WEBSITE TERMS & CONDITIONS

  1. THIS WEBSITE
    1. This website (“Website”) allows you the END USER, customers and other interested parties to engage in a variety of activities such as finding information about AFRISOFT, obtaining support in respect of AFRISOFT’s licenced software system.
    2. This Website includes information created and published by AFRISOFT, such as text, images, photographs, graphics, audio and video, data, articles, templates, spreadsheets, software, services, logos, databases, icons, hyperlinks, designs, agreements, multimedia works, features, functionality and tools (“Content”).
  2. Scope and acceptance of these terms
    1. These terms of use (“Terms”) will apply to your access and use of this Website and the Content in addition to any further or different disclaimers, legal notices, agreements or terms and conditions that may apply to your use of or access to any particular Content. If there is any conflict between these Terms and any other legal terms, the other legal terms will prevail.
    2. These Terms form a legally binding agreement between END USER and AFRISOFT. By accessing or using this Website and/or the Content, you accept and agree to abide by these Terms. Should you not agree with these Terms, you must immediately leave this Website and not attempt to access or use this Website or the Content as your access and/or use of this Website or the Content will automatically bind you to these Terms.
    3. AFRISOFT reserves the right, in AFRISOFT’s sole discretion, to amend and/or replace any of, or the whole of, these Terms. Such amendments shall supersede and replace any previous Terms and will be made available on this Website. Each time you access this Website and/or use the Content, you will be consenting, by such access and/or use, to these Terms, as amended and/or replaced from time to time. If you are not satisfied with the amended Terms, you should refrain from using this Website
    4. If there is anything in these Terms that you do not understand, please contact AFRISOFT as soon as possible at info@afrisoft.biz.
  1. Changes to this website:
    1. AFRISOFT reserves the right, without notice and at AFRISOFT’s sole and absolute discretion, to change any aspect of the Content available on this Website, or to discontinue any aspect or feature of this Website or any of the Content or to change the software and hardware required to access and use this Website.
    2. You are required to regularly access this Website to keep yourself advised of these changes.
  1. Security
    1. In order to ensure the security and reliable operation of this Website and the Content to all users of this Website, AFRISOFT hereby reserves the right to take whatever action AFRISOFT may deem necessary to preserve the security, integrity and reliability of AFRISOFT’s servers, network and back-office applications.
    2. You may not utilise this Website in any manner that could damage, disable, overburden, impair or compromise the security of any AFRISOFT server or the networks connected to any AFRISOFT server or tamper with this Website in any manner whatsoever or interfere with any other person’s use and enjoyment of this Website. You may not attempt to gain unauthorised access to this Website, other accounts, computer systems or networks connected to any AFRISOFT server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through this Website. Any person or entity which does so, or attempts to do so, shall be held criminally liable and shall also be liable, on an indemnity basis, for any direct and indirect damages or loss that AFRISOFT suffers or sustains.
    3. In addition to the above, any user who:
      1. Intentionally accesses or intercepts any data without authority or permission to do so;
      2. Intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective;
      3. Utilises any device or computer program in order to unlawfully overcome security measures designed to protect this Website and the Content or access thereto;
      4. Commits any act described above with the intent to interfere with access to this Website so as to constitute a denial, including a partial denial of access to and/or use of this Website to legitimate users;
      5. performs or threatens to perform any of the above acts for the purpose of obtaining any unlawful proprietary advantage by undertaking to cease or desist from such action, or by undertaking to restore any damage caused as a result of those actions;
      6. performs any of the acts described above for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic; or
      7. aids or abets someone to commit any of the foregoing acts, shall, notwithstanding criminal prosecution, be liable for all direct and indirect resulting liability, loss or damages suffered and/or incurred by AFRISOFT and AFRISOFT’s affiliates, agents, channel partners and/or users on an indemnity basis.
  1. AFRISOFT’S intellectual property rights relating to the website
    1. As used in these Terms, “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, logos, designations, insignias, brand and trade names, business names, domain names, trade secrets or confidentiality rights and any other intangible property rights, including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected or registered or capable of registration, now existing or hereafter created, issued, acquired or filed.
    2. All Intellectual Property Rights to this Website and the Content are the property of, or are licensed to, AFRISOFT and as such are protected from infringement by local and international legislation and treaties.
    3. Nothing in these Terms shall be deemed to give you the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any part of this Website, any Content or any Third Party Content which is not your Third Party Content for any reason unless otherwise expressly permitted by these Terms or by law.
    4. Your access to and use of this Website will not give you any rights in or to this Website or the Content. All rights not expressly granted are reserved and no right, title or interest in any of the Content or any part of this Website is granted to you.
    5. Irrespective of the existence of copyright, you acknowledge that AFRISOFT is the proprietor of all of the Content (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that you have no right, title or interest in any such Content.
    6. You agree to take all steps to ensure that you the END USER and your users’ use of this Website and the Content protects all of AFRISOFT’s rights.
    7. You agree not to do anything that may or is likely to diminish or damage AFRISOFT’s rights in and to this Website and the Content.
    8. You and your users will not during or at any time after the termination of your relationship with AFRISOFT or the cessation of your use of this Website or the Content acquire or be entitled to claim any right or interest in or to this Website and/or the Content and you agree not to challenge or assist others in challenging the validity or ownership of AFRISOFT’s Intellectual Property Rights in this Website and the Content.
