Afrisoft Africa End User License Agreement
These Terms and Conditions shall apply to Your use of the TransLution™ Software System ordered and installed from Afrisoft Africa.
By using the Afrisoft Site and providing an Order to Afrisoft Africa you agree to be bound by the terms and conditions set out below.
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:
1.1 END USER: Counter party to the EULA who has submitted an Order to AFRISOFT for limited use of the TransLution™ Software System as specified in the Order. Relating to Hardware, also known as the Purchaser.
1.2 EULA: This EULA is a legal contract between AFRISOFT and the END USER of the Software System. 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.
1.3 Order: END USER’s Order to purchase software licenses and related services as specified in the Quote from AFRISOFT
1.4 Software System: Each TransLution™ Software license specified in Order.
1.5 Effective Date AFRISOFT’s acceptance of END USER’s Order or Signed Quote.
- Expenses: All reasonable out-of-pocket costs and expenses, including travel and living, incurred.
- Error: Is a reproducible failure of the software to operate as is described in the Software System documentation.
- Error Correction: Is the correction of any error through a modification to the Software System or to a supporting business process used to operate the system.
- Hardware: Computer hardware or other computer equipment purchased for use of the Software System.
- License Fee: AFRISOFT’s license fee for the right to use the Software System in effect at the time of END USER’s Order of same; or acceptance of Quote.
- 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 in Quote will be made available to END USER at no additional cost providing END USER is not in default of any provisions herein.
- Maintenance Fee: AFRISOFT’s then-current fee for an END USER’s right to receive Maintenance (“Maintenance“) during any Maintenance Term.
- Maintenance Term: Each one (1) year period of Maintenance, starting on the Effective Date, or any subsequent annual renewal specified per the Order.
- material breach: Is defined as failure to settle the fees due to AFRISOFT and violation of the Intellectual Property rights of AFRISOFT specified in this EULA.
- Payment: Payment in full of all obligations specified on Order, due and payable to AFRISOFT by END USER in terms of this EULA.
- Related parties to Afrisoft: TransLution Software LLC
- Site: Each physical location of the Software designated by a street address and registered with AFRISOFT on END USER Order.
- SLA: Service Level Agreement is a legal contract between Afrisoft and the End User of TransLution™. The SLA is contingent on a valid license and signed EULA. It sets out what the End User is entitled to in terms of the annual support fees paid.
- SOFTWARE BUG: A software bug is a defect that results in the TransLution™ Software System to not operate in the way described in the Software System Documentation.
- Software System documentation: is information about the as built and configured TransLution™ Software System. It contains descriptions of the business process that the TransLution™ Software System supports and functions in, data that the Software System collects, stores, and the operating perimeters of the TransLution™ Software System.
- Software License: A valid and binding Software License agreed to by END USER for the right to use the Software System.
2. EULA TERM
2.1 This EULA is contingent on the END USER having a valid license to use the Software System. If END USER’s license to use the Software System is terminated for any reason, this EULA will terminate effective at the same time and no further maintenance services will be provided for the Software System.
2.2 Initial Term; Renewal Terms. This EULA shall commence on the Effective Date and continue for the period specified in the Order, or if not so specified, for a period of twelve (12) months (“Initial Term“); and shall automatically renew at the end of the Initial Term for an additional twelve (12) month periods (each, a “Renewal Term“), subject to the termination provisions in Section 10.
3. Grant of Rights.
3.1 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. This EULA is personal to END USER, and expressly restricted to the number of copies of each Software 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, Maintenance Fees all of which shall be specified in the Order. END USER shall be deemed to automatically accept the Software 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 Software System. END USER shall not assign or otherwise transfer this EULA, the Software System, or any right or obligation hereunder.
3.2 Other Rights. This EULA also grants END USER the right to:
- a. 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.
- b. 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 Term for additional consecutive annual periods, subject to End User’s payment of the annual Maintenance Fee, unless earlier terminated pursuant to Section 10.2 below.
3.3 Exclusions. Except for Maintenance as specified herein, AFRISOFT shall not be responsible in any manner for:
- Providing the Software System Environment, a suitable installation site, or any utilities (including cables and outlets) required for Software System operation.
- Ensuring integrity, backup, or accurate conversion of all data to Software System-usable form.
- Third Party Products not provided by AFRISOFT or AFRSIOFT’s defined related party, 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.
- Support services, if no binding SLA in place.
3.4 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.
3.5 New Releases.
- Enhancements to existing configured functionality All Software Bug Fixesand Software Maintenance releases will be made available to the END USER on the day that it is generally available free of charge.
- Additional Functionality From time to time TransLution Software LLC will make available new releases of additional functionality not previously available in the TransLution™ Software System, possibly 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.
4. Payment; Taxes.
4.1 Payment. 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
4.2 Taxes. 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, its defined Related Party, it’s related third parties, and any of their Officers, Directors, Shareholders, Employees or Representatives 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 4.2.
