3 June 2019
1.1 In this Agreement, unless inconsistent with or otherwise indicated by the context: -
1.1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity
1.1.2 “Agreement” means:
1.1.3 “Customer” means the client which subscribed to the use of the Software in terms of an Order Form;
1.1.4 “Customer Data” means the data and information supplied and / or entered by the Customer for use on the Software or with the Services;
1.1.5 “CPA” means the Consumer Protection Act, No. 68 of 2008;
1.1.6 “Custom Reports” means the service offered by Skynamo that can be used by the Customer to develop custom reports and dashboard tiles;
1.1.7 “Data Entry” means the entry of Customer Data in the Software;
1.1.8 “Data Maintenance” means the maintenance of the Customer Data in the Software;
1.1.9 “Data Protection Legislation” means any applicable data protection legislation including, but not limited to, POPI and GDPR;
1.1.10 “Force Majeure” means any event or circumstance which is not within the reasonable control of the affected party including vis major, casus fortuitus, any act of God, strike, theft, fire, power failure, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, the downtime of any communications line and/or unavailability of any telecommunications facility or infrastructure, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control, and shortage of transport facilities, any cyber-attack, outage Incident or event where the Software is hacked;
1.1.11 “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016;
1.1.12 “License” means the right granted by Skynamo and/or a VAR to the Customer to authorise Customer and an individual User of the Customer to use the Software;
1.1.13 “Licensed User” means those Users of the Customer for which a License has been issued and has, accordingly, been authorised to use the Software;
1.1.14 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;
1.1.15 “Non-Skynamo Application” means a web-based, mobile, offline or other software process or functionality that is provided by the Customer or a third party and interoperates with the Software, including, but not limited to Enterprise Resource Planning software and Accounting software;
1.1.16 "Once-Off Charges" means those amounts payable by the Customer in terms of the Order Form which is not payable on a monthly basis but payable once off, including setup fees;
1.1.18 “Parties” means Skynamo and the Customer, and “Party” means either one of them, as the context may indicate or require;
1.1.19 “Personal Information” means personal information as defined in POPI and personal data as defined in the GDPR or any other similar or related definition in any applicable Data Protection Legislation;
1.1.20 “POPI” means the Protection of Personal Information Act, No. 4 of 2013;
1.1.21 “Prime Rate” means the prime rate of interest publicly quoted as such by Absa Bank Limited, as certified by any manager of such bank, whose appointment as such shall not be necessary to prove, and which certificate shall constitute prima facie proof of that rate;
1.1.22 “Services” means the Services that Customer subscribed to in terms of the Order Form;
1.1.23 “Setup” means the process of implementation of the Software with the Customer which process includes a setup discussion, data verification, creation of a unique Skynamo instance, integration with any other software (if applicable), analytics reports, data imports, instance configuration and quality checks and which process is completed once the Customer receives their user credentials;
1.1.24 “Skynamo” means Skynamo (Pty) Ltd (registration number: 2012/052717/07) having a primary place of business at 11 Neutron Road, Capital Place Office Park, Technopark, Stellenbosch, 7600 (e-mail: firstname.lastname@example.org);
1.1.25 “Software” means the software system developed by Skynamo as licensed to the Customer, which incorporates mobile software, online databases, browser interfaces and documentation. Any reference to the Software refers to all these components;
1.1.26 “Subscription” means the specific subscription at a specific cost in terms of which the Customer uses the Software;
1.1.27 “Subscription Fee” means the monthly or yearly fee paid or payable by the Customer for the Licenses issued and the use of the Software;
1.1.28 “Technical Support” means those employees and/or representatives of Skynamo or of one of Skynamo’s VARs, whichever may be applicable, appointed to assist Users with technical queries relating to the Software;
1.1.30 “Third Party” means any person or entity which is not a party to this Agreement;
1.1.31 “Users” means the employees and/or managers of the Customer who uses the Software in terms of the Customer’s Subscription;
1.1.32 “VAR” means a Value-Added Reseller which has been authorised by Skynamo to resell and sub-license the Software, including Skynamo Ltd, a private limited company incorporated and registered in England and Wales with registration number 11039559 and Skynamo Inc., a corporation formed under the laws of the State of Delaware.
1.2 In this Agreement, words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing persons shall include partnerships, trusts and bodies corporate, and vice versa.
