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PSCAB South Africa (Pty) Ltd End User Licence Agreement | 1 of 11 By clicking on the "I Accept" option or by installing, copying or using this Software you agree to be bound by this End User Licence Agreement ("EULA"), the terms and conditions of which may be amended from time to time as set out below. The person signing or accepting these terms and conditions hereby warrants that he or she is duly authorised to accept these terms and conditions and conclude this Agreement on behalf of the person whose details are specified on the online Registration Form. By clicking the "I Accept" option, this is a symbol of your signature and your assent to all parts of this EULA. If you do not agree to this, do not install, copy or use this Software. The following Summary is provided for convenience only and does not form part of the EULA in so far as it conflicts with any provisions of the Full Agreement as set out below. SUMMARY Either Party can terminate this Agreement with immediate effect. An escalation of Search Fees can occur without notice. The Software is licensed on certain conditions, and not sold. PSCAB South Africa (Pty) Ltd is not liable for any damages related to the use of, or reliance on, the Software or any services.
FULL AGREEMENT
1. Definitions a. "Commencement Date" means the earlier of the date when registration is complete, software is installed, copied and/or used by you for the first time, and the date on which you accept the terms of this EULA as contemplated in clause 2; b. "EULA" or "Agreement" means this End User Licence Agreement, the terms and conditions as set out herein, and any updates or amendments thereof in accordance with clause 3, as read with the Corporate member registration/unemployed member registration or employed registration. c. “Intellectual Property” shall mean all present and future intellectual property rights in and to the Software, in whole or in part, including but not limited to patents, trademarks (whether registered, pending or unregistered in any form and/or nature whatsoever whether now used or adopted in the future), service marks, designs, design rights, all rights of copyright whether existing now or in the future in and to the Software including initial drawings, sketches, flow charts, designs and computer programs relating thereto, together with all related know-how, source codes, inventions, trade secrets, confidential information and all other rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same, and wherever the rights arise in the world; d. "Legal Costs" means any legal, professional and/or other fees, costs and/or disbursements (including the costs of any letter of demand, tracing agents fees and collection commissions), on the scale as between attorney and own client; e. "Material" means any information, data and/or document provided to you by or on behalf of PSCAB South Africa (Pty) Ltd pursuant to any of the Services; End User Licence Agreement (EULA) f. "On-Site Services" means services as contemplated in clause 6.c which services are rendered by or on behalf of PSCAB South Africa (Pty) Ltd at your premises or at any site requested by you, and which services are not Remote Assistance; g. "Parties" means PSCAB South Africa (Pty) Ltd and you, and "Party" means either of them; h. "Password" means: i. the company number issued to you by PSCAB South Africa (Pty) Ltd; and ii. in respect of each User, such User's User Password; i. "Member Fee” means the list of fees payable to PSCAB South Africa (Pty) Ltd in respect of each of its Services and in respect of each Request, as published on the Web Site on the Commencement Date and/or accessible by means of using the software, and as amended from time to time under clause 7; j. "Purpose" means the purpose of receiving the Services in accordance with this Agreement; k. "Request" means any request for PSCAB South Africa (Pty) Ltd to provide any Service and/or Material under this Agreement from time to time, which request is made or purportedly made by you or on your behalf by means of using the software as contemplated in this Agreement; l. "Remote Assistance" means any services or assistance in connection with the software as contemplated in clause 6.c which is provided to you telephonically or by some other electronic means by or on behalf of PSCAB South Africa (Pty) Ltd; m. "Fee" means the fee which is payable in respect of each employee registered under the profile, as specified in the Fee List from time to time, as amended from time to time under clause 7, subject to any volume discounts which may be applicable as specified in the Fee List from time to time; n. "Service" means the provision by