The following is a statement of the current terms of business under which Matrix Software (Pty) Ltd supplies its software products to its customers. In this document, terms “we”, “us” and “our”, as well as Matrix Software all refer to Matrix Software (Pty) Ltd. References in this document to “you” and “your” refers to the person who has accepted our Licence Proposal for proposal for the supply to you of our software products. A binding agreement, consisting of the terms contained in the Licence Proposal as well as the terms contained in this document will come into effect upon your acceptance of our proposal which will govern your use of our Products. Your right to use the software products and associated printed and electronic documentation made available by Matrix Software (Pty) Ltd is subject to the terms and conditions set out in this document, read together with the Licence Proposal (“Agreement“).

1. In this Agreement: 

1.1. “Commencement Date” means the date specified as such in the Licence Proposal, failing which it shall be the date of signature of the Licence Proposal by the Party signing it last in time.

1.2. “Documentation” means the operating, reference, user, and/or training manuals and other documents and materials supplied to you which relates to the Product;

1.3. “Parties” means Matrix Software and you, and “Party” shall refer to either.

1.4. the headings are for convenience only and shall not affect its construction or interpretation;

1.5. “including” and “includes” shall be understood to mean “including without limitation” and “includes without limitation” respectively; and

1.6. words of a technical nature shall be construed in accordance with general trade usage in the computer industry of “South Africa”.

1.7. “Products” means the software applications and modules made available to you under cover of the Licence Proposal.

1.8. “Licence Proposal” means the initial quote/proposal which has been agreed to by you and which identifies the Products licensed to you under cover of these terms.

1.9. “ASP Service” means an application service provider (ASP) is a business providing computer-based services to customers over a network; such as access to a particular software application (such as customer relationship management) using a standard protocol (such as HTTP).

1.10. “Licence Fee” means the fees agreed to be payable under the Licence Proposal as consideration for the use of the Products, on the basis set out in these terms.

1.11. “Licence Code” means a software usage code, license number generated by us that allows access to the Product.

1.12. “Service Partner” means the entity appointed by us to assist you with training / installing the software and providing first and second level support in respect of your use of the Product. This is your primary contact for all queries relating to your use of the Product.

2. Term 

2.1. Subject to termination in accordance with clause 5, this Agreement shall commence on the Commencement Date and shall continue to be of force and effect until terminated by either Party in accordance with clause 2.2.

2.2. Either Party may terminate this Agreement on written notice to the other Party, provided that termination shall not be effective until expiry of a period of 3 (three) calendar months calculated from the end of the calendar month during which notice is given.

3. Our Licence to you 

3.1. In consideration for the payment of the Licence Fee and subject to the terms of this Agreement, we grant to you for the duration of this Agreement a non-exclusive, non-assignable right to use the Product for your own internal business purposes. “Use” of the Product shall mean 3.1.1. to use the Product in accordance with the scope and conditions of usage described in the relevant Documentation.

3.1.2. to enable your personnel to use the Products as it has been implemented for you by us or our Service Partner;

3.1.3. to allow your personnel to use the Documentation in connection with the use of the Product.

3.2. The Product is activated using an internal Licence Code. The Product will alert you of the need for an activation key and this can be obtained from us.

4. Conditions of Use of the Product: 

4.1. Where it is agreed between us in writing that the Products will be implemented on the computer system infrastructure of your agent or service provider, you will be responsible for ensuring that the Products are used only as expressly permitted under this Agreement, and you hereby authorize us and agree to procure for our access to such computer system infrastructure on your behalf so that we may comply with our obligations and/or exercise our rights under this Agreement.

4.2. You are, unless otherwise agreed with us in writing, solely responsible for providing, implementing, installing, and maintaining at your own expense all computer system components and related accessories (including network connections and hardware) specified by us to be necessary for the installation and use of the Product(s). You will at all times ensure that we have access to the computer systems described herein to enable us to exercise our rights and obligations hereunder.