1.3 The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
1.4 Each of the provisions contained in this Agreement shall be construed as independent of every other such provision to the effect that if any provisions of this Agreement shall be determined to be illegal, invalid and/or unenforceable then such determination shall not affect any other provisions of this Agreement all of which shall remain in full force and effect.
1.5 The Parties acknowledge and agree that they have had equal opportunity to take legal advice and to negotiate this Agreement and the “contra proferentum-rule” (and any other rule of interpretation that provides that this Agreement shall be interpreted against the party responsible for the drafting or preparation of this Agreement) shall not apply.
1.6 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause.
1.7.1 MAY LIMIT THE RISK OR LIABILITY OF SKYNAMO; AND/OR
1.7.2 MAY CREATE RISK OR LIABILITY FOR THE CUSTOMER; AND/OR
1.7.3 MAY CREATE LIABILITY FOR THE CUSTOMER TO INDEMNIFY SKYNAMO; AND/OR
1.7.4 SERVES AS AN ACKNOWLEDGEMENT, BY THE CUSTOMER, OF A FACT.
2.1 Skynamo and/or a VAR issued a licence to Customer for the use of the Software and will supply the Customer with an instance of the database and browser components for using the Software online. Skynamo and/or the VAR will further provide the Customer with the Services relating to the use of the Software.
2.2 This Agreement sets out the terms and conditions that apply to Customer’s use of the Software and the obligations of the Parties in this respect.
3.2 This Agreement regulates the relationship between the Parties in respect of the use of the Software.
4. Software Licenses and Subscriptions
4.1 Skynamo and/or the VAR will issue one license to the Customer for each User subscribed by the Customer in terms the Customer’s Subscription, for the use of the Software.
4.2 The License grants the Customer (and Customer’s Licensed User) the non-exclusive, non-transferrable right and license to, subject to the terms and provisions of this Agreement:
4.2.1 Use the Software on mobile devices and to access the online components of the Software through a browser; and
4.2.2 Print portions of the electronic or online documentation for reasonable use by Licensed Users.
4.3 The Licenses granted confers no title to or ownership in the Software to the Customer. Skynamo’s third party suppliers may protect their rights in the event of any violation of any of the terms of this Agreement.
4.4 Nothing in this Agreement obliges Skynamo to make service development decisions under the direction of Customer or to make changes to the Software at the instruction of the Customer.
4.5 Customer grants to Skynamo a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Software and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Software and the Services.
5. Skynamo’s Responsibilities
5.1 Skynamo will:
5.1.1 Make the Software available to Customer pursuant to this Agreement and any applicable Order Forms;
5.1.2 Use all commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for:
22.214.171.124 Planned downtime (of which Skynamo shall give advance electronic notice); and
126.96.36.199 Any unavailability caused by circumstances beyond Skynamo’s reasonable control, including, Force Majeure, internet service provider failure or delay, failure or non-functionality of a Non-Skynamo Application, or a denial of service attack.
6. Customer’s Responsibilities
6.1 Data Entry and Data Maintenance is the sole responsibility of the Customer. Should it be necessary for Skynamo to deal with any Data Entry on behalf of Customer, the Customer undertakes to supply all data in Excel or CSV format in templates provided by Skynamo.
6.2 Customer will:
6.2.1 Be responsible for Users’ compliance with this Agreement;
6.2.2 Be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Software and Services;
6.2.3 Use all commercially reasonable efforts to prevent unauthorised access and use of the Software and will notify Skynamo and/or the VAR promptly of any such unauthorised access and/or use;
6.2.4 Use the Software and the Services only in accordance with this Agreement and any applicable laws and/or government regulations; and
6.2.5 Comply with the terms of service of any Non-Skynamo Applications with which Customer uses the Software and/or the Services.