    9. You agree to notify AFRISOFT in writing as soon as you become aware of any infringement of AFRISOFT’s or its licensors’ Intellectual Property Rights.
    10. Information on requirements for using AFRISOFT’s trademarks can be found by contacting the Company directly.
  2. Confidential information
    1. As used in these Terms, “Confidential Information” means all trade secrets, Intellectual Property Rights and other information that AFRISOFT or third parties protect against unrestricted disclosure to others which is:
      1. Either labelled as confidential and accessed through a restricted or non-public area of this Website or pursuant to software downloads; or
      2. Reasonably identifiable as confidential based on the type of information and the manner of its disclosure; or
      3. Stipulated in section 18.2.1
  1. Linked third party websites
    1. AFRISOFT may provide links to third party websites on this Website. These links are provided to you for convenience only and AFRSOFT does not endorse, nor does the inclusion of any link imply AFRISOFT’s endorsement of, such websites, their owners, licensees or administrators or such websites’ content, security practices, privacy policies and operations. AFRISOFT cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, AFRISOFT’s control. AFRISOFT is not responsible for and gives no warranties and makes no representations in respect of the privacy policies or practices of linked or any third party or advertised websites on this Website.
    2. You agree that AFRISOFT shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on this Website. Any dealings that you may have with any linked websites are solely between you and the third party website.
  2. General disclaimers and indemnity
    1. You acknowledge that you use this Website and the Content entirely at your own risk and on an “as is” and “as available” basis and that you assume full responsibility and risk of loss resulting from the use thereof.
    2. While AFRISOFT has taken reasonable measures to update the Content and to offer the most current, correct and clearly expressed information possible, AFRISOFT cannot be held responsible for any inaccuracies, errors, omissions, misinterpretations or incompleteness.
    3. AFRISOFT does not make any warranties or representations, whether express, implied or statutory:
      1. that this Website or the Content will be available at all times, or will be error-free or that errors in this Website or the Content will be corrected or that this Website and/or the Content will meet any particular criteria of performance or quality or that you will be able to access websites linked to this Website at all times;
      2. as to non-infringement of third party rights, merchantability, fitness for a particular purpose, compatibility, security or accuracy;
      3. that any files, downloads, software or applications available via this Website are free of viruses or any other data or code that has the ability to corrupt, damage or affect the operation or security of your system;
      4. Regarding the accuracy of the results or output that you derive from making use of any Content made available through this Website.
    4. Under no circumstances will AFRISOFT be liable to you the END USER or any of your users for any indirect, special, incidental, exemplary or consequential damages or loss, loss of anticipated profits, loss of business opportunity, loss of business data/information or loss of contracts by either you or any third party or claims or demands against either you or AFRISOFT by any third party or other like commercial or economic loss related in any way to the Website and/or the Content or your or your users’ use thereof or in connection with or arising out of these Terms whether based on contract, delict/tort (including strict liability), statute, the breach of any warranty, other legal or equitable grounds or otherwise.
    5. To the extent permissible by applicable law, neither AFRISOFT, its affiliates, shareholders, agents, partners, licensors, consultants, officers or employees (“Indemnified Parties”) shall be liable for any loss or damages whatsoever (including, without being limited to, any direct, indirect, special, incidental, consequential, punitive or exemplary damages) howsoever arising (whether in an action arising out of contract, statute, delict/tort or otherwise) related to or resulting from:
      1. the use of, or the inability to access or use, this Website or any of the Content;
      2. the faulty execution of this Website or the malfunctioning of this Website;
      3. the use of or the inability to access or use any linked website;
      4. statements, messages or conduct of any third party on this Website; or
      5. any other matter relating to this Website or the Content, even if AFRISOFT knows or should reasonably have known of same. Notwithstanding anything to the contrary contained herein, the aforesaid limitations shall not apply in the case of intent or gross negligence by AFRISOFT or in the case of AFRISOFT’s statutory liability for personal injury.
    6. To the extent permissible by applicable law you hereby unconditionally and irrevocably indemnify the Indemnified Parties and agree to hold the Indemnified Parties free from any claim or demand, loss, damages and/or costs (including reasonable attorneys’ fees) of whatsoever nature that the Indemnified Parties may suffer or incur or that are instituted against the Indemnified Parties as a direct or indirect result of:
      1. your use of this Website and any of the Content;
      2. any unavailability of, or interruption in, this Website or any of the Content;
      3. your failure to comply with any of these Terms or any other requirements which AFRISOFT may impose from time to time or any additional legal terms or AFRISOFT’s privacy policy;
      4. your unauthorised use of any of AFRISOFT’s Intellectual Property Rights;
      5. your alleged breach of any other rights of a third party;
      6. the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software;
      7. your transmission of information via the internet including, without being limited to, email.
  1. Breach
    1. If you breach any of these Terms;
      • in AFRISOFT’s sole discretion use this Website in an unauthorised manner;
      • or breach any statute, regulation, ordinance or law,

        AFRISOFT is entitled without notice, in addition to any other right or remedy available to AFRISOFT at law or under these Terms, including obtaining an interdict/injunction, to limit or deny you use of this Website or to claim specific performance of any of your obligations whether or not the due date for performance has arrived, in either event without prejudice to AFRISOFT’s right to claim all loss and damages that AFRISOFT incurs or sustains.

    2. You agree to reimburse AFRISOFT all of the reasonable legal costs and fees that AFRISOFT incurs, on an indemnity basis, associated with any legal action that AFRISOFT pursues against you.
