END-USER LICENCE AGREEMENT
DO NOT INSTALL THE SOFTWARE ACCOMPANYING THIS END-USER LICENCE AGREEMENT (“EULA”) UNLESS AND UNTIL YOU HAVE READ ALL THE TERMS AND CONDITIONS BELOW AND AGREE TO BECOME THE LICENSEE OF THE SOFTWARE ON SUCH TERMS AND CONDITIONS. BY TICKING THE “ACCEPT” BOX AND CLICKING ON THE “NEXT” BUTTON YOU WILL BE DEEMED TO HAVE ACCEPTED ALL THESE TERMS AND CONDITIONS.
Subject to the terms and conditions that follow, the Licensor agrees to make its software available to the Licensee and to grant the Licensee a licence to use such programs and their associated documentation in combination with the Interface Device.
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
means the date on which this End-User Licence Agreement is accepted by clicking “Accept” during the software installation or by opening the package and using the Interface Device/hardware.
means this End-User Licence Agreement.
means those employees, contractors and/or individuals who are duly authorised by the Licensee to use the Interface Device and/or Licensed Programs on its behalf.
means Mondays to Fridays, excluding any official public holidays in the jurisdiction(s) in which the Licensor operates.
means all information which is expressly marked as confidential or which is manifestly of a confidential nature.
“Data Protection Legislation”
means the legislation on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in relation to the Licensor as the data controller/responsible party and/or processor/operator, and in relation to the Licensee as the data subject.
means updates (comprising general bug fixes and minor enhancements) and upgrades (comprising enhancements and major functionality changes).
means this End-User Licence Agreement.
“Intellectual Property Rights”
means all and any the rights and to intellectual property including (without limitation) the rights in and to trademarks, service marks, unregistered trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how, confidential information, utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, (without limitation), any registration of such rights and applications and rights to apply for such registrations.
“the Interface Device”
means the Licensor’s hardware device and the associated peripherals in respect of which the Licence is granted.
means the licence granted by the Licensor pursuant to section 2.
means the end-user who accepts the term and conditions of this EULA.
means Hex Microsystems (Pty) Ltd, Registration Number 2011/104566/07, of Unit 1, 6 Cyclonite Street, The Interchange, Somerset West, 7130.
“the Licensed Programs”
means the applications computer programs of the Licensor and any Enhancement(s) thereto, a list of which is available on www.hexezcan.com.
“the Licensed Program Materials”
means the Licensed Programs and the Program Documentation.
“the Local Jurisdiction”
means the jurisdiction in which the Licensed Program Materials and/or the Interface Device are received and used.
means all losses, liabilities, costs, expenses, fines, penalties, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties).
means either the Licensor or the Licensee, and "Parties" means the Licensor and the Licensee.
means personal data or personal information as defined in Data Protection Legislation.
“the Program Documentation”
means the operating manuals, user instructions, technical literature, on-line help and other documentation and related materials intended to aid the use by the Licensee of the Licensed Programs, which are available on www.hexezcan.com.
means the specification of the Licensed Programs describing the facilities and functions thereof, which are available on www.hexezcan.com.
means any electronic storage device that complies with the Licensor’s stated requirements on www.hexezcan.com.
means value added tax, import duties, and such other taxes or duties as may be applicable in the Local Jurisdiction.
means (as appropriate and in accordance with the terms of this Agreement) either (a) the loading and subsequent processing of the Licensed Programs into the temporary memory (RAM), or installing into the permanent memory (e.g. hard disk, CD ROM, FLASH or other storage device) of the Licensee’s System for operation and functioning solely in conjunction with the Interface Device and solely for the internal business purposes or personal benefit of the Licensee, and/or (b) loading and processing the Program Documentation in connection with the permitted use of the Licensed Programs.
2. LICENCE GRANT
2.1. The Licensor hereby grants to the Licensee a personal, non-exclusive, limited, revocable, non-transferable, and non-sub licensable Licence to Use the Licensed Program Materials subject to the terms and conditions contained in this Agreement.
2.2. The Licence shall commence on the Acceptance Date and shall continue until terminated in accordance with section 13 or as otherwise provided in this Agreement.
2.3. The Licence is restricted to the use of the Licensed Program Materials on, in connection and in conjunction with the Interface Device only.