6.3 The Customer will not (and will ensure that its Users also do not):
6.3.1 Make the Software or the Services available to anyone other than the designated Users, or use the Software or the Services for the benefit of anyone other than the Customer;
6.3.2 Sell, resell, license, sublicense, distribute, make available, rent or lease the Software or the Services;
6.3.3 Rent, lease, sell, cede, license, sub-license, publish, display, distribute, disseminate, assign or otherwise transfer the license granted to Customer to a third party;
6.3.4 Use the Software to transmit Malicious Code;
6.3.5 Use the Software in a manner which is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit image, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or is otherwise illegal or causes damage or injury to any person or property;
6.3.6 Attempt to gain unauthorised access to any component of the Software or its related systems or networks;
6.3.7 Modify, copy, reproduce, or create derivative works based on the Software or the Services or any part, feature, function or user interface thereof;
6.3.8 Remove, add, alter, obscure any trademarks, trade names, logos, patent or copyright notices or markings, proprietary and/or other legal notices on or in the Software;
6.3.9 Interfere with or disrupt the integrity or performance of the Software or third-party data contained therein;
6.3.10 Incorporate the Software into any other software or hardware product;
6.3.11 Private label or private brand the Software or any portion thereof or include any other party’s marks or legends on the Software or any portion thereof;
6.3.12 Frame or mirror any part of any Software or Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted under this Agreement;
6.3.13 Provide access (directly or indirectly) to the Software via the Internet or any file-sharing method or system;
6.3.14 Disassemble, reverse engineer, or decompile the Software or the Services, or access it to:
188.8.131.52 Build a competitive product or service;
184.108.40.206 Build a product or service using similar ideas, features, functions or graphics as the Software or the Services;
220.127.116.11 Copy any ideas, features, functions or graphics of the Service or the Software; or,
18.104.22.168 Determine whether the Software is within the scope of any patent.
6.4 Any use of the Software or the Services in breach of this Agreement, by Customer or by any of its Users, which in Skynamo’s judgment threatens the security, integrity or availability of the Software or the Services, may result in the immediate suspension of the Software and the Services. Skynamo will, however, use all commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
7. Skynamo Services and Support
7.1 Skynamo uses third parties to provide cellular network coverage. Neither Skynamo nor the VAR can be held responsible for poor network quality or network downtime.
7.2 Skynamo will monitor the availability of the Software by automatically triggering an order every 30 minutes between 4:00 and 23:00 CAT every day. If that order has not arrived in a monitored email inbox within 30 (thirty) minutes, the system will automatically alert Technical Support that there is a service incident. Skynamo maintains a log of every service incident, including the reason and the outage duration. This list is available upon request to the Customer.
7.3 Planned maintenance and upgrades will trigger outage incidents. Planned maintenance will be announced on the Skynamo user interface at least 24 (twenty-four) hours prior to the downtime. Planned maintenance will be scheduled for after 17:00 CAT as far as reasonably possible.
7.4 The role of Technical Support is to assist the Customer in using the Software and to troubleshoot any problems and find the source of the error. The role of Technical Support is not to be an outsourced administration office.
8. Remote Access
8.1 In certain cases where Skynamo’s Technical Support is not able to diagnose or resolve a support query from a Customer, Technical Support may request access to Customer’s servers and/or computer(s) (“Systems”) experiencing the issues in order to resolve the problem and provide the necessary support services (“Remote Access”).
8.2 In order for Technical Support to get Remote Access, Customer will need to have remote desktop capabilities on the Systems. In such a case, the Customer authorises Skynamo to remotely access its Systems and, consequently, its data solely for the purpose of providing the required support services.
8.3 Customer agrees to backup all of its data prior to providing Skynamo with Remote Access.
8.4 Skynamo will not be liable for any loss or damage suffered by Customer due to the Remote Access of Customer’s Systems and Customer hereby indemnifies and agrees to hold Skynamo harmless against any and all losses that may arise in connection with such Remote Access.
9. Data Retention and Backup
9.1 Skynamo will make a full backup of all Customer Data once a week (“Backup Cycle”). Each evening, Skynamo will make an incremental backup. These backups are kept for 4 (four) Backup Cycles in high availability storage (http://aws.amazon.com/s3/). Backups resides in the region it was created.
9.2 Data on the live instance of the Software may be trimmed as follows as the need arises:
9.2.1 Logs are trimmed monthly to 3 (three) months’ data;
9.2.2 Track points, time segments and route segments are trimmed monthly to 6 (six) months’ data;
9.2.3 All customer interactions and other events (for example scheduled visits, visits, forms, photos, reimbursement claims) are trimmed monthly to 25 (twenty-five) months’ data; and,
9.2.4 On the mobile application, only the most recent interactions, orders etc. may be synced down due to space concerns.
Skynamo makes use of sub-processors in order to carry out some of its processing functions. By making use of the Software, the Customer agrees to Skynamo making use of such sub-processors.