  2. Notices
    1. Except as explicitly stated otherwise, any notices shall be given by:
      • Email to info@afrisoft.biz . Notice shall be deemed given 48 (forty eight) hours after an email is sent, unless the sending party is notified that the email address is invalid;
      • Registered mail/airmail to, in the case of AFRISOFT, the address provided on this Website, and, in your case, the address that you the END USER have provided to AFRISOFT. In such case, notice shall be deemed to have been given 14 (fourteen) days after the date of mailing;
      • delivery by hand to a responsible person during business hours to, in the case of AFRISOFT, the physical address provided on this Website, and, in your case, the physical address that you have provided to AFRISOFT. In such case, notice shall be deemed to have been given on the date of delivery.
    2. You acknowledge that all agreements, notices and other communications required to be given in terms of these Terms may be given via electronic means and that such communications shall be “in writing”.
    3. Notwithstanding anything to the contrary, a written notice or communication actually received by a party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address (es) for that purpose.
  3. General clauses
    1. These Terms shall be deemed to be made under the laws of the Republic of South Africa and the construction, validity, interpretation and performance of these Terms as well as any dispute related to or arising from these Terms shall be governed in all respects by the laws of the Republic of South Africa without regard to the principles of conflict of laws and specifically excluding the provisions of the United Nations Convention on the International Sale of Goods. You and AFRISOFT hereby submit to the exclusive jurisdiction of the courts of the Republic of South Africa. Notwithstanding the foregoing, nothing in these Terms precludes AFRISOFT from taking proceedings against you in any court of competent jurisdiction nor will the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in other jurisdictions, whether concurrently or not.
    2. This Website is controlled and administered by AFRISOFT from its offices within the Republic of South Africa. Access to this Website from territories or countries where the Content of this Website is illegal is prohibited. You are responsible for compliance with all local laws of the country from which you access this Website.
    3. These Terms set forth the entire understanding and agreement between AFRISOFT and you with respect to this Website and your access to and use of this Website and the Content.
    4. In the event that any of the provisions of these Terms are or may become illegal, invalid, unlawful or unenforceable in any jurisdiction affected by these Terms, such provision as to such jurisdiction, shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as not written in these Terms and severed from the balance of these Terms, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
    5. AFRISOFT’s failure to enforce any provision of these Terms will not constitute a waiver of such provision or affect in any way AFRISOFT’s right to require the performance of such provision at any time in the future.
    6. You shall not be entitled to cede or assign your rights or delegate your obligations in terms of these Terms to any third party without AFRISOFT’s prior written consent.
    7. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
    8. The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
    9. Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the female and neuter genders and words importing persons shall include partnerships and corporate and unincorporated entities.
    10. In these Terms “you” is a reference to any juristic entity or individual, including individuals who are registered as END USER of a juristic entity, who access the Website. You will be responsible for your users’ access and use of this Website and any breach of these Terms by one of your users will be deemed to be a breach of these Terms by you the END USER.
    11. The termination of your relationship with AFRISOFT, for any reason, or the cessation of your use of the Website or the Content shall not affect such of the provisions of these Terms as expressly provide that they will operate after any such termination or cessation or which of necessity must continue to have effect after such termination or cessation notwithstanding that the provisions themselves do not expressly provide for this. Such provisions include your obligations relating to AFRISOFT’s Intellectual Property Rights and Confidential Information. Refer to section 20 for Termination terms.
    12. No provision in these Terms shall be construed against or interpreted to the disadvantage of AFRISOFT by reason of AFRISOFT having or being deemed to have structured, drafted or introduced such provision.
  4. END USER LICENCE AGREEMENT
    1. Headings; Definitions. Section headings are for convenience only and do not define or limit the scope of any provision hereof. Days are calendar days unless otherwise specified. Any term designated by an initial capital letter shall have the meaning ascribed to it, “include/es/ing” shall mean “include/es/ing without limitation”, and the following terms shall have the meanings stated:
      1. END USER: Counter party to the EULA who has submitted an order to AFRISOFT for limited use of the Software System as specified in the order.
      2. EULA: This EULA is a legal contract between AFRISOFT and the END USER of the software system per section 2.2. The END USER agrees to pay for the privilege of using the software system, and contractually agrees with AFRISOFT to comply with all restrictions stated in this EULA. The SLA for services rendered by AFRISOFT is dependent upon acceptance of section 2.2 and remainder of this EULA.
      3. Order: END USER’s order to purchase software licenses and related services as specified in the quote from AFRISOFT
      4. Software System: Each computer software system and related documentation specified in Order.
      5. Derivative Work: A work of authorship based on one or more preexisting works, such as a modification, revision, implementation, configuration, adaptation, translation, condensation, expansion, or other form in which a preexisting work may be recast, transformed, or adapted
      6. Effective Date: AFRISOFT’s acceptance of END USER’s Order not in contravention of section 2 of this website.
      7. Expenses: All reasonable out-of-pocket costs and expenses, including travel and living, incurred.
      8. Error: Is a reproducible failure of the software to operate as is described in the system documentation.
      9. Error Correction: Is the correction of any error through a modification to the system or to a supporting business process used to operate the system.
      10. License Fee: AFRISOFT’s standard full license fee for System Software in effect at the time of END USER’s Order of same.