2.4. The Licensee shall Use the Licensed Program Materials for its own internal business purposes only. In so doing, the Licensee may:
2.4.1. allow its Authorised Users to Use the Licensed Program Materials subject to the terms and conditions of this EULA, and such other conditions as the Licensor may prescribe from time to time for the Use of the Licensed Program Materials by Authorised Users;
2.4.2. install and store the Licensed Program Materials on its System;
2.4.3. make archival copies and routine computer backups; and
2.4.4. move the Licensed Program Materials in the licensed configuration to a replacement System.
2.5. The Licensee will oversee and be responsible for the Use of the Licensed Program Materials by its Authorised Users as contemplated in clause 2.4.1.
2.6. The Licensee shall not permit any third party other than its Authorised Users to use the Licensed Program Materials (and then only for its own internal business purpose as contemplated in clause 2.4.1). Save as permitted herein, the Licensee shall not use the Licensed Program Materials on behalf of or for the benefit of any third party in any way whatever (including, without limitation, using the Licensed Program Materials for the purpose of operating a bureau service).
2.7. The Licence shall not be deemed to extend or apply to any programs or materials of the Licensor other than the Licensed Program Materials, unless specifically agreed to in writing by the Licensor.
2.8. The Licensee hereby acknowledges that it is licensed to use the Licensed Program Materials only in accordance with the express terms of this Agreement and not for any other purpose.
3.1. The licence fee for the Licensed Programs Materials is included in the price for the Interface Device.
3.2. The Licensor reserves the right to charge for Enhancements from time to time. The Licensee will be notified of such Enhancements and receive payment instructions on www.hexezcan.com.
3.3. Any charges payable under this Agreement are exclusive of any Taxes. All Taxes shall be paid by the Licensee at the rate and in the manner for the time being prescribed by law in the Local Jurisdiction.
4. REGISTRATION AND DELIVERY
4.1. The Licensee shall be responsible for ensuring that the Interface Device is installed and fully operational.
4.2. The Licensee shall accept the terms and conditions of the EULA by clicking on the applicable text box..com
4.3. The Licensor shall enable the Licensee to download the Licensed Program Materials from the Internet, with instructions to the Licensee as to how to install the Licensed Programs on the Licensee’s System.
4.4. The EULA and the Licensed Program Materials shall be accepted, or deemed to have been accepted, by the Licensee upon the download of the Licensed Program Materials onto the Licensee’s System.
5. SOFTWARE WARRANTY
5.1. The Licensee acknowledges that the Licensed Programs have not been prepared to meet the Licensee’s individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions described in the Specification meet its requirements. The Licensor shall not be liable for any failure of the Licensed Programs to provide any facility or function not specified in the Specification.
5.2. The Licensor does not warrant that the Licensed Programs are free from viruses or errors.
5.3. The Licensor warrants that the Licensed Programs will for a period of 30 (thirty) days after the Acceptance Date (“the Software Warranty Period”) provide the facilities and functions set out in the Specification when properly used in connection and in combination with the Interface Device and that the Program Documentation, and that the Licensed Programs will provide adequate instructions to enable the Licensee to make proper use of such facilities and functions. If the Licensee discovers a material error which substantially affects the Licensee's use of the Licensed Programs and notifies the Licensor of the error during the Software Warranty Period, the Licensor shall at its sole option either:
5.3.1. replace the defective Licensed Program; or
5.3.2. use its commercially reasonable endeavours, at its own cost and expense, to repair, correct or provide a workaround for that part of the Licensed Program that does not comply with the Specifications.
5.4. The Licensee will not be entitled to rely on the warranty in section 5.3 and the Licensor shall have no liability or obligations under the said warranty:
5.4.1. where the Licensee is in breach of any material obligation under this Agreement; or
5.4.2. unless the Licensee notifies the Licensor in writing of the defect or error in question on or before the expiry of the Software Warranty Period.
5.5. Without limiting the generality of section 5.4, the Licensee will not be entitled to rely on the warranty in section 5.3 where non-compliance arose from:
5.5.1. a modification, variation or addition to the Licensed Programs (or part thereof), performed by any party other than the Licensor;
5.5.2. the use of the Licensed Programs other than in accordance with the Specifications and the Program Documentation; or
5.5.3. the abuse or corruption of the Licensed Programs, including (without limitation) the use of the Licensed Programs with software or on equipment (other than the Interface Device) with which it is incompatible.