11. Protection of Customer Data
11.1 Skynamo acknowledges that in providing the Services to Customer, Skynamo will be exposed to Customer Data, including Personal Information relating to Customer’s employees, customers and clients.
11.2 Skynamo will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in accordance with international best practice in respect of data protection and control.
11.3 Skynamo shall not, at any time, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use Customer Data for any purpose other than expressed under this Agreement and to the extent necessary to provide the Services, unless with the express prior written consent of Customer.
11.4 Skynamo will not be responsible for any loss of data by third party storage providers.
11.5 Data Protection Legislation
11.5.1 The Customer and Skynamo take specific note of the provisions of any applicable Data Protection Legislation. The Customer further notes that Personal Information forming part of Customer Data entered into the Software by Users and/or Skynamo and/or any representative of the Customer, may under no circumstances be made available to a Third Party for any purpose whatsoever.
11.5.2 The Customer shall ensure that only approved members of the Customer’s management team are given access to Customer Data on the Software, subject to the necessary obligations of confidentiality being imposed on such members of the management team. This data may only be processed or used for legitimate business purposes. Any person who is given access to such information shall be made aware of the terms and conditions of this Agreement and of any applicable Data Protection Legislation.
11.6 The Customer is responsible for making its Users aware of the Personal Information being collected while they use the Software and to obtain any required consent in terms of Data Protection Legislation. It is further also the Customer’s responsibility to ensure that it complies with all applicable Data Protection Legislation.
12. Non-Skynamo Applications
12.1 The Software can be integrated with Non-Skynamo Applications such as Enterprise Resource Planning systems (e.g. Sage X3).
12.2 In such a case the Software is, and will remain, the property of Skynamo and Skynamo is not an agent, partner or authorised representative of the Non-Skynamo Application and no legal relationship, whether contractual or otherwise, exists between the Customer and the Non-Skynamo Application in respect of the Software.
12.3 The Non-Skynamo Application will not accept any responsibility for any defects in the Software or documentation provided by Skynamo and the Non-Skynamo Application is not responsible for the support and/or maintenance of the Software.
13. Confidentiality and Non-Disclosure
13.1 For the purposes of this clause 13, Confidential Information will mean any and all information, whether written (including information contained in electronic format) or oral which pertains to all intellectual property rights, trade secrets or information which relates to the business of the Customer and/or Skynamo, including, but not limited to, Customer Data, the identity and terms of strategic business relationships, specifications, reports, plans, forecasts, customer lists, current or historical data, business plans, reports, and all other business data.
13.2 In using the Software, each Party (“Disclosing Party”) will disclose Confidential Information to the other Party (“Receiving Party”) and the Receiving Party will have access to Confidential Information of the Disclosing Party.
13.3 The Disclosing Party is the sole legal and beneficial owner of all Confidential Information and wishes to ensure that the Receiving Party maintains the confidentiality of the Confidential Information.
13.4 All information which is made available to the Receiving Party, will be deemed to be Confidential Information and will be subject to the provisions contained herein.
13.5 Receiving Party hereby undertakes, in favour of the Disclosing Party during the existence of this Agreement, or at any time thereafter, to:
13.5.1 Not divulge or disclose (whether directly or indirectly) Confidential Information (or any portion thereof) to any other parties in any form or manner whatsoever;
13.5.2 Advise all receiving persons with access to the Confidential Information of the obligation to protect the Confidential Information; and
13.5.3 Not use, exploit, permit the use of, or in any other manner whatsoever apply the Confidential Information or any portion thereof for its own benefit or for any other purpose whatsoever other than for the purpose for which it was provided and otherwise than in accordance with the provisions of this Agreement; and,
13.5.4 Take all such steps as may be necessary to prevent the Confidential Information falling into the hands of unauthorised third parties.
13.6 The above undertakings relating to confidentiality and non-disclosure will not apply to any information which:
13.6.1 the Receiving Party can demonstrate was acquired by it independently from a third party acting in good faith which has not previously obtained the Confidential Information directly or indirectly under a confidentiality obligation from the Disclosing Party, as proved by Receiving Party’s written records;
13.6.2 is received from a third-party without restriction and without breach of an agreement with the Disclosing Party;
13.6.3 is independently developed by the Receiving Party as evidenced by its written records;
13.6.4 is made public by the Disclosing Party or which otherwise is or hereafter becomes part of the public domain through no wrongful act, fault or negligence on the part of the Receiving Party; or,
13.6.5 is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time, provided that in such circumstances the Receiving Party will give the Disclosing Party sufficient prior written notice of such request so as to enable the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard, provided that the Receiving Party will only disclose that portion of the Confidential Information which it is legally required to disclose and the Receiving Party will use all reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances.