      11. Maintenance: AFRISOFT shall use reasonable commercial efforts to verify reproducible Errors in the Software System and provide END USER with Error Corrections (“Maintenance”). AFRISOFT shall not be responsible for correcting Errors resulting from misuse, negligence, revision, modification, or improper use of the Software System or any portion thereof by END USER or any other person or entity. Standard Updates, if any, of the Software System listed on the order will be made available to END USER at no additional cost providing END USER is not in default of any provisions herein.
      12. Maintenance Fee: AFRISOFT’s then-current fee for an END USER’s right to receive Maintenance (“Maintenance“) during any Maintenance Term.
      13. Maintenance Term: Each one (1) year period of Maintenance, starting on the Effective Date per order, or any subsequent annual renewal specified per the Order.
      14. Payment: Payment in full of all obligations specified on Order, due and payable to AFRISOFT by END USER in terms of this EULA, and SLA.
      15. Site: Each physical location of the Software designated by a street address and registered with AFRISOFT on END USER Order.
      16. SLA: Service Level Agreement is a contract between END USER and AFRISOFT, fully dependent upon acceptance in terms of section 2. The SLA defines the level of service expected of and quoted to be provided by AFRISOFT.
  5. GRANT OF RIGHTS
    1. License. Subject to the provisions hereof, upon AFRISOFT’s acceptance of END USERS Order and receipt of Payment, AFRISOFT grants to END USER, and END USER accepts, a revocable, nonexclusive, nontransferable, and non-assignable limited license to use the object code form of the Software System specified on the Order, only at the Sites indicated therein in the conduct of END USER’s own business to process END USER Data for its internal business operations.
    2. This EULA expressly restricts to the number of copies of each System at the Site/s and to the total number of Use Licenses and/or Users for which END USER has paid the associated License Fees and Maintenance Fees all of which shall be specified in the Order.
    3. END USER shall be deemed to automatically accept the System on delivery. END USER shall certify to AFRISOFT in writing of the number of Use Licenses and/or Users at each Site promptly upon request, and immediately notify AFRISOFT of any change in the number of Use Licenses and/or Users, or of a pending relocation of the System.
    4. END USER shall not assign or otherwise transfer the obligations stipulated in this EULA, the System, or any right or obligation hereunder.
    5. Other Rights.  This EULA also grants END USER the right to:
      1. Make one (1) copy of the Software solely for its own nonproductive archival, back-up, testing, and disaster recovery purposes, and make such reasonable number of copies of the Documentation solely as needed for END USER’s internal use of the Software System. All copies of the Software System are subject to all applicable provisions hereof, including confidentiality, ownership, and use.
      2. Receive Maintenance from AFRISOFT. Unless expressly agreed to in writing by AFRISOFT, AFRISOFT shall not provide END USER with services of any kind except for Maintenance. Maintenance (“Maintenance”) shall automatically renew at the end of the initial Maintenance Term for additional consecutive annual periods, subject to End User’s payment of the annual Maintenance Fee, unless earlier terminated pursuant to section 20.2
    6. Exclusions. Except for Maintenance as specified herein, AFRISOFT shall not be responsible in any manner for:
      1. Providing the System Environment, a suitable installation site, or any utilities (including cables, suitable Wi-Fi reception and outlets) required for System operation.
      2. Ensuring integrity, backup, or accurate conversion of all data to System-usable form.
      3. Third Party Products, which END USER acknowledges shall be provided pursuant to the terms of the third party’s contract and agrees to abide by the terms thereof.
      4. Software or hardware, delivery, installation, implementation, and Support, which AFRISOFT may provide as specified in a separate agreement between AFRISOFT and END USER.
      5. Consulting and other services including all assistance to END USER to configure the System Environment, to reinstall, uninstall, and/or adjust installation due to changes or events at END USER’s location, and to provide additional training for END USER personnel, may be specified in a separate agreement executed by both Parties containing AFRISOFT’s then-current terms, conditions, fees, and Expenses for such services
    7. Audit; Reservation of Rights. AFRISOFT shall have the right, with reasonable advance notice and during normal business hours, to inspect each Site to verify compliance herewith. All rights not specifically granted to End User under this EULA are expressly reserved to AFRISOFT, including all rights, title, and interest in and to the Software System and all modifications and derivative works thereto.
    8. New Releases. AFRISOFT may from time to time make available to END USER new Releases of the Software System, for additional fees and/or under additional terms and conditions. AFRISOFT shall have sole and final authority to determine whether and what additional fees will be charged.
  6. PAYMENT; TAXES.
    1. END USER shall pay fees, which are non-refundable, in the currency specified on Order and in the amounts and at the times stated in invoices submitted by AFRISOFT. END USER hereby agrees that payment on invoices associated with this EULA will be paid in advance of service and are not refundable for any reason whatsoever
    2. All fees and prices agreed to herein are exclusive of, and END USER shall be solely responsible for paying, any and all VAT, GST, Custom duties, sales taxes, fees, and duties, but excluding AFRISOFT’s corporate income taxes, incurred in performance of or arising in connection with this EULA. AFRISOFT reserves the right to have END USER pay any such taxes to AFRISOFT as they come due for remittance to the appropriate authority. END USER agrees to hold harmless AFRISOFT from all actions, judgments, claims, liabilities, and expenses arising from or in connection with END USER’s failure to report or pay such taxes, or otherwise comply with this Section 14.2.