PSCAB South Africa (Pty) Ltd to you from time to time of any information, data and/or document as may be made available to you and as requested by you by means of your use of the software as contemplated under this Agreement, for puposes of obtaining access to a data base of Applicants and their personal information for recruitment as Employees, and “Service” has a corresponding meaning. o. "Software" means the software, branded PSCAB South Africa (Pty) Ltd and/or any other name affiliated (subject to clause 2c below), provided to you by PSCAB South Africa (Pty) Ltd/or to which PSCAB South Africa (Pty) Ltd provides you with access under this EULA for purposes of requesting and receiving the Services contemplated in this Agreement, and any updates to or associated with such software which are provided or made available to you from time to time by or on behalf of PSCAB South Africa (Pty) Ltd; p. "Membership Application Form" means the form which you are required to complete and submit to PSCAB (Pty) Ltd on or before the Commencement Date, it being agreed that you and the person submitting the Members Application Form on your behalf hereby warrant that the contents of such form are true and correct as at the Commencement Date, and that you shall notify PSCAB (Pty) Ltd in writing of any changes to such contents from time to time; q. "Third Party" means any third party from whom PSCAB South Africa (Pty) Ltd obtains all or part of any Material, the identity of which third party PSCAB South Africa (Pty) Ltd shall use its reasonable endeavours to disclose on or before the provision to you of such Material, and "Third Parties" has a corresponding meaning; r. "User" and "your User" means any person who is employed by you, who is your agent and/or who acts or purports to act on your behalf and/or in accordance with your instruction by using the software and/or for any other purpose as contemplated under this Agreement; s. "User Password" means, in respect any User, the user number issued to you and/or such User by PSCAB South Africa (Pty) Ltd and the word, device and/or sign first issued to you and/or such User by PSCAB South Africa (Pty) Ltd (as amended from time to time by you and/or such User subject to confirmation by PSCAB South Africa (Pty) Ltd and/or by PSCAB South Africa (Pty) Ltd on request by you PSCAB South Africa (Pty) Ltd End User Licence Agreement | 3 of 11 and/or such User) that will entitle such User on your behalf to use the software in accordance with this EULA; t. "Web Site" means http://www.pscabsa.co.za or such other website specified by PSCAB South Africa (Pty) Ltd from time to time; u. "PSCAB South Africa (Pty) Ltd" means PSCAB South Africa (registration number 2017/190025/07). v. "PSCAB South Africa (Pty) Ltd staff" means any employee of PSCAB South Africa (Pty) Ltd, and any person acting on behalf of PSCAB South Africa (Pty) Ltd from time to time; and w. "you" means the person whose details are specified in the Duly Authorised section of the online registration, on whose behalf the person signing or accepting these terms and conditions concludes this Agreement, and "your" has a corresponding meaning.
2. Use of Software constitutes acceptance of this Agreement
a. By clicking on the "I Accept" option or by first installing, copying or using this software you agree to be bound by this End User Licence Agreement (EULA), the terms and conditions of which may be amended from time to time as set out below. By clicking the "I Accept" option, this is a symbol of your signature and your assent to all parts of this EULA. If you do not agree to this do not install, copy or use this Software. b. The person signing or accepting these terms and conditions hereby warrants that he or she is duly authorised to accept these terms and conditions and conclude this Agreement on behalf of the person whose details are specified in the online registration. c. Some parts of the software and some of the Material, as advised to you and/or any of your Users from time to time, are controlled by and/or obtained from other persons such as Afiswitch (Pty) Ltd and/or other Third Parties, and your rights to use such parts of the software and/or receive such Material are subject to further requirements which must be met and/or such further terms and conditions which must be agreed to by you before that part of the Software can be used and/or any Material obtained from such person will be provided under this Agreement, it being agreed that any such requirements and terms and conditions will, save where PSCAB South Africa (Pty) Ltd agrees otherwise in writing, apply in addition to those set out in this EULA. You specifically agree that, in order to use the part of the Software