13.7 In the event that any Confidential Information shall be copied, disclosed or used otherwise than as permitted under this Agreement then, upon becoming aware of same, the Receiving Party shall as soon as practicable notify the Disclosing Party of such event and, if requested by the Disclosing Party, take such steps (including the institution of legal proceedings) as shall be necessary to remedy (if capable of remedy) the default and/or to prevent further unauthorised copying, disclosure or use.
14. Customer’s choice of Data Package
14.1 The Customer acknowledges that the Software requires an active Internet connection and that, if Users’ devices are not connected to Wi-Fi, the Software will use the data connection available on the device (and therefore the data loaded on the device).
14.2 Skynamo expressly recommends to Customer that Customer restrict out-of-bundle data options and availability on all User devices in order to avoid accidental or excessive data costs.
14.3 Under no circumstances will Skynamo be liable to Customer or Users for any data costs relating to the use of the Software.
15.1 USE OF THE SOFTWARE WILL BE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER AND USERS AND CUSTOMER HEREBY INDEMNIFIES AND AGREES TO HOLD SKYNAMO HARMLESS AGAINST ANY AND ALL LOSSES THAT MAY ARISE IN CONNECTION WITH SUCH USE OF THE SOFTWARE.
15.2 THE CUSTOMER SPECIFICALLY INDEMNIFIES AND AGREES TO HOLD SKYNAMO HARMLESS AGAINST ANY AND ALL CLAIMS, ARISING FOR WHATSOEVER REASON, BY USERS, EMPLOYEES OR REPRESENTATIVES OF THE CUSTOMER RELATING TO THE USE OF THE SOFTWARE.
16. Exclusion of Consequential or Related Damages
IN NO EVENT WILL SKYNAMO OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, DELICT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
17. Limitation of Liability
17.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SKYNAMO SHALL NOT BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL OR EXPENSE OF WHATSOEVER NATURE AND HOWSOEVER ARISING WHICH IS CAUSED BY OR ATTRIBUTABLE TO –
17.1.1 ACTS, OMISSIONS OR A BREACH OF THIS AGREEMENT BY THE CUSTOMER OR ITS USERS;
17.1.2 THE FACT THAT THE SOFTWARE OR THE SERVICES ARE NOT FUNCTIONING PROPERLY OR AT ALL AT ANY PARTICULAR STAGE;
17.1.3 A DELAY IN PROVIDING OR REPAIRING THE SOFTWARE OR THE SERVICES OR THE TOTAL OR PARTIAL INTERRUPTION OF THE SOFTWARE OR THE SERVICES;
17.1.4 ANY ACT OR OMISSION OF SKYNAMO, ITS SERVANTS, AGENTS AND SUBCONTRACTORS AND/OR ANY BREACH OF SKYNAMO’S OBLIGATIONS IN TERMS OF THIS AGREEMENT;
17.1.5 LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET;
17.1.6 THE UNLAWFUL OR FRAUDULENT ACCESSING BY A THIRD PARTY OF THE CUSTOMER’S TELECOMMUNICATION LINES, PBX (PRIVATE BRANCH EXCHANGE) OR ANOTHER TELECOMMUNICATION EQUIPMENT. IN SUCH CIRCUMSTANCES, THE CUSTOMER SHALL REMAIN LIABLE FOR ALL SERVICE CHARGES INCURRED PURSUANT TO SUCH UNLAWFUL OR FRAUDULENT ACCESS AND HEREBY INDEMNIFIES SKYNAMO AGAINST ALL LOSS, LIABILITY, DAMAGE OR EXPENSE WHICH IT MAY SUFFER AS A RESULT THEREOF.