  7. LIMITED WARRANTIES

    1. Limited Software System Warranty. AFRISOFT warrants that during any valid term of this EULA, the Software System will perform substantially in accordance with the Software System Documentation. END USER acknowledges that
      1. the Software System may not satisfy all of END USER’s requirements and
      2. the use of the System may not be uninterrupted or error‑free, and
      3. modification to the Software System by anyone other than AFRISOFT will void this limited warranty. Further, this limited warranty is conditioned upon the complete compliance with the terms and conditions of this EULA and installation by END USER of all Error Corrections, if any, to the Software System which may be provided under Maintenance.
    2. Sole Remedy. As END USER’s sole and exclusive remedy under this limited Software System warranty, AFRISOFT shall, in its sole discretion, either
      1. provide services to repair a nonconformity within this limited Software System warranty period, or
      2. replace the nonconforming portion of the Software System. AFRISOFT shall not be obligated to correct, cure, or otherwise remedy any nonconformity in the Software System if it has been misused or damaged in any respect, altered or modified by END USER or any third party, or if END USER has not reported to AFRISOFT the existence and nature of such nonconformity promptly upon discovery thereof. The express warranties contained herein are in lieu of (and AFRISOFT hereby disclaims) any and all other warranties, whether express, implied, or statutory, including any warranty or representation of merchantability, against infringement or for any purpose.
  1. DISCLAIMER OF WARRANTIES. Except as provided in Section 15.1, the parties agree and acknowledge that the services specified herein are provided “as is”. AFRISOFT makes no warranties with respect to the software System or any components thereof, other Products, or other goods or services provided by AFRISOFT, express, implied, or statutory, oral or written, including the implied warranties of merchantability, against infringement, and fitness for a particular use or purpose.
  2. LIMITATION OF LIABILITY. Unless otherwise expressly provided for herein or in the SLA, END USER acknowledges and agrees that in no event shall AFRISOFT have any liability under this EULA in any manner, for any reason, or under any circumstances whatsoever, nor shall AFRISOFT any affiliate of AFRISOFT, or any of their officers, directors, owners, shareholders, employees, or representatives be liable to END USER, its affiliates, subsidiaries, officers, directors, shareholders, employees, partners, or owners for any special, indirect, reliance, incidental, or consequential damages, or loss of profits or goodwill, resulting from the use of or inability to use the Products or other goods or services provided hereunder, even if AFRISOFT has been notified of the likelihood of such damages occurring. END USER agrees that the sole and exclusive remedy available to END USER shall be recovery of actual direct damages not in excess of the total AFRISOFT, Software license fees Software Maintenance fees, actually paid to AFRISOFT by END USER hereunder during the twelve (12) months immediately preceding END USER’s presentation of a claim to AFRISOFT. The parties agree that the limitations provided in this Section 17 shall survive and continue in full force and effect despite any failure of essential purpose, consideration, or an exclusive remedy.
    1. Negligence and Wilful Acts. Each Party undertakes to indemnify and hold harmless the other Party for any personal injury or tangible property damages caused by gross negligence or wilful misconduct of the first Party.
  3. INTELLECTUAL PROPERTY PROTECTION
    1.  Definitions
    2. Proprietary Information” means, collectively and without regard to form, any third party information either Party has agreed to keep confidential, information regulated by the Republic of South Africa concerning disclosure or use, and Confidential Information, and Trade Secrets; defined as follows:
      1. Confidential Information” means non-public proprietary information of value to its owner other than Trade Secrets, and any information defined herein as a Trade Secret but does not qualify as a trade secret under applicable law.
      2. Trade Secrets” means information which derives actual or potential economic value from not being generally known to, and not being readily ascertainable by proper means by, others who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. With respect to AFRISOFT, “Trade Secrets” includes the System, Enhancements, Maintenance, and Derivative Works thereof, and “Confidential Information” includes the terms of this EULA and any Dispute Resolution proceedings.
      3. Intellectual Property” means the intangible legal rights or interests in, evidenced by, or embodied in Proprietary Information and in:
        1. any invention, regardless of patentability, but including patents, designs, algorithms, and other industrial property rights;
        2. works of authorship, including patents, copyrights, moral rights, and mask works;
        3. registered and unregistered trademarks and service marks;
        4. all other intellectual and industrial property rights of every kind and nature however designated, whether arising by operation of law, contract, license, or otherwise; and
        5. all prior, current, and future registrations, applications, renewals, extensions, continuations, divisions, and reissues.
    3. AFRISOFT Property” shall mean, respectively, AFRISOFT Intellectual Property, which shall include all originals and copies of:
      1. utilities, benchmarks, diagnostics, and associated media, and manuals, reports, records, programs, and other materials, used or made by AFRISOFT in its performance hereunder;
      2. analytical processes, tools, techniques, methods, object and source code, and systems, including the System, employed or developed by AFRISOFT in connection with the System;
      3. information and materials related thereto and to AFRISOFT’s business;
      4. Enhancements, Derivative Works, and other intellectual property rights in or related to the System; and
      5. data in any form provided by AFRISOFT (“AFRISOFT Data“).
    4. Ownership Rights.
      • Intellectual Property. Neither Party will have any claim or right to the other Party’s Intellectual Property by virtue of this EULA or its performance hereunder. Neither Party will take any action or make any claim to any of the other Party’s Intellectual Property that is inconsistent with this Section 18, whether during the term of this EULA or thereafter.