4.3. You are not allowed to use the Product for the benefit of any third party unless otherwise agreed with us in writing.

4.4. In the event that you wish to make use of the Product in a manner that is not currently permitted, you may submit an application therefore to us, provided that we may refuse such request or require the payment of additional Licence Fees to enable such use.

4.5. In particular, you may not, and may not permit any third party to: 4.5.1. copy, transfer, sell, sub-license, lease, mortgage, rent, loan, publish, distribute or otherwise make the Product (or any part of it) available to any other person, whether or not for commercial gain;

4.5.2. use the Product (or any part of it) for the provision of any remote hosting or any online services ASP Service or in any other configuration that permits a third party to use the Product other than under the provisions of a valid license with us;

4.5.3. disable any licensing or control features of the product;

4.5.4. other than to the extent permitted by law, alter, adapt, merge, modify, translate, reverse engineer or decompile, disassemble, create derivative works of the Product (or any part of it), except with our prior written consent; nor

4.5.5. remove, change or obscure any of our or any third party proprietary notices, labels, or marks associated with the Product.

4.6. You acknowledge that ownership of all intellectual property rights (including but not limited to the copyright) in and to the Product (which shall include any backup copies made by you) including all modifications, enhancements, custom developments, updates, and upgrades thereof (“Enhancements”)_will remain our property and that nothing contained herein will be construed as an assignment or transfer of any intellectual property rights to you. To give effect to the aforesaid, you hereby cede, assign and transfer to us all rights, title, and interest which may vest in you in respect of any Enhancements.

5. Licence Fees 

5.1. You may be invoiced for Licence Fees on the basis described under the Licence Proposal. We or our designated Service Partner will issue the invoice for the Licence Fees. All recurring Licence Fees will unless otherwise agreed in writing, be paid by way of debit order on a monthly basis in advance, which debit order will entitle us to debit the Licence Fees from your nominated bank on or after the date of the invoice.

5.2. Failing payment for any reason, we shall be entitled, without prejudice to any other right or remedy we may have, to levy interest on outstanding amounts at a rate up to the maximum interest rate prescribed by law.

5.3. We may increase the Licence Fees on an annual basis. Such increase will be consistent with the increase applied to our other customers.

6. How this Agreement can be terminated 

6.1. We may suspend our performance of any of our obligations to you under this Agreement, or your use of the Product or we may terminate the Agreement without refund forthwith if you commit any of the following:

6.1.1. if you fail to make payment within your account’s payment terms.

6.1.2. if the use of the Product, in our reasonable opinion, is or would be illegal or contrary to applicable law.

6.1.3. if we are notified that any finance arrangement you have made with a third party for the payment of the Licence Fee for the Product was terminated for any reason.

6.1.4. if you fail to comply with any term of this Agreement, or if you become insolvent, enter into compromise arrangements with your creditors, have an administrator, administrative receiver, or other receiver appointed, or go into business rescue.

6.2. In the event that we elect, in our sole discretion, to suspend your use of the Product we shall be authorized to take such steps as may be required to deactivate the Product or to render it unusable/unavailable to you for the duration of the period which you are in default, which steps shall include accessing the systems on which the Product is installed in order to implement such measures.

6.3. Within 15 (fifteen) business days of the termination of this Agreement for any reason you will uninstall the Product and return it to us (including any copies you have made of the Product (or any part of it)) and provide a certificate signed by your duly authorized representative to confirm compliance with this clause. In the event that you fail to uninstall and return the Product to us, you hereby authorize us to take such steps as may be required to procure the removal of the Product from the computer systems on which it has been implemented.

7. Our warranties to you 

7.1. We warrant that the Product, when used in accordance with our operating instructions and training, will provide the functions and facilities and will perform substantially as described in the Documentation.

7.2. We will provide emergency assistance should the Products fail in total.

7.2.1. We provide no warranties with respect to any alterations/modifications / new features we develop at your request (“Custom Developments”). It will be your responsibility to ensure that Custom Developments operate in the intended way.