branded PSCAB South Africa (Pty) Ltd, you will be required to agree to further terms and conditions as contemplated in this clause 2c from time to time. 3. Amendment PSCAB South Africa (Pty) Ltd reserves the right to amend these terms and conditions and/or the Price List from time to time by posting notification on the Web Site and/or the software that the terms and conditions and/or the Price List have changed and/or by posting on the Web Site and/or the software the amended terms and conditions and/or Price List, or a hyperlink to such amended terms and conditions and/or Price List. You are advised to check, and will be responsible for checking, the prevailing terms and conditions and Price List as posted on the Web Site and/or the software from time to time before each use of the Software, and your continued use of the Software after any such amendment has been so posted, constitutes your deemed acceptance of this Agreement and the Price List as modified by the posted changes. PSCAB South Africa (Pty) Ltd shall, where it is practicable to do so, use its reasonable endeavours to notify you in advance of any amendment to the Price List as contemplated in this clause 3. 4. Grant of rights, and services a. Provided that you pay the Fees timeously as contemplated in this Agreement and provided that PSCAB South Africa (Pty) Ltd has approved you as an end user of the software and has issued to you a Password and has not, under this Agreement, suspended your right to use the Software and/or your access to any of the Services, PSCAB South Africa (Pty) Ltd hereby grants to you the following rights for the term of this Agreement, which you hereby accept subject to the terms and conditions set out in this Agreement (including but not limited to clause 2c and any requirements and terms and conditions contemplated in clause 2c): i. a non-transferable and non-exclusive licence to use the software for the Purpose; and ii. the right to make Requests by means of the software. Subject to the other provisions of this Agreement, PSCAB South Africa (Pty) Ltd undertakes to use its reasonable endeavours to provide you with such Service and/or Material as may be the subject of any such Request. b. You agree that your right to use and to continue to use the software under this Agreement is subject to PSCAB South Africa (Pty) Ltd receiving full and timeous payment of all amounts due to PSCAB South Africa (Pty) Ltd under this Agreement. c. You shall be entitled to obtain the software in the machine-readable form of object code only. You shall not have or be entitled to obtain the Software in source code. 5. Acceptable use a. In respect of your use of the software and your Request for and receipt of any Material, you agree to conform to generally acceptable Internet etiquette and to abide by PSCAB South Africa’s (Pty) Ltd operating policies as may be published on the Web Site from time to time, and as may be amended from time to time at PSCAB South Africa’s (Pty) Ltd sole discretion, and you hereby indemnify and hold PSCAB South Africa’s (Pty) Ltd free from liability in respect of any loss or damage of whatever nature caused as a result of any violations of such policy. b. You shall not, and shall procure that none of your Users shall: i. copy (other than in terms of this Agreement), adapt, translate or reproduce any of the Software, in whole or in part; ii. permit, whether directly or indirectly, any third party including any subsidiary, associate, director, shareholder, agent, User, representative and/or employee, to do anything which you are prohibited from doing as contemplated in this clause 5; iii. make or attempt to make any amendment or modification to the Software; iv. rent, lease, sell, sub-license, assign or otherwise transfer or make available any of the Software, in whole or in part, to any person or purport to do any of the aforegoing; v. remove any proprietary notices or labels on the Software, nor permit any person to do the aforegoing; vi. modify any part of the Software, or decompile, reverse compile, dissemble, reverse assemble or reverse engineer the Software, whether in whole or in part, or otherwise attempt to derive the source code of the Software or reduce the Software to a human readable form or print the source code or derive or attempt to derive the source code of the Software. c. You shall, at your own cost: i. ensure that all your Users will comply with the provisions of this Agreement; ii. make payment of all amounts outstanding to PSCAB South Africa (Pty) Ltd prior to making any claim against PSCAB South Africa (Pty) Ltd in terms of this Agreement, without any deduction and/or set-off of any kind whatsoever; iii. maintain accurate and up to date