5.6. When notifying the Licensor of a defect or error the Licensee shall provide the Licensor with as much evidence as possible of such defect or error, including where appropriate screen dumps and other documented examples.
5.7. CONTENT, DATA, SAMPLES, HOT FIXES, PATCHES, UPDATES, ONLINE SERVICES PROVIDED ON A NO-FEE BASIS, AND EVALUATION AND BETA SOFTWARE ARE DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND.
5.8. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS AND THAT (A) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (B) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, AND (C) NONE OF THE PARTIES SHALL BE LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE PERFORMANCE OR DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF ONLINE SERVICES.
5.9. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, LICENSOR DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE LICENSED PROGRAM MATERIALS WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT-TOLERANT, OR FAIL-SAFE; OR THAT ALL NON-CONFORMITIES CAN OR WILL BE CORRECTED. THE SOFTWARE PROGRAMS AND INTERFACE DEVICE ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. LICENSEE SHOULD NOT FOLLOW ANY ROUTE SUGGESTIONS THAT APPEAR TO BE HAZARDOUS, UNSAFE, OR ILLEGAL. ANY SUCH USES SHALL BE AT LICENSEE'S OWN RISK AND COST.
5.10. The Licensor shall have no liability or obligations under this section 5 other than to remedy breaches thereof in the manner as set out in section 5.3. The foregoing states the entire liability of the Licensor whether in contract, delict, tort, product liability or otherwise, for any defects and errors in the Licensed Program Materials.
6. INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP
6.1. The Licensed Program Materials are licensed, not sold. The Licensor and its licensors own the Licensed Program Materials and all copies, which are protected by South African as well as applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights, including trade secrets.
6.2. Licensee agrees to use reasonable means to protect the Licensed Program Materials from unauthorized use, reproduction, distribution, or publication.
6.3. Licensor and its third-party licensors reserve all rights not specifically granted in this Agreement, including the right to change and improve the Licensed Programs.
7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
7.1. The Licensor shall defend, indemnify as described below, and hold Licensee harmless from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, arising out of any claims, actions, or demands by a third party alleging that Licensee's Use of the Licensed Program Materials infringe a patent, copyright, or trademark, provided that:
7.1.1. Licensee promptly notifies the Licensor in writing of the claim;
7.1.2. Licensee provides documents describing the allegations of infringement;
7.1.3. Licensor has sole control of the defence of any action and negotiation related to the defence or settlement of any claim; and
7.1.4. Licensee reasonably cooperates in the defence of the claim at the Licensor's request and expense.
7.2. If the Licensed Program Materials are found to infringe a patent, copyright, or trademark, the Licensor, at its own expense, may either:
7.2.1. obtain rights for Licensee to continue using the Licensed Program Materials; or
7.2.2. modify the allegedly infringing elements of the Licensed Program Materials while maintaining substantially similar functionality.
7.3. If neither alternative is commercially reasonable, the License shall terminate, and Licensee shall uninstall and return to the Licensor or its authorized distributor any infringing item(s). The Licensor's entire liability shall then be to indemnify Licensee pursuant to section 7.1 and refund the unused portion of the license fees paid by Licensee to the Licensor or its authorized distributor (as part of the fee for the Interface Device) for the infringing items.
7.4. The Licensor shall have no obligation to defend Licensee or to pay any resultant costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement to the extent arising out of (a) the combination or integration of the Licensed Program Materials with a product, process, or system other than the Interface Device, or not supplied by the Licensor or specified by the Licensor in its Licensed Program Materials; (b) a material alteration of the Licensed Program by anyone other than the Licensor or its subcontractors; or (c) use of the Licensed Program after modifications have been provided by the Licensor for avoiding infringement as provided for section 7.2.