4.3 Fee & Price Changes. All fees and prices, as set forth in Order may be increased by AFRISOFT at the start of any Renewal Term. AFRISOFT will provide END USER with written notice, 30 days in advance, of any such increase, and no increase may exceed an amount equal to the official inflation rate change as published for the Republic of South Africa since the prior fee or price was established for Maintenance services.
5. Limited Warranties.
5.1 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 (a) the TransLution™ Software System may not satisfy all of END USER’s requirements and (b) the use of the TransLution™ Software System may not be uninterrupted or error‑free, and (c) modification to the TransLution™ Software System by anyone other than AFRISOFT or its related party 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 TransLution™ Software System which may be provided under Maintenance.
5.2 Sole Remedy. As END USER’s sole and exclusive remedy under this limited TransLution™ Software System warranty, AFRISOFT shall, in its sole discretion, either (a) provide services to repair a nonconformity within this limited TransLution™ Software System warranty period, or (b) replace the nonconforming portion of the TransLution™ Software System. AFRISOFT shall not be obligated to correct, cure, or otherwise remedy any nonconformity in the TransLution™ 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.
6. Disclaimer of Warranties.
Except as provided in Section 5.1, the parties agree and acknowledge that the services specified herein are provided “as is” per the agreed signed Software System Documentation. AFRISOFT makes no warranties with respect to the Software System or any components thereof, other Products, or other goods or services provided by AFRISOFT and its defined related party, express, implied, or statutory, oral or written, including the implied warranties of merchantability, against infringement, and fitness for a particular use or purpose other than that defined in the Software System Documentation.
The Purpose of use of the Software System is defined in the Software System Documentation. For the avoidance of doubt, the purpose of the Software System is that defined in the Software System Documentation as amended from time to time
7. Limitation of Liability.
Unless otherwise expressly provided for herein or in the EULA, END USER acknowledges and agrees that in no event shall AFRISOFT, or AFRISOFT’s Parent, Subsidiary, Affiliate, defined Related Party or other Related Parties, or any of their Officers, Directors, Shareholders, Employees or Representatives, 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 TransLution™ Software System license fees, TransLution™ Software System 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 7 shall survive and continue in full force and effect despite any failure of essential purpose, consideration, or an exclusive remedy.
7.1 Negligence and Willful Acts. Each Party to this agreement undertakes to indemnify and hold harmless the other Party for any personal injury or tangible property damages caused by gross negligence or willful misconduct of the first Party.
8. Intellectual Property Protection.
- a. “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: (i) “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. (ii) “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 Software System, Enhancements, Maintenance, and Derivative Works thereof, and “Confidential Information” includes the terms of this EULA and any Dispute Resolution proceedings.
- “Intellectual Property” means the intangible legal rights or interests in, evidenced by, or embodied in Proprietary Information and in: (i) any invention, regardless of patentability, but including patents, designs, algorithms, and other industrial property rights; (ii) works of authorship, including patents, copyrights, moral rights, and mask works; (iii) registered and unregistered trademarks and service marks; (iv) 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 (v) all prior, current, and future registrations, applications, renewals, extensions, continuations, divisions, and reissues.
- “AFRISOFT Property” shall mean, respectively, AFRISOFT Intellectual Property, which shall include all originals and copies of: (i) utilities, benchmarks, diagnostics, and associated media, and manuals, reports, records, programs, and other materials, used or made by AFRISOFT in its performance hereunder; (ii) analytical processes, tools, techniques, methods, object and source code, and systems, including the system, employed or developed by AFRISOFT in connection with the TransLution™ Software System; (iii) information and materials related thereto and to AFRISOFT’s business; (iv) Enhancements, Derivative Works, and other intellectual property rights in or related to the TransLution™ Software System; and (v) data in any form provided by AFRISOFT (“AFRISOFT Data“).
- “Third Party Property sold by AFRISOFT” shall mean, respectively, all Software Systems sold by AFRISOFT on behalf of a related third party where AFRISOFT or its defined Related Party do not own the right, title, and interest.
8.2 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 8, whether during the term of this EULA or thereafter.
- AFRISOFT Property. END USER acknowledges that the TransLution™ Software System is unpublished and constitutes Afrisoft and its defined Related Party’s copyrights and Trade Secrets and, except for third party software provided by AFRISOFT with the Software System, that AFRISOFT and TransLution Software LLC owns all right, title, and interest in and to their respective Property. END USER is granted only a right to use the Software 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 and TransLution Software LLC Property. END USER shall take no action that jeopardizes AFRISOFT or TransLution Software LLC’s Property or acquire any right in same and shall keep the Software System free and clear of all claims, liens, and encumbrances whatsoever. END USER hereby assigns to AFRISOFT and TransLution Software LLC all copyrights (including moral rights), patents, patent applications, and other intellectual property rights and interests of any kind in and to AFRISOFT and TransLution Software LLC Property, and shall cooperate with AFRISOFT in the protection of AFRISOFT and TransLution Software LLC’s worldwide proprietary rights and interests therein, as requested by AFRISOFT.