records of the number and siting of all copies of the Software and shall provide reasonable access to such records to PSCAB South Africa (Pty) Ltd upon PSCAB South Africa’s (Pty) Ltd request; and iv. maintain control of all equipment on which the Software is installed, and, if you transfer ownership and/or possession of any such equipment to any person, you shall ensure that all Software is permanently deleted from such equipment, and shall provide PSCAB South Africa (Pty) Ltd with written notice certifying that you have done so. d. You may not resell any Material, nor may you use any Material for monetary gain, unless permitted to do so in writing by PSCAB South Africa (Pty) Ltd. 6. Upgrading of Software, training and maintenance a. You shall upgrade the Software as and when PSCAB South Africa (Pty) Ltd makes any such upgrade available from time to time as contemplated in clause 6b, by means of installing any such upgrade. Failure to do so could result in the Software becoming inoperable or becoming obsolete in terms of complying with legislation and/or with industry practice and shall also entitle PSCAB South Africa (Pty) Ltd, without prejudice to its rights, to suspend your right to use the Software and/or your access to any of the Services. b. If practical, all upgrades to the Software will be made available on the Web Site. In addition these Software upgrades will be made available by other means, such as by Docex or post, on your request. PSCAB South Africa (Pty) Ltd will be entitled to charge you an additional fee plus value-added tax thereon, based on its staff's relevant hourly rates, should any PSCAB South Africa (Pty) Ltd staff be required to assist you to install Software upgrades. c. PSCAB South Africa (Pty) Ltd may, in its sole and absolute discretion, on request by you from time to time provide you with training services, support services and/or maintenance services in relation to your use of the Software. Any provision of such services to you by or on behalf of PSCAB South Africa (Pty) Ltd which are On-Site Services shall entitle PSCAB South Africa (Pty) Ltd to charge you an additional fee plus value-added tax thereon, based on PSCAB South Africa (Pty) Ltd staff's relevant hourly rates from time to time in respect of its provision of such services, and shall be subject to the terms of this EULA as amended by such additional or other terms, if any, as may be agreed between you and PSCAB South Africa (Pty) Ltd in writing from time to time. d. You acknowledge and agree that the services contemplated in clause 6c may be provided by Remote Assistance from time to time, which may include the use of a computer program to allow PSCAB South Africa (Pty) Ltd staff to be able to view and interact with the computer(s) being utilised by you and/or any of your Users. PSCAB South Africa (Pty) Ltd staff will only be able to provide this type of Remote Assistance on the instruction of one of your Users who will be able to view the changes made by PSCAB South Africa (Pty) Ltd staff on the computer of the User in question while the changes are being made. Each such instance or session of Remote Assistance using a computer program must be initiated by the User in question downloading a Remote Assistance program to such User's computer from a designated web site and cannot be initiated by PSCAB South Africa (Pty) Ltd without such download. You warrant that, save where otherwise expressly agreed with PSCAB South Africa (Pty) Ltd in writing, each of your Users has the authority to provide such instruction and effect such download, as contemplated in this clause. e. Once a Remote Assistance session has been concluded the Remote Assistance computer program will automatically uninstall and will be completely deleted from the User’s computer and a new session of Remote Assistance can only be initiated by such User by downloading a new Remote Assistance computer program in the same manner as described before.
7. Monthly Fees a. In consideration of all the rights derived by you under this Agreement, you shall pay to PSCAB South Africa (Pty) Ltd each month, in arrears as contemplated in this clause 7, the Monthly fee as per status rating in accordance with the Price List. b. All amounts due to PSCAB South Africa (Pty) Ltd under this Agreement from time to time shall be: i. exclusive of value-added tax, which shall be charged and recovered in addition to such amounts; and ii. subject to clause 7f below, shall be due and payable by you within 15 calendar days of the date of issue of an invoice in respect thereof by PSCAB South Africa (Pty) Ltd. c. PSCAB South Africa (Pty) Ltd may change the Monthly Fees by amending the Price List as contemplated in clause 3 from time