7.5. THE FOREGOING STATES THE ENTIRE OBLIGATION OF THE LICENSOR AND ITS AUTHORIZED DISTRIBUTOR(S) WITH RESPECT TO THE INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.1. The Licensee undertakes to treat as confidential and keep secret all Confidential Information contained or embodied in the Licensed Program Materials and the Specifications, and all Confidential Information otherwise conveyed by the Licensor to the Licensee provided that this section shall not extend to information which was rightfully in the possession of the Licensee prior to the Acceptance Date, which is already public knowledge, or becomes so at a future date (other than as a result of a breach of this section), or which is trivial or obvious.
8.2. The Licensee shall indemnify the Licensor against any Losses which the Licensor may sustain or incur as a result of the Licensee failing to comply with the undertaking in section 8.1.
8.3. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
9. SECURITY AND CONTROL
The Licensee shall during the continuance of the Licence:
9.1. effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person (other than the Authorised Users); and
9.2. retain the Licensed Program Materials under the Licensee’s effective control.
10. LICENSEE’S UNDERTAKINGS
10.1. Except to the extent and in the circumstances expressly required to be permitted by the Licensor by the law of the Licensee’s Local Jurisdiction, and then only for the specific, limited purpose stated in such applicable law, the Licensee shall not:
10.1.1. copy or reproduce, or cause or attempt to copy or reproduce, in any way or manner whatsoever, the whole or any part of the Licensed Programs (other than for the normal operation of its System);
10.1.2. alter, modify, vary, adapt, translate, decompile, disassemble or reverse engineer, or cause or attempt to alter, modify, vary, adapt, translate, decompile, disassemble or reverse engineer or translate in any way or manner whatsoever, the whole or any part of the Licensed Program Materials, nor permit the whole or any part of the Licensed Programs to be combined with or become incorporated in any other computer programs;
10.1.3. use the Licensed Programs other than in conjunction with the Interface Device;
10.1.4. distribute, rent, lease, sub-license, sell, lease, lend, time-share, assign or otherwise transfer any part of the Licensed Programs;
10.1.5. derive or gain access, or cause or attempt to derive or gain access, to the source code of the Licensed Programs; or
10.1.6. provide direct access to or otherwise make the Licensed Programs available in whole or in part (including where applicable, but not limited to program listings, object code and source program listings, object code and source code), in any form to any person (including the Licensee's Authorised Users), without prior written consent from the Licensor;
10.1.7. make any attempt to circumvent the technological measure(s) that controls access to or use of the Licensed Programs;
10.1.8. store, cache, use, upload, distribute, or sublicense content or otherwise use the Licensed Programs or the Program Documentation, as the case may be, in violation of the Licensor's or a third party's rights, including Intellectual Property Rights, privacy rights, non-discrimination laws, or any other applicable law or government regulation;
10.1.9. remove or obscure any of the Licensor's (or its licensors') patent, copyright, trademark, proprietary rights notices, and/or legends contained in or affixed to the Licensed Programs, product output, metadata file, or online and/or hard-copy attribution page of any data or documentation delivered hereunder;
10.1.10. unbundle or independently use individual or component parts of the Licensed Program Materials;
10.1.11. incorporate any portion of the Licensed Programs into a product or service that competes with the Licensed Programs;
10.1.12. publish or in any other way communicate the results of benchmark tests run on Beta without the prior written permission of the Licensor and its licensors; or
10.1.13. use, incorporate, modify, distribute, provide access to, or combine any computer code provided with the Licensed Programs in a manner that would subject such code or any part of the Licensed Programs to open source license terms, which includes any license terms that require computer code to be (a) disclosed in source code form to third parties, (b) licensed to third parties for the purpose of making derivative works, or (c) redistributable to third parties at no charge.
10.2. The Licensee agrees and undertakes:
10.2.1. to accept the Licensor’s installation of Enhancements to the Licensed Programs from time to time, and not to prevent or in any way or manner obstruct the Licensor from doing so;
10.2.2. to supervise and control the Use of the Software in accordance with the terms of this Licence;
10.2.3. to ensure that its Authorised Users who Use the Licensed Programs, agree to be bound by this EULA prior to such Authorised User using the Licensed Program Materials; and
10.2.4. within 14 (fourteen) days after the date of termination or discontinuance of this Licence for whatever reason, destroy the Licensed Programs and all Enhancements thereto, in whole and in part, in any form, including partial copies or modifications of the Software received from the Licensor or made in connection with this Licence as provided for in section 10.3, and all documentation relating thereto.
