Licensor’s above e-mail address.
C. The Licensor shall immediately attend to such notification, and within 24 working hours of receipt thereof respond to the Licensee in writing, advising it:

  1. What it has established the problem is.
  2. Whether it has been resolved, and if not, when it is expected to be resolved.

D. The Licensor shall, in the event of it confirming that there is a malfunction, and it has not been resolved within the above 24 hours, keep the Licensee updated on at least a daily basis on the progress made in fixing such malfunction.

16. ESCALATION OF ANNUAL LICENSE FEE
The above licensee fee shall escalate at the rate of 5% per annum, which escalation shall take effect on the anniversary of the Commencement date.

17. TERMINATION OF LICENSE AND ACCESS TO THE SOFTWARE BY THE LICENSEE

A. The Licensee shall be liable for the due payment of the Annual License fee as provide herein for a period of three years as from the commencement date of the Agreement.
B. The Licensor shall have the right to immediately deny the License access to the Software if the Licensee fails to perform any obligation required of the Licensee under this Agreement or if the Licensee becomes bankrupt or insolvent.
C. The Licensee may, at the end of the said three year period, terminate the agreement by notifying the Licensor in writing of its intention to do so one calendar month before the expiration of such three year period.
D. In the event of the Licensee failing to so notify the Licensor of such termination, the Agreement shall be renewed for a further three years upon the same terms and, unless the terms are altered by mutual consent as provided for below.
E. Each party shall have the right to approach the other party, prior to the expiration of the above three year period, and renegotiate, for future purposes, any term of the agreement.
F. This License Agreement takes effect on the commencement date and remains effective until terminated.
G. The Licensor shall upon the termination of this License by the Licensee, terminate the Licensee’s access to the Software.
H. The Licensee shall also have the right to terminate this agreement if the Licensor is in material breach of its obligations in terms of this agreement, and has not, despite fourteen days’ written notice, delivered to the Licensor’s physical and e-mail address, not remedied such breach.

18. CONFIDENTIALITY

A. The Product and Software trade secrets and proprietary know-how that effectively belongs to the Licensor and it is being made available to the Licensee and its employees in strict confidence.
B. The Product has been patented. It is unlawful for any person, juristic or natural, to develop a competing software application that contains any of its functionalities.
C. The Licensee accepts that during the course and scope of training and usage of the product, it, and its employees and/or agents and/or their employees will obtain confidential information and intrinsic knowledge of the Product.
D. Neither the Licensee, its employees, its agents and/or their employees, shall not be entitled to use any of the material, software, ideas, inventions, copyright, trademark or programs, upgrades, amendments, any program or other information whatsoever related to the Product to develop, or to assist a third party to develop, a software or other application that is in any way competes with, or is intended to compete with, or replace, the Product. 
E. The Licensor shall be entitled to obtain an interdict should a breach of the preceding paragraph by the Licensee, or any of its employees, agents and/or their employees, comes to its knowledge.
F. Each party further agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement.

19. PUBLICITY
Licensor shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of the Licensee.

20. LICENSOR'S PROPRIETARY NOTICES
The Licensee agrees that any copies of the Software 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 the Licensee shall not distribute same to any third party without Licensor's prior written consent.

21. ALTERNATIVE DISPUTE RESOLUTION

A. The parties agree that any dispute between the parties will firstly be referred to a mediator for mediation on the terms and conditions as stipulated hereinafter. No Court will have any jurisdiction in respect of any disputes, save in the event of an urgent interdict pending the mediation to be conducted. A Court of law will only have jurisdiction to adjudicate any matter in respect hereof once the mediation process, as stipulated hereinafter, has been fully complied with and the mediator has issued a certificate in terms whereof it is certified that the mediator was unable to resolve the dispute within the time periods as stipulated hereinafter.
B. Any dispute shall firstly be referred to mediation on the following terms and conditions:

  1. The mediator shall be agreed on between the parties within 7 (seven) days from date of request thereof by the aggrieved party. In the event that a mediator cannot be agreed upon, the Chairman of the Arbitration Foundation of South Africa shall appoint a mediator.
  2. The mediator shall be appointed to effect mediation between the parties and resolve the outstanding disputes between them amicably.
  3. In the event of a referral to mediation, the mediation shall be conducted within 14 (fourteen) days after the appointment of a mediator stipulated herein before.
  4. If the mediator is unsuccessful to resolve the issue within 14 (fourteen) days after he is appointment, any party shall be entitled to approach a court of law for relevant relief.
  5. If the mediator is unable to mediate a resolution of the dispute within 14 (fourteen) days from date of his appointment, or such further date to be agreed to in writing between the parties, the mediator shall file a certificate that he is unable to resolve the issue and that either of the parties shall be entitled to approach the court for relief.
  6. The parties shall not be entitled to have legal representation at the mediation unless agreed in writing by both parties and the mediator.
  7. The mediator shall have no locus standi or jurisdiction to mediate on the following aspects, which any party shall be entitled to immediate Court relief:
    i Termination of the agreement
    ii Cancellation of the agreement due to a material breach committed by either party, referred to above.

22. JURISDICTION

A. If a dispute arises between the parties, the parties shall be entitled to institute any proceedings whether for urgent interim relief or otherwise in connection with this agreement in the High Court of South Africa, Johannesburg, subject to the terms of clause 23.
B. In the event of Court proceedings, the successful party shall be entitled to costs on an attorney and client scale which is to be awarded by the Court.

23. DOMICILIUM CITANDI ET EXECUTANDI

A. The parties choose as their domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process notices or other documents or communications of whatsoever nature at the addresses set out on the Order Form and first page of this agreement.
B. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice only by hand delivery or by courier or by telefax.
C. Any party by notice to notice to the other party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in South Africa or its postal address or its telefax number, provided that the change shall become effective on the 7th (seventh) business day from the deemed receipt of the notice by the other party.
D. Any notice shall be:

  1. Sent by registered post in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 10th (tenth) business day after posting (unless the contrary is proved); or
  2. Delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
  3. Sent by telefax to is chosen telefax number stipulated on the front page shall be deemed to have been received on the date of dispatch (unless the contrary is proved).

E. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its domicilium citandi et executandi.

24. ATTORNEY FEES
If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.

25. LIMITED LIABILITY
Unless otherwise expressly stated herein, Licensor shall not be liable to the Licensee for any consequential damages arising out of Licensor's breach of this Agreement.

26. SEVERABILITY

If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.

27. NO WAIVER
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.

28. COMPLETE AGREEMENT
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties.

LICENSOR

Authorized Signature on behalf of Licensor

SCHEDULE A
COMPUTER PROGRAM, ITS SPECIFICATIONS AND RELATED DOCUMENTATION

DESCRIPTION

Equity Pro is a web-based software application, with different modules for different levels and sizes of organisations, that facilitates

  • the setting of realistic and achievable EE Goals in line with BEE Targets and the requirements of the EE Act;
  • management and ownership of EE across groups of companies, divisions and business units; and
  • workforce planning and talent preparation.
Equity Pro’s benefits and features are set out in Appendix A, and its different Modules, and their different functionalities, are set out in Appendix B to the Main Agreement

HARDWARE REQUIREMENTS:

  • Computer with Internet access to www.equitypro.co.za
  • Security settings must allow for pop-ups & javascript from this site
  • Recommended minimum screen size: 1024x768

SOFTWARE REQUIREMENTS:

  • Browser: Mozilla Firefox 3.6 or later
  • Google Chrome v8 or above
  • Apple Safari v5 or later
  • Note: Internet Explorer is not supported at this time.
ACCESS
  • Through one of the above Browsers, using a Module Identity Number, User name and Password, provide by the Licensor

SYSTEM INFORMATION

  • Hosted on a dedicated LINUX server by HETZNER with the following features:
  • Dedicated IP address
  • Multiple backups - including offside
  • 99.8% uptime guaranteed by Service Level Agreement
  • Virtually unlimited bandwidth

DOCUMENTATION

  • An Equity Pro User Manual will be provided to all users.