without notice. d. Failure to make timeous and proper payment of any amount payable under this Agreement shall, without prejudice to PSCAB South Africa’s (Pty) Ltd rights, entitle PSCAB South Africa’s (Pty) Ltd to suspend your right to use the Software and/or your access to any of the Services, in PSCAB South Africa’s (Pty) Ltd’s sole discretion. e. You will make payment to PSCAB South Africa’s (Pty) Ltd of all amounts payable in terms of this Agreement free of exchange and without deduction or set-off of any nature. You will in no circumstances be entitled to defer or withhold payment of any amounts due in terms of this Agreement for any reason whatsoever, including but not limited to any Material being incomplete, inaccurate or incorrect. f. Upon termination of this Agreement you will pay all outstanding monies due to PSCAB South Africa’s (Pty) Ltd within 5 calendar days of receiving an invoice or statement in respect thereof from PSCAB South Africa’s (Pty) Ltd. g. This clause 7 shall survive termination of this Agreement. 8. Return or refund policy a. After the date of submission of the online registration Form and acceptance of this EULA by you or on your behalf, PSCAB South Africa’s (Pty) Ltd shall as soon as reasonably possible, but no later than 7 (seven) days, thereafter provide you with access to the Services, subject to the terms of this EULA. Accordingly, due to the immediate nature of the Services, there shall be no cooling-off period or refund applicable as described in s44 of the Electronic Communications and Transactions Act no 25 of 2002. b. Once a Request has been made, it may be stopped but the Member monthly Fee and any other monies due in respect of such Request will still be payable and shall not be refunded, since PSCAB South Africa’s (Pty) Ltd will in turn have paid and/or incurred a charge for the Material which forms the subject matter of such Request. PSCAB South Africa’s (Pty) Ltd shall not be held responsible for delays due to any act or omission of any Third Party. 9. Reservation of rights not expressly granted a. The Software is licensed in terms of this Agreement, and is not sold. b. You may not, without PSCAB South Africa’s (Pty) Ltd's prior written consent, use PSCAB South Africa’s (Pty) Ltd’s Intellectual Property, nor any Third Party's intellectual property, save as may be expressly provided in this Agreement. c. PSCAB South Africa’s (Pty) Ltd reserves all rights, including but not limited to Intellectual Property rights, not expressly granted herein. 10. Use of your Data/Privacy a. PSCAB South Africa (Pty) Ltd may use the information provided by you or on your behalf in the Subscriber Application Form and any data belonging to you but only in accordance with the terms of PSCAB South Africa (Pty) Ltd's prevailing privacy policy ("Privacy Policy") as published on the Web Site from time to time. b. You agree and acknowledge that the Privacy Policy published on the Web Site is updated regularly in order to allow for changes due to legislation and the increasing functionality of the Software. c. Each time you use the Software you agree to be bound by the then existing Privacy Policy as published on the Web Site.
11. Technical Specifications, security and password a. PSCAB South Africa (Pty) Ltd will advise you from time to time of various technical specifications which you will need to comply with in order for the Software to function successfully, and you acknowledge that failure to abide by these specifications could lead to a malfunction of the Software, the hardware used by you and/or third party software that is present on your computer, for which PSCAB South Africa (Pty) Ltd will not be held responsible, and you indemnify PSCAB South Africa (Pty) Ltd against all loss and damage arising from any such failure. b. You hereby agree and warrant, and shall procure that each User complies with the following: i. that the company number provided as part of the Password shall only be used for the personal use of your Users; ii. that each User's User Password will only be used for such User's personal use; iii. that neither you nor any User shall give, disclose or make available in any way the company number provided as part of the Password and/or such User's User Password to any other person for such person's use ("unauthorised use") and that you and each User shall maintain the confidentiality of any Password; iv. in the event that any unauthorised use takes place, that you shall pay immediately, on demand by PSCAB South Africa (Pty) Ltd , all amounts which PSCAB South Africa (Pty) Ltd may be required to pay to any person arising from the unauthorised use of any Password; and v. that, if for any reason any Password is no longer