17.2 BECAUSE OF THE NEED TO CONDUCT MAINTENANCE, REPAIR AND/OR IMPROVEMENT WORK FROM TIME TO TIME ON THE TECHNICAL INFRASTRUCTURE BY MEANS OF WHICH THE SERVICES ARE PROVIDED, THE PROVISION OF THE SERVICES MAY BE SUSPENDED FROM TIME TO TIME WITHOUT NOTICE BY SKYNAMO. SKYNAMO, ITS SERVANTS, AGENTS AND SUBCONTRACTORS ARE EXEMPTED FROM ALL LIABILITY FOR ANY LOSS OR DAMAGE (WHETHER DIRECT OR CONSEQUENTIAL) AND/OR FOR ANY COSTS, CLAIMS OR DEMANDS OF ANY NATURE TO THE CUSTOMER AND/OR ANY THIRD PARTY ARISING FROM SUCH SUSPENSION.
17.3 SKYNAMO DOES NOT UNDERTAKE TO REINSTATE THE SERVICES WITHIN A SPECIFIC PERIOD, AND SHALL BE EXEMPTED FROM ANY LIABILITY WHATSOEVER, IF THE NATURE OF THE FAILURE IS CAUSED BY A THIRD-PARTY SUPPLIER’S FAILURE TO DELIVER THEIR SERVICE AND IF THE FAILURE IS DUE TO A REASON OUT OF THE DIRECT CONTROL OF SKYNAMO.
17.4 SHOULD SKYNAMO, NOTWITHSTANDING CLAUSE 14, 15, 16 OR 17 ABOVE, BE FOUND TO BE LIABLE FOR DAMAGES SUFFERED BY THE CUSTOMER OR USERS, SKYNAMO’S ENTIRE LIABILITY FOR DAMAGES (INCLUDING DIRECT, INDIRECT AND CONSEQUENTIAL DAMAGES), FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN DELICT OR IN TORT, SHALL BE LIMITED TO ACTUAL MONETARY DAMAGES NOT EXCEEDING 6 (SIX) MONTH’S SUBSCRIPTION FEE. SUCH SUBSCRIPTION FEE SHALL BE THE SUBSCRIPTION FEE IN EFFECT WHEN THE CAUSE OF ACTION AROSE.
17.5 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT SKYNAMO’S LIABILITY FOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
18. Disclaimer of Warranty
18.1 NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, SKYNAMO DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT THE SOFTWARE OR THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS.
18.2 SKYNAMO WILL PROVIDE THE SOFTWARE AND THE SERVICES WITH REASONABLE CARE AND SKILL. SKYNAMO DOES NOT MAKE ANY OTHER PROMISES OR WARRANTIES ABOUT THE SOFTWARE OR THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SKYNAMO OR AN AUTHORISED REPRESENTATIVE OF SKYNAMO CREATES A WARRANTY AND THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. SKYNAMO AND ITS VARs DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, SUCH AS THE IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON –INFRINGEMENT OF THIRD-PARTY RIGHTS. SKYNAMO DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SOFTWARE OR THAT THE SOFTWARE WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE OR THAT ANY ERRORS OF THE SOFTWARE WILL BE CORRECTED.
18.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR STATUTORY RIGHTS OF A CONSUMER, IN WHICH CASE SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
19. Ownership and Intellectual Property
19.1 The License granted to Customer by Skynamo and/or a VAR, is a limited license to use the Software. Customer acknowledges that all copies, whether partial or complete, of the Software as well as all intellectual property rights in and to the Software (including without limitation, copyright and trade secret rights) are and shall remain the sole property of Skynamo or its third-party suppliers.
19.2 Skynamo retains all ownership rights to all applicable copyrights, trade secrets trademarks, service marks, trade names and other intellectual property rights in the Software.
20. Bribery and Anti-Corruption
20.1 Each Party warrants to the other that it shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption.
20.2 Each Party further warrants that neither such Party nor any affiliated person to such Party have, to the best of such Party’s knowledge, corruptly done any act in furtherance of an offer, payment, promise to pay, or authorisation of the payment of any money, offer, gift, promise to give, or of anything of value directly or indirectly to any government official, political party, party official, or any candidate for political office, for purposes of:
20.2.1 influencing any act or decision of such government official, political party, party official, or candidate in his or its official capacity;
20.2.2 inducing such government official, political Party, Party official, or candidate to do or omit to do any act in violation of his or its lawful duty;
20.2.3 securing any improper advantage;
20.2.4 inducing such government official, political party, party official, or candidate to use his or its influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality; or
20.2.5 assisting the other Party or facilitating any transaction which may be related to this transaction in obtaining or retaining business for or with, or directing business to, the other Party.