7.3. The warranties set out in this clause 7 are in lieu of all other warranties, representations, or conditions, express or implied, statutory or otherwise, including any implied warranties of satisfactory quality and fitness for a particular purpose. We do not warrant that the Product will meet your requirements, or that the operation of it will be uninterrupted or error-free. We do not warrant or make any representation regarding the use of the Product or the results of such use in terms of correctness, accuracy, reliability, or otherwise. No oral or written communications by or on our behalf shall create a warranty or in any way increase the scope of the warranties we have given.

7.4. Our entire liability and your exclusive remedy under the warranties given in this clause 7 will be, at our option either be to:

7.4.1. repair or replace the Product or any component thereof which does not conform with the warranty; or

7.4.2. terminate this Agreement, refund all amounts paid for the Products from the point where the issue of complete Product malfunction was established by Matrix Software.

8. Disclaimer and limitation of liability 

8.1. You acknowledge that the allocation of risk in this Agreement reflects the price paid for the Product and also the fact that it is not within our control of how, and for what purposes, you use the Product. In no event, therefore, will we be liable for any indirect, consequential, incidental, or special damage, or loss of any kind (including loss of profits, business, chargeable time, anticipated savings, goodwill, any business interruption or loss of or corruption of data) however caused and whether arising under contract, tort, including negligence, statutory or otherwise.

8.2. Subject to clause 8.1 and to the maximum extent permitted by applicable law, our total aggregate liability in respect of any and all claims, actions, damages, costs, losses, expenses and other liabilities arising during any contract year (being a 12 month period commencing on the Commencement Date or an anniversary of the Commencement Date) will be limited to the amount of Licence Fees received by us in respect of such contract year in relation to the Licence Proposal, regardless of whether such liability is based on contract, statute, delict or otherwise.

8.3. We do not accept any responsibility whatsoever for damage caused by the action of viruses, virus signatures, or malicious code. This includes damage from loss of files, system malfunctions, data corruptions, or the like, which may be caused by any code, malicious or otherwise. You are accordingly solely responsible for implementing sufficient virus protection mechanisms on your systems in order to prevent such damages from occurring.

9. Intellectual Property Rights 

9.1. The Product and the Documentation are and shall remain our property, including all intellectual property rights and know-how represented by or incorporated therein. You acknowledge that you will obtain no right, title, or interest thereto other than as expressly granted under this Agreement.

9.2. You acknowledge that, to the extent that we make available any of our know-how to you, same shall remain our property and that you will acquire no right or interest in such know-how for any purpose other than to enable your use of the Product.

10. Data Protection 

10.1. We will comply with our obligations under the Protection of Personal Information Act No. 4 of 2013 (“POPIA”) to the extent that we Process Personal Information received from you (“Data”). “Process” and “Personal Information” will for such purposes have the meanings prescribed to them under POPIA.

10.2. We will treat your Data as to your confidential information and will use the same only to the extent required to comply with our obligations to you under this Agreement. You acknowledge that we make use of third-party service providers to enable us to comply with our obligations to you and that we may accordingly permit such service providers to Process your Data on our behalf. You furthermore acknowledge that some of these service providers are located outside of South Africa, and accordingly that our use of their services may involve the transfer of Data for Processing outside of South Africa.

10.3. It is your responsibility to ensure that you have obtained all authorizations and consents as may be required to enable us to process your Data in accordance with this Agreement, and you accordingly hereby agree to indemnify us against any fines, claims, costs, and damages which relate or are based on that the Processing of your Data in accordance with this Agreement is contrary to law or infringing of any third party right.

10.4. It remains your responsibility to ensure that Data is accurate, complete, and relevant. In the event that any Data is or becomes inaccurate, irrelevant, excessive, out of date, incomplete, misleading or has been unlawfully obtained you must take steps to rectify the problem and/or to restrict processing thereof in accordance with the requirements of POPIA. We will provide