secure or may be accessible to or in the possession of any person other than a User authorised by PSCAB South Africa (Pty) Ltd, you shall immediately notify PSCAB South Africa (Pty) Ltd thereof, whereupon PSCAB South Africa (Pty) Ltd shall use its best endeavours to replace such Password within twenty four (24) hours after receipt of such notification. c. In order to ensure the security and reliable operation of the Web Site and Software for all end users of the Software PSCAB South Africa (Pty) Ltd, hereby reserves the right to take whatever action PSCAB South Africa (Pty) Ltd considers necessary to preserve the security and reliability of the Web Site and/or Software from time to time. d. You acknowledge and agree that you are prohibited from using the Web Site, Software and/or any Services and/or Material to compromise the security or tamper with the information, data, resources, accounts or records of any person. 12. Commencement and termination of Agreement This Agreement will commence on the Commencement Date and shall remain in force subject to termination in accordance with this Agreement and provided that either Party may cancel this Agreement immediately by means of written notice to the other Party. 13. Breach and termination a. Should you fail to observe and perform any of the terms, conditions or obligations in this Agreement, then PSCAB South Africa (Pty) Ltd shall be entitled, but not obliged, in its sole discretion and without prejudice to any of its rights that it may have in law, including the right to claim damages, without notice, to do the following: i. immediately terminate this Agreement and recover all its costs related to such termination, including Legal Costs; and/or ii. to terminate, without notice, your access to the Software and recover all its costs related to such termination, including Legal Costs. b. The expiry or termination of this Agreement shall be without prejudice to any rights that PSCAB South Africa (Pty) Ltd may have accrued as at the date of such expiry or termination. c. Upon termination of this Agreement: i. all rights granted to you under this Agreement will cease; and ii. you shall immediately cease all use of the Software and all use of PSCAB South Africa (Pty) Ltd's trade marks, logos and any intellectual property rights. 14. Intellectual property a. You acknowledge and agree that: i. save for the limited rights to use the Software as set out in this Agreement, you have no rights in respect of the Software, the source code and/or any related materials and any modifications or changes thereto, including without limitation to any and all Intellectual Property used or embodied in or in connection with the Software, and no Intellectual Property therein is granted or assigned under this Agreement; ii. you have no rights in respect of PSCAB South Africa (Pty) Ltd's trademarks and you shall not in any manner whatsoever represent that you are the owner or have any interest in PSCAB South Africa (Pty) Ltd's trademarks and shall not take any action to impute any right, title or interest of PSCAB South Africa (Pty) Ltd in and to you; iii. you shall not at any time, during or after termination of this Agreement, in any way question and/or dispute the ownership of the Software and the Intellectual Property embodied therein and shall not assist or counsel any other person to do so. You undertake not to infringe or prejudice any rights in and to the Software, nor compete with nor infringe PSCAB South Africa (Pty) Ltd's Intellectual Property rights in any way. You shall, specifically, not in any manner whatsoever represent that you are the owner of or have any interest in the Software and shall not take any action to impute any right, title or interest in and to the Software; and iv. you have no right and/or no title to the Intellectual Property in the Software, inclusive of any and all improvements, enhancements, new facilities and any amendments or modifications thereof. a. You hereby agree to indemnify and hold PSCAB South Africa (Pty) Ltd harmless against any loss, liability, damage, cost or expense (including Legal Costs) arising out of any use by you or any of your Users of any of PSCAB South Africa (Pty) Ltd's Intellectual Property and/or the Software in any manner whatsoever except in the manner expressly allowed under this Agreement. b. If during the term of this Agreement any infringement or illegal use of the Intellectual Property by any third party should come to your attention, then and in such event you shall notify PSCAB South Africa (Pty) Ltd forthwith in writing of such infringement or illegal use. It shall be within the sole discretion of PSCAB South Africa (Pty) Ltd to determine what steps shall be taken against an infringer and you shall co-operate fully with PSCAB South Africa (Pty) Ltd in whatever measures, including legal action, are taken to bring any infringement or illegal use to an end. 15. Warranties a. To the maximum extent permitted, all warranties, conditions and terms that are not expressly set out in this Agreement are excluded whether express or implied. b. You agree and acknowledge that all Material is obtained from a Third Party and that PSCAB South Africa (Pty) Ltd has no liability or responsibility for any such Material. All such Material is intended and provided for general informational purposes only and should not be relied upon by you or any person as specific advice of any kind, whether professional, technical or other. Furthermore, such Material may contain errors or inaccuracy, may be incomplete and/or out of date, and you hereby agree to make your own independent investigations as to the accuracy of such Material, and shall bear full responsibility for checking and verifying any such Material with the Third Party from which PSCAB South Africa (Pty) Ltd obtained such Material. c. You warrant that you shall at all times comply with all applicable legal or regulatory requirements and constraints in regard to your access to and/or use of the Services and/or Material, failing which you may not use the Software or access the Web Site or make any Request or receive any of the Services and/or Material. 16. Disclaimer and exclusion and limitation of liability a. While every effort is made to eliminate any errors, you acknowledge that no software is error-free and so this Software is provided "as is". Furthermore, PSCAB South Africa (Pty) Ltd makes no warranties, either expressed or implied, in respect of the Software. PSCAB South Africa (Pty) Ltd expressly disclaims any warranty as to the performance of the Software or as to any Material. PSCAB South Africa (Pty) Ltd also expressly disclaims all other warranties, including (without limitation) implied warranties of merchantability and fitness for a particular purpose. You agree to back-up your data regularly. b. PSCAB South Africa (Pty) Ltd shall not be liable to you or any other person or entity whatsoever in respect of (and you or any such person or entity shall have no claim against PSCAB South Africa (Pty) Ltd and/or any person acting on behalf of PSCAB South Africa (Pty) Ltd and you hereby indemnify and hold PSCAB South Africa (Pty) Ltd and any such person acting on behalf of PSCAB South Africa (Pty) Ltd free from liability in respect of) any loss or damage (even if PSCAB South Africa (Pty) Ltd had been advised of or should otherwise be aware of the possibility of such loss or damage), save for any loss or damage directly and solely caused by the gross negligence of any employee of PSCAB South Africa (Pty) Ltd acting in the course and scope of such employment: i. caused by any of the following: l any use of the Software, irrespective of the manner in which it was caused; l any disclosure or use by you or any other person of any Material; l any reliance by you or any other person on any Material; l use of any hardware, infrastructure, equipment and/or any software other than the Software; l any failure by you or any of your Users to comply with the provisions of this Agreement; l any operation of the Software by any person not properly trained in accordance with the directions of PSCAB South Africa (Pty) Ltd from time to time; l improper use, misuse, neglect or abuse of the Software; l the loss of privacy and a failure to meet a duty; ii. which is as a result of any downtime, outage, interruption in or unavailability of the Internet and/or the Web Site, attributable to any cause whatsoever, including but not limited to: repairs and maintenance, any breakdown of whatever nature and howsoever arising in any of the services provided by any communications service provider (including, but not limited to, line failure) as well as by any external communications networks and/or by the networks of any Internet service provider; iii. which is caused by any cause external to the Software, including but not limited to any failure in any hardware on which the Software is operational, any force majeure and/or any circumstance which is beyond the control of PSCAB South Africa (Pty) Ltd; iv. of whatever nature and howsoever arising from or in connection with any service and/or any Material; v. arising from the loss of data and/or incompatibility with or damage to any equipment owned and/or utilised by you; vi. incurred as a result of or in any way related to the acts or omissions of any PSCAB South Africa (Pty) Ltd staff in relation to, without limitation, commissioning, implementing, installing, training, assistance or any service provided in relation to the Software, including but not limited to the services contemplated in clause 6.c and including Remote Assistance and On-Site Services; vii. arising from any failure by any person to reactivate or enable any firewall or security mechanism after the provision of any services under this Agreement, including but not limited to any On-Site Services and/or any Remote Assistance; viii. arising from any breach of any security system which may be implemented by PSCAB South Africa (Pty) Ltd, any Third Party or any other person whatsoever; ix. which loss or damage is loss of income, loss of goodwill or profits, business interruption, procurement of substitute computer equipment, loss or corruption of data or business information or other pecuniary loss arising out of delay of delivery, reliance in the use or inability to use the Software; and/or x. x. which loss or damage is consequential or incidental loss or damage or any loss or damage other than direct damages, it being agreed that in no event shall PSCAB South Africa (Pty) Ltd be liable to you or any other person for any consequential, incidental, indirect, special or other damages whatsoever, regardless of whether such loss, damage or liability is based on breach of this Agreement, delict (including from gross negligence), or otherwise. c. Without in any way limiting the provisions of clause 16b above, the aggregate maximum liability of PSCAB South Africa (Pty) Ltd under or arising from this Agreement to you and to any person whatsoever from any causes of action whatsoever (regardless of whether such liability arises from breach or termination of this Agreement or delict, including from gross negligence or otherwise, and including any claim or liability for damages) which causes of action arise during: i. the period of 12 (twelve) months commencing on the Commencement Date, shall be limited to an aggregate amount equal to the aggregate of Monthly Fees paid under this Agreement during such period; and ii. in any subsequent successive period of 12 (twelve) months commencing on any anniversary of the Commencement Date, shall be limited to an aggregate amount equal to the aggregate of Monthly Fees paid under this Agreement during the previous period of 12 months. d. This clause 16 shall survive termination of this Agreement. 17. Cession a. You shall not be entitled to cede or otherwise transfer any of your rights, nor delegate or otherwise transfer any of your obligations, under this Agreement, without PSCAB South Africa (Pty) Ltd's prior written consent. b. PSCAB South Africa (Pty) Ltd shall however be entitled to cede, assign and/or transfer and/or delegate to any third party at its absolute discretion all or any of its rights or obligations under this Agreement without notice to you, and without your consent, provided that any third party acquiring any such rights pursuant to a cession or assignment shall agree with PSCAB South Africa (Pty) Ltd to be bound by the terms of this Agreement. 18. Legal Costs If, as a result of any breach by you of any of the terms of this Agreement, PSCAB South Africa (Pty) Ltd incurs any legal, professional and/or other fees, costs and/or disbursements (including the costs of any letter of demand, racing agents fees and collection commissions), you shall be liable for and shall pay on demand, all fees, costs and disbursements so incurred, on the scale as between attorney and own client. 19. Entire agreement, and no representations a. This Agreement comprises of the entire agreement between the Parties in relation to its subject matter, and it supersedes any written or oral representations, be they express or implied, and any prior agreements between you and PSCAB South Africa (Pty) Ltd concerning the Software. b. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not expressly recorded in this Agreement. 20. South African law This Agreement shall be governed by and interpreted according to the laws of the Republic of South Africa and, in the event of any conflict between or inconsistency in the laws applicable in the various provinces of the Republic of South Africa, the law as applied and interpreted in the Province of Mpumalanga Cape will prevail. 21. Failure to enforce rights Failure by PSCAB South Africa (Pty) Ltd to enforce a right as provided in this Agreement will not constitute a waiver in respect of that right. 22. Contact Information (domicilium citandi et executandi) Each of the Parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement as follows: a. you: your address as specified in the Subscriber Application Form; b. PSCAB South Africa (Pty) Ltd C12 Avontuur Badplaas Mpumalanga 1190 South Africa |