      • AFRISOFT Property. END USER acknowledges that the System is unpublished and constitutes AFRISOFT copyrights and Trade Secrets and, except for third party software provided with the System, that AFRISOFT owns all right, title, and interest in and to AFRISOFT Property. END USER is granted only a right to use the System, which right of use is not coupled with an interest and is revocable in the event of END USER’s breach of the terms hereof, and except for the limited license granted herein, END USER does not claim and shall not assert any right, title, or interest, or other ownership or proprietary rights, in or to any AFRISOFT Property. END USER shall take no action that jeopardizes AFRISOFT’s Property or acquire any right in same, and shall keep the System free and clear of all claims, liens, and encumbrances whatsoever. END USER hereby assigns to AFRISOFT all copyrights (including moral rights), patents, patent applications, and other intellectual property rights and interests of any kind in and to AFRISOFT Property, and shall cooperate with AFRISOFT in the protection of AFRISOFT’s worldwide proprietary rights and interests therein, as requested by AFRISOFT.
    5. Protection of AFRISOFT Property.
      1. END USER shall not itself, and shall not permit any other party to:
        1. disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the System; alter, modify, or prepare Derivative Works based on any AFRISOFT Property; or use any AFRISOFT Property to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the System;
        2. demonstrate or display the System or its operation to unauthorized parties; or use the System in a service bureau, outsourcing, or time-sharing environment;
        3. alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices or marks or any confidentiality legends embedded or otherwise appearing in or on any AFRISOFT Property; or fail to ensure that all such notices, marks, and legends appear on all full or partial copies of AFRISOFT Property and any related material; or
        4. by any means sell, sublicense, lease, assign, pledge, mortgage, encumber, transform, or otherwise distribute, dispose of, or transfer any AFRISOFT Property, this EULA, or any of the rights or obligations granted or imposed on END USER hereunder, or transfer possession of any copy or form of the System to another party, by operation of law or otherwise. Any attempt to do so shall be void, and this EULA shall automatically terminate without notice concurrently therewith. Neither this EULA nor any rights hereunder shall be an asset of END USER in any manner whatsoever, including under any bankruptcy, insolvency, or reorganization proceedings; provided, however, this EULA and the transactions provided for herein shall be binding upon and inure to the benefit of the Parties and their respective legal representatives and permitted transferees, successors, and assigns. If requested, END USER shall require personnel and representatives to execute appropriate confidentiality agreements. If an unauthorized use or disclosure occurs, END USER shall immediately notify AFRISOFT and assist in recovering the AFRISOFT Property and prevent its subsequent unauthorized use or dissemination.
      2. The unauthorized disclosure or use of Proprietary Information of the other Party or of AFRISOFT and all information and services related thereto, would cause great injury and harm to its owner. Therefore, each Party agrees to hold in strictest confidence, and to take all appropriate action to ensure the confidentiality and security of the other Parties’ Proprietary Information, but in any event no less than the same standard of care it uses to protect its own Proprietary Information of like kind and value. Without limiting the generality of the foregoing, and in addition to END USER’s obligations specified in Section 18.3, END USER and AFRISOFT each agrees that it:
        1. shall maintain all other parties’ Proprietary Information in the strictest confidence, including compliance with reasonable remote access security requirements;
        2. shall not disclose, display, publish, transmit, or otherwise make available such Proprietary Information or the benefit thereof, in whole or in part, except in confidence to its own personnel on a need-to-know basis; and
        3. except as expressly permitted hereunder, shall not copy, duplicate, replicate, translate, transform, or otherwise reproduce such Proprietary Information.
      3. Acceptable Use. END USER shall be responsible for continual compliance with this Section 18 and shall maintain the security of the System in accordance with this EULA. Violations include, and END USER shall investigate, actual or attempted:
        1. access to a server, account, data, or application service provider services not intended for END USER’s use;
        2. breach of security or authentication measures without proper authorization;
        3. probe, scan, or test of the vulnerability of, or other interference with, the System; or
        4. use of the System to create, transmit, distribute, or store material that:
          1. violates the Intellectual Property rights or the privacy, publicity, or other personal rights of others;
          2. impairs the privacy of communications; or
          3. Assists or permits any persons to engage in any of the prohibited activities described above.
        5. Anything in this Section 18 notwithstanding, neither Party shall be liable to the other for damages resulting from disclosure of any of the other Party’s Proprietary Information which was not confidential when the recipient lawfully received it, or which, prior to disclosure hereunder or becomes part of the public domain through no act or failure to act by the recipient. If any law, regulation, or decree of any court or governmental unit requires disclosure of all or part of AFRISOFT’s Property, END USER shall have no liability to AFRISOFT for strict compliance with such requirement provided END USER:
          1. defers disclosure for the maximum time period permitted by law;
          2. gives AFRISOFT prompt notice of such disclosure requirement; and
          3. allows AFRISOFT the opportunity to defend against such disclosure.
        6. The restrictions set forth herein shall apply during the EULA Term and shall remain continuously in full force and effect after any expiration or termination of this EULA for:
          1. Trade Secrets, and any Confidential Information deemed a Trade Secret, as long as such information remains qualified as a Trade Secret under applicable law; and
          2. all other Confidential Information, during a period of five (5) years after the date of initial disclosure.