20.3 Breach of the aforementioned warranties by a Party shall entitle the other Party to immediately terminate this Agreement.
21.1 In the event of termination of this Agreement, Customer must immediately cease all use of the Software and all licenses granted to Customer will immediately be withdrawn.
21.2 Skynamo will continue to make all Customer Data available for a period of 60 (sixty) days from the date of termination. After 60 (sixty) days, all Customer Data will be permanently deleted.
22. Breach and Termination of License
If the Customer and/or any User fails to comply with any of the provisions of this Agreement, Skynamo shall be entitled to give the Customer 7 (seven) days’ notice in writing to remedy such failure, and if the Customer fails to comply with such notice then Skynamo shall forthwith be entitled, but not obliged, (without prejudice to any other rights or remedies which Skynamo may have in law, including the right to claim damages), to claim immediate performance or to terminate this Agreement and any of the Customer’s Licenses in terms hereof.
23. Legal Cost
Should Skynamo instruct attorneys to take any steps to enforce any rights in terms of this Agreement arising from a breach thereof, then the breaching party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
24. Force Majeure
If either Party ("affected party") is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of an event of Force Majeure, then the affected party shall be relieved of its obligations hereunder during the period that such event continues (and for so long as the affected party is so prevented from fulfilling its obligations, then the corresponding obligations of the other party shall be suspended to the corresponding extent), and the affected party shall not be liable for any delay and/or failure in the performance of its obligations under this Agreement during such period, provided that if the force majeure event continues for a period longer than 14 (fourteen) days, either Party may cancel this Agreement with immediate effect.
25. Notice and Service Address
25.1 Skynamo and the Customer chooses as their notice and service address ("Notice Address") for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement at the following addresses:
25.1.1 Skynamo - the address set out in clause 1.1.25;
25.1.2 Customer – the address set out in the Order Form.
25.2 Any notice given and any payment made by a Party to the other ("the addressee") which:
25.2.1 is delivered by hand during the normal business hours of the addressee at the addressee's Notice Address for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
25.2.2 is transmitted by e-mail to the addressee shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee within 2 (two) hours of transmission.
25.3 Where, in terms of this Agreement any communication is required to be in writing, the term "writing" shall include communications by e-mail.
25.4 Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of electronic mail shall be adequate written notice or communication to such Party.
26. Applicable Law and Jurisdiction
26.1 This Agreement shall be interpreted and governed in all aspects in accordance to the laws of the Republic of South Africa.
26.2 The Parties consent to the jurisdiction of the High Court of the Republic of South Africa in respect of any matter flowing from this Agreement.
27.1 In the event of any dispute or difference of whatsoever nature between the Parties relating to or arising out of this Agreement, the dispute or difference shall on written demand by either Party, be submitted to arbitration in Cape Town in accordance with the rules of the Arbitration Foundation of Southern Africa ("the Foundation") by an arbitrator appointed by the Foundation and agreed to by the Parties.
27.2 Should the Parties fail to agree on an arbitrator within 10 (ten) days after arbitration has been demanded, the arbitrator shall be nominated at the request of any party to the dispute by the Foundation.
27.3 The decision of the arbitrator shall be final and binding on the parties to the arbitration. A decision, which becomes final and binding in terms of this clause 27.3, may be made an order of court at the instance of any party to the arbitration.
27.4 Nothing herein contained shall be deemed to prevent or prohibit any party from applying to court for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the arbitrator.
27.5 The provisions of this clause 27 are severable from the rest of this Agreement and will remain in effect notwithstanding any termination or cancellation of this Agreement.
28.1 If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the Parties as expressed herein.
28.2 Each Party represents and warrants to the other that it is not party to any contract with any other entity or individual that would interfere with or prevent its compliance with the terms and provisions of this Agreement.
28.3 This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.
28.4 This document contains the entire agreement between the parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
28.5 No alteration, cancellation or addition hereto shall be of any force or effect unless reduced to writing and signed by all parties to this Agreement or their duly authorised representatives.
28.6 No failure or delay by any Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege. No indulgence, leniency or extension of time which Skynamo may grant or show to the Customer, shall in any way prejudice Skynamo or preclude Skynamo from exercising any of its rights in the future.