8.3 Protection of Property. END USER shall not itself, and shall not permit any other party to: (a) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the Software System; alter, modify, or prepare Derivative Works based on any AFRISOFT or TransLution™ Software or other Proprietary third party Property; or use any AFRISOFT or TransLution Software LLC Property to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the Software System; (b) demonstrate or display the Software System or its operation to unauthorized parties; or use the Software System in a service bureau, outsourcing, or time-sharing environment; (c) 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 or TransLution Software LLC Property; or fail to ensure that all such notices, marks, and legends appear on all full or partial copies of AFRISOFT and TransLution Software LLC Property and any related material; or (d) by any means sell, sublicense, lease, assign, pledge, mortgage, encumber, transform, or otherwise distribute, dispose of, or transfer any AFRISOFT or TransLution Software LCC 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 Software 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 and TransLution Software LLC Property and prevent its subsequent unauthorized use or dissemination.
8.4 Confidentiality. The unauthorized disclosure or use of Proprietary Information of the other Party or of AFRISOFT and TransLution Software LLC 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 8.3, END USER and AFRISOFT each agrees that it: (a) shall maintain all other parties’ Proprietary Information in the strictest confidence, including compliance with reasonable remote access security requirements; (b) 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 (c) except as expressly permitted hereunder, shall not copy, duplicate, replicate, translate, transform, or otherwise reproduce such Proprietary Information.
8.5 Acceptable Use. END USER shall be responsible for continual compliance with this Section 8 and shall maintain the security of the Software System in accordance with this EULA. Violations include, and END USER shall investigate, actual or attempted: (a) access to a server, account, data, or application service provider services not intended for END USER’s use; (b) breach of security or authentication measures without proper authorization; (c) probe, scan, or test of the vulnerability of, or other interference with, the Software System; or (d) use of the Software System to create, transmit, distribute, or store material that: (i) violates the Intellectual Property rights or the privacy, publicity, or other personal rights of others; (ii) impairs the privacy of communications; or (iii) assists or permits any persons to engage in any of the prohibited activities described above.
8.6 Exceptions. Anything in this Section 8 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: (a) defers disclosure for the maximum time period permitted by law; (b) gives AFRISOFT prompt notice of such disclosure requirement; and (c) allows AFRISOFT the opportunity to defend against such disclosure.
8.7 Applicability. 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: (a) 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 (b) all other Confidential Information, during a period of five (5) years after the date of initial disclosure.
9. Governing Law; Remedies; Dispute resolution.
9.1 Governing Law. This EULA shall be governed by the laws of the jurisdiction in which AFRISOFT has its principal place of business in Johannesburg, South Africa.
- 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.
a. 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.
b. 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 regarding all matters relating thereto or arising therefrom, save as otherwise expressly and peremptorily required by law.
c. 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.
9.3 Equitable Remedies and Specific Performance. The Parties acknowledge that each provision in this EULA providing for the protection of the Proprietary Information of AFRISOFT, and END USER is material to this EULA. The Parties acknowledge that any threatened or actual breach of proprietary rights or disclosure of the Proprietary Information shall constitute immediate, irreparable harm to, for which the Party whose Propriety Information was disclosed shall be entitled to equitable remedies awarded by a court of competent jurisdiction
10.1 EULA Termination. Upon END USER’s discontinuance of use of Software Systems for any reason other than Software System malfunction, this EULA shall terminate immediately with respect to the applicable discontinued Software System/s; otherwise, this EULA may be terminated only as follows:
- By either Party for a material breach hereof by the other which remains uncured thirty (30) days after notice of such breach; or
- By AFRISOFT immediately: (i) for any breach of Section 8; (ii) 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 (iii) if either Party to this agreement 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;
10.2 Maintenance Termination. Maintenance may be terminated only as follows: (a) immediately by AFRISOFT if END USER fails to pay AFRISOFT any amount due within ten (10) days after receipt of notice thereof; (b) by either Party at the end of any Maintenance Term with thirty (30) days’ prior written notice; (c) by END USER if AFRISOFT or any successor no longer offers Maintenance; or (d) concurrently with termination or expiration for any reason of this EULA.
10.3 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 9.3.
10.4 Effects of Termination.
a. Maintenance. Upon 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.
b. EULA. Upon termination or expiration of this EULA for any reason: (i) END USER shall immediately cease all uses of the Software System, remove all copies from any equipment on which they have been installed; and (ii) 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 Sections, 3, 4, 5, 6, 7, 8 and 9, which provisions shall continue and survive in full force and effect.
11. General Provisions.
11.1 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.
11.2 Relationship. 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.
11.3 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 signed by authorized representatives of both Parties, and only for the specific instance for which it was given.
11.4 Notices. 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 : email@example.com with proof of delivery attached. A notice address may be changed by giving notice in the manner set forth herein
11.5 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.
12. ENTIRE EULA.
This EULA and all the related Exhibits attached constitute the entire EULA and understanding of the parties with respect to the subject matter hereof, and is intended as the parties’ final expression and complete and exclusive statement of the terms thereof, superseding all prior or contemporaneous EULA’s, representations, promises and understandings, whether written or oral, and may be amended or modified only by an instrument in writing signed by both parties.