  4. GOVERNING LAW; REMEDIES; DISPUTE RESOLUTION
    1. Governing Law. This EULA shall be governed by the laws of the jurisdiction in which AFRISOFT has its principal place of business and in terms of section 11.1
    2. In the event of any legal action and its subsequent appeals between AFRISOFT and END USER arising from this EULA, or otherwise, AFRISOFT shall be entitled to recover its reasonable legal fees including but not limited to attorney’s fees incurred if AFRISOFT prevails in said legal action and its subsequent appeals. All delinquent sums due pursuant to this EULA shall accrue interest at the rate of 1.5% per month.
    3. Arbitration
      1. Should any dispute (other than a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction), arise between the END USER and AFRISOFT with regard to the interpretation, implementation or enforcement of this EULA, or as to whether or not this EULA has been terminated or is void or voidable, and/or any other difference or dispute relating to or arising from this EULA or the enforcement thereof, that dispute or difference shall, unless resolved amongst the Parties thereto, be referred to arbitration before an Arbitrator appointed by and in accordance with such rules and procedures of arbitration as may be determined by and in accordance with the Arbitration Foundation of South Africa (“the Arbitration Foundation”). The Parties record that there shall be a right of appeal as provided for in article 22 of the aforesaid rules.
      2. Notwithstanding anything to the contrary contained in this EULA or stipulated by the Arbitration Foundation, the Arbitration will be held in Johannesburg, with a view to achieving an expeditious result. Furthermore, the arbitration will be conducted in camera, the Parties and the participants in the arbitration being obliged to maintain the utmost confidentiality with regard to all matters relating thereto or arising therefrom, save as otherwise expressly and peremptorily required by law.
        1. Each Party to this EULA expressly consents to an arbitration in terms of the aforesaid rules being conducted as a matter of urgency, and irrevocably authorizes the other Party to apply, in writing, on behalf of all Parties to such dispute, to the secretariat of AFSA in terms of article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.
    4. Remedies. All rights and remedies shall be cumulative, may be exercised singularly or concurrently, and are in addition to any and all other rights of either Party under applicable law. END USER acknowledges that each provision for the protection of AFRISOFT Property is material to this EULA, and that any threatened or actual breach which jeopardizes the confidential and/or proprietary nature thereof shall constitute immediate, irreparable harm to AFRISOFT and shall entitle AFRISOFT, in addition to any other remedies either ;may have at law or in equity (including recovery of damages), to injunctive relief or other similar or appropriate remedy or relief without posting bond as a condition of such relief.
  5. TERMINATION
    1. EULA Termination. Upon END USER’s discontinuance of use of Systems for any reason other than System malfunction, this EULA shall terminate immediately with respect to the applicable discontinued System/s; otherwise, this EULA may be terminated only as follows:
      1. By either Party for a material breach hereof by the other which remains uncured thirty (30) days after notice of such breach; or
      2. By AFRISOFT immediately:
        1. for any breach of Section 18;
        2. if any substantial change in END USER results in management, ownership, or control of END USER by a competitor, or by an entity with a subsidiary or other sub-unit that is a competitor, of AFRISOFT, or if END USER manages, owns, or controls a AFRISOFT competitor; or
        3. if END USER becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits appointment of a receiver for its business or assets, becomes subject to any proceedings under any domestic or foreign bankruptcy or insolvency law, or is liquidated, voluntarily or otherwise.
    2. Maintenance Termination. Maintenance may be terminated only as follows:
      1. immediately by AFRISOFT if END USER fails to pay AFRISOFT any amount due within ten (10) days after receipt of notice thereof;
      2. by either Party at the end of any Maintenance Term with thirty (30) days’ prior written notice;
      3. by END USER if AFRISOFT or any successor no longer offers Maintenance; or
      4. concurrently with termination or expiration for any reason of this EULA.
    3. Other. A cure period exercised hereunder shall not serve to toll, release, or reduce the Parties’ respective obligations or liability hereunder nor to bar AFRISOFT from exercising its rights and remedies as set forth in Section 19.4.
    4. Effects of Termination.
      1. Upon Maintenance termination, AFRISOFT shall have no further responsibility or liability therefor; however, all other provisions, including licensed uses and payment obligations, shall remain in full force and effect. Permitted termination of Maintenance shall terminate this EULA.
      2. EULA. Upon termination or expiration of this EULA for any reason:
        1. END USER shall immediately cease all uses of the System, remove all copies from any equipment on which they have been installed; and
        2. the license and all other rights and obligations of the Parties shall immediately terminate except for the provisions hereunder that by their content and context are intended to survive termination or expiration hereof, including the following sections:
          1. Scope and acceptance of these terms (Section 2)
          2. Grant of Rights (Section 13)
          3. Payment; Taxes (Section 14)
          4. Limited Warranties (Section 15)
          5. Disclaimer of Warranties (Section 16)
          6. Limitation of Liability (Section 17)
          7. Intellectual Property (Section 18)
          8. Governing Law, remedies and resolution (Section 19)
          9. Severability; No Waiver (Section 21.3)
            Which provisions shall continue and survive in full force and effect.
  6. GENERAL PROVISIONS
    1. Force Majeure Except for obligations of confidentiality and payment, neither Party shall be liable for any delay or failure in performing hereunder if caused by any factor beyond its reasonable control, and performance shall be deferred until such cause of delay is removed, provided that the delayed Party shall promptly notify the other Party of such occurrence.