10.3. To the extent that the law in the Licensee’s Local Jurisdiction grants the Licensee the right to decompile the Licensed Programs in order to obtain information necessary to render the Licensed Programs interoperable with any other computer program used or to be used by the Licensee, the Licensor hereby undertakes to make that information readily available to the Licensee and the Licensee agrees to make such request of the Licensor before attempting to decompile the Licensed Programs. The Licensor shall have the right to impose reasonable conditions such as a reasonable fee for doing so. In order to ensure that the Licensee receives the appropriate information, the Licensee must first give the Licensor sufficient details of the Licensee’s objectives and the other software concerned. Requests for the appropriate information should be given by notice to the Licensor in accordance with this Agreement.
10.4. The Licensor shall not be responsible for any error in the Licensed Programs or failure of the Licensed Programs to fulfil the Specification insofar as such error or failure occurs in or is caused by any part of the Licensed Programs being modified or combined by the Licensee with other programs as aforesaid.
11. SOFTWARE MAINTENANCE
11.1. The Licensor will from time to time release Enhancements to the Licensed Programs. These are, save as provided for in section 3.2, generally made available for free.
11.2. Licensee will be alerted to the availability of Enhancements and instructions on how to access and download them, on www.hexezcan.com, or in terms of such other process as the Licensor may deem suitable.
11.4. Licensor will only support the current version of the Licensed Programs.
11.5. If at a later date the Licensee wishes to receive the then current release of the Licensed Program Materials or maintenance therefor, then the Licensor may at its option provide the same, subject to the Licensee entering into a new licence agreement in respect of such release (and paying the Licensor’s then current charge therefor).
12. COLLECTION AND USE OF THE LICENSEE’S PERSONAL DATA
13.1. The Agreement is effective upon acceptance of the EULA by the Licensee.
13.2. The Licensee may terminate the Agreement at any time upon notice to the Licensor.
13.3. If the Licensor becomes aware of any possible unauthorised use of the Licensed Programs, or any possible breach of any of the terms of this Agreement by the Licensee it may, without prejudice to any other right or remedy that may be available to the Licensor under this Agreement or at law, including (without limitation) the Licensor’s entitlement to claim for Losses), suspend Licensee’s Use of the Licensed Programs, including by modifying the Licensed Programs so as to render it technically inoperable, until such time as Licensee is able to demonstrate to Licensor’s satisfaction that no unauthorised use or breach occurred.
13.4. Without limiting the generality of section 13.3, and without prejudice to any other right or remedy that may be available to the Licensor under this Agreement or at law, including (without limitation) the Licensor’s entitlement to claim for Losses and to render the Licensed Programs technically inoperable), the Licensor may terminate the Licence forthwith without giving notice to the Licensee if the Licensee commits a breach of any material term of this Agreement and where such breach is capable of being remedied, fails to remedy the breach within 30 (thirty) days after the receipt of a request in writing from the Licensor so to do, specifying such breach.
13.5. A breach by the Licensee of its obligations of the following provisions will be deemed non-remediable and will entitle the Licensor to cancel this Licence with immediate effect:
13.5.1. the conditions of the Licence grant in section 2;
13.5.2. the Licensee’s undertakings in relation to the Licensor’s Proprietary Rights in section 6 and its duty of confidentiality in section 8;
13.5.3. the Licensee’s specific undertakings in section 10; or
13.5.4. a breach by the Licensee of the terms and conditions under which the Interface Device is sold to it.
13.6. Upon the termination of the Licence the Licensee shall:
13.6.1. cease to access and use the Licensed Program Materials;
13.6.2. uninstall, remove and destroy the Licensed Program Materials, and all copies thereof which are in the Licensee’s possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to the Licensor.
13.7. Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.8. For the avoidance of any doubt, the Licence and the Agreement will terminate simultaneously.
14. LIMITATION OF LIABILITY
14.1. Disclaimer of Certain Types of Liability. THE LICENSOR, ITS AUTHORIZED DISTRIBUTOR, AND ITS LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF THE LICENSED PROGRAM MATERIALS, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT THE LICENSOR, ITS AUTHORIZED DISTRIBUTOR, OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14.2. General limitation of liability. EXCEPT AS PROVIDED IN SECTION 7—INTELLECTUAL PROPERTY RIGHTS INDEMNITY, THE TOTAL CUMULATIVE LIABILITY OF THE LICENSOR AND ITS AUTHORIZED DISTRIBUTOR HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR THE LICENSED PROGRAM MATERIALS THAT GIVE RISE TO THE CAUSE OF ACTION, AS AT THE DATE ON WHICH THE CAUSE OF ACTION ARISES.
14.3. Applicability of Disclaimers and Limitations. The limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Licensee has accepted Licensed Programs or any other product or service delivered by the Licensor or its authorized distributor. The Parties agree that The Licensor or its authorized distributor has set its fees and entered into this Agreement in reliance on the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14.4. THE FOREGOING WARRANTIES, LIMITATIONS, AND EXCLUSIONS MAY NOT BE VALID IN SOME JURISDICTIONS AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S LOCAL JURISDICTION. LICENSEE MAY HAVE ADDITIONAL RIGHTS UNDER LAW THAT MAY NOT BE WAIVED OR DISCLAIMED. THE LICENSOR DOES NOT SEEK TO LIMIT LICENSEE'S WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
15.1. This Agreement shall be binding upon the Parties' respective successors and permitted assigns.
15.2. The Licensee shall not be entitled to assign, sub-license or otherwise transfer the Licence, or cede any of its rights or delegate any of its obligations under the Agreement, whether in whole or in part.
15.3. The Licensee hereby consents to the cession, delegation, transfer or assignment by the Licensor of all or any of its rights and obligations under this Agreement to any third party.
Any notices, requests and other communications required or permitted by this Agreement shall be given in writing and shall be delivered:
16.1. by email to the Licensee at the email address to which the Interface Device is registered, or when posted on www.hexezcan.com as provided for in section 17.1; and
16.2. by email to the Licensor firstname.lastname@example.org.
17.1. This Agreement constitutes the entire agreement between the Parties in connection with the subject matter hereof. Unless otherwise provided for herein, no variation, modification, amendment, supplement to or waiver of this Agreement or any of its provisions (“Amendment”) shall be binding upon the Parties hereto, unless made in writing and duly accepted by both parties. This notwithstanding, the Licensee agrees that the posting of a notice of Amendment by the Licensor on www.hexezcan.com, and the continued use of the Licensed Programs Materials by the Licensee following the posting of such a notice, will satisfy the requirements for an Amendment by the Licensor as set out in this section 17.1.
17.2. No indulgence, leniency or extension of time which any Party (“the Grantor”) may grant or show to any other Party, shall in any way prejudice the Grantor or preclude the Grantor from exercising any of its rights in the future.
17.3. All provisions and the various sections of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or section of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall in such jurisdiction only and only to the extent that it is so unenforceable, be treated as if of no force and effect, and the remaining provisions and sections of this Agreement shall remain of full force and effect.
17.4. Save to the extent otherwise provided for herein, no warranties, representations, undertakings, terms or conditions in connection with the subject matter hereof not incorporated in this Agreement and any schedules, shall be binding on either of the Parties (excluding fraudulent misrepresentation).
17.5. Except as expressly provided to the contrary, the provisions of this Agreement are solely for the benefit of the Parties to this Agreement, and not for the benefit of any other person or legal entity.
17.6. Licensee agrees that any breach of this Agreement by Licensee may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Licensor or its authorized agent, reseller or distributor shall have the right to seek interim relief on an urgent basis from a court of competent jurisdiction, without the requirement of providing security or proving damages as a condition for relief.
17.7. Except as provided in section 17.6, should any dispute arise between the Parties that they are unable to resolve through direct negotiation, either Party shall have the right at any time to submit the dispute to arbitration. The arbitration will be administered by the Arbitration Foundation of South Africa (“AFSA”), subject to the following:
17.7.1 the language of the arbitration shall be in English;
17.7.2 the place of the arbitration shall be Cape Town, South Africa; and
17.7.3 either party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.
17.8. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
17.9. The Parties hereby agree that the Agreement concluded between them and constituted on these terms and conditions, shall be construed in accordance with South African law and that all disputes between them relating to the terms hereof will be subject to the exclusive jurisdiction of the Western Cape High Court.