    2. The Parties hereto are independent contractors in all relationships and actions contemplated hereunder, which shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship, or to authorize either Party to enter into any commitment binding on the other Party except as expressly stated herein. This EULA shall be binding upon and inure to the benefit of the Parties, their legal representatives, and their permitted successors and assigns.
    3. Severability; No Waiver. If any provision is declared legally invalid or unenforceable, the other provisions shall remain in full force and effect, and this EULA shall be deemed amended to replace, to the extent legally permitted, the rights and obligations contained in the invalid or unenforceable provision. The invalidity or unenforceability of any provision shall not constitute a failure of consideration hereunder. The failure or delay of either Party to enforce any provision hereof or to exercise any right or remedy granted hereunder shall not be deemed a waiver by that Party of any prior, contemporaneous, or future enforcement of provisions or exercise of rights or remedies hereunder. The express waiver of a provision shall be effective only if in a writing that explicitly references this EULA and only for the specific instance for which it was given.
    4. Notices and other communications required hereunder shall be made in writing and shall be deemed effectively given if made as follows: (a) if hand delivered, when received; (b) if sent via certified mail, return receipt requested (or its equivalent), (c) if faxed, on the date of the sending party’s receipt of confirmation of transmission; or (d) if mailed for overnight delivery, when delivered by the overnight carrier at the applicable address set forth on the Cover Page; (e) email notification sent through to : info@afrisoft.biz with proof of delivery attached. A notice address may be changed by giving notice in the manner set forth herein
    5. Non-solicitation. During the term of this EULA, and for a period of one (1) year immediately thereafter, END USER agree not to solicit any employee or independent contractor of the Company on behalf of any other business enterprise, nor shall END USER induce any employee or independent contractor associated with the Company to terminate or breach an employment, contractual or other relationship with the Company.

 

HARDWARE TERMS & CONDITIONS

Hardware procured from Afrisoft Africa (Pty) Ltd

The purchase of all goods sold by Afrisoft Africa (Pty) Ltd (AFRISOFT) pursuant to the order per EULA (“the goods”) shall be strictly subject to the following Standard Terms and Conditions of Sale:

  1. AFRISOFT procures goods from Third Party Suppliers, and resells goods to its clients as part of its Software System project execution and any ad hoc requests from its clients/ END USER / purchaser.
  2. AFRISOFT reserves the right to make use of any reputable Third Party Supplier.
  3. Every purchase of goods sold by AFRISOFT shall be subject to AFRISOFT and Third Party Supplier terms and conditions
  4. Payment per payment terms stated on the Quote shall be made in advance of goods ordered by AFRISOFT from Third Party Hardware Providers.
  5. Prices have been calculated according to the current exchange rates and customs values. AFRISOFT reserves the right to adjust prices, according to fluctuations in these rates.
  6. Delivery can take up to 8 weeks if no stock is on hand or available in the county from Third Party goods Suppliers.
  7. Warranty repairs are carry-in basis to our Third Party Suppliers nearest offices in your Region.
  8. Exclusions: Supply of any PC system software, hardware or media, programming tools or programming units, installation of any cabling or wiring or any other services –other than that quoted for.
  9. Ownership of the goods shall remain vested in AFRISOFT until payment in full therefore has been received by AFRISOFT. Risk in the goods shall pass to the purchaser immediately upon delivery of all or any part of such goods to the purchaser. Where delivery is effected by carrier, such carrier shall be deemed to the purchaser’s agent and delivery by AFRISOFT to such carrier shall constitute delivery to the purchaser.
  10. The goods or any part thereof, in AFRISOFT’s sole and absolute discretion may be accepted for credit/return if returned to AFRISOFT:
    1. Unused, with sealed disk packs and shrink-wrap fully intact, and
    2. At the purchaser’s sole expense, and
    3. The goods or any part thereof, are accompanied by a Request for Credit number and a copy of the original invoice.
  1. A 10% handling fee will be levied on goods returned in their original condition
  2. The purchaser shall be deemed to have inspected the goods at the time of signature of the Delivery Note therefore. The purchaser shall notify AFRISOFT in writing within 5 (five) days of delivery of goods of any alleged defects therein, failing which such goods shall be deemed to have been delivered in perfect condition and the purchaser shall not otherwise be entitled to return the goods or any part thereof to AFRISOFT nor to claim any reduction of the purchase price thereof arising from such alleged defectiveness. In the event of any defective goods being properly returned to AFRISOFT as provided for herein, AFRISOFT shall be entitled at its sole discretion to replace or repair such goods.
  3. No representations or warranties or other undertakings of any nature whatsoever shall be valid unless given in writing.
  4. AFRISOFT Ltd shall not be liable for any defect in any of the goods, whether patent or latent, nor shall AFRISOFT Ltd be liable for any loss or damage to the purchaser or any third party arising from any defect in the goods or any part thereof, and the purchaser hereby indemnifies AFRISOFT Ltd and holds it harmless against any claims so arising.
  5. In the event that goods are perceived as defective by purchaser, AFRISOFT can be contacted in writing or telephonically for a quote of the Third Party Supplier to inspect goods on site.
    1. Third Party Supplier terms and conditions prevail in event of defect and or call out of inspection.
  6. The foregoing provisions shall constitute the entire agreement between the purchaser and AFRISOFT in respect of the goods sold per order and no variation or amendment hereto shall be of any force or effect unless made in writing and signed by the parties hereto, nor shall the same be capable of rectification by any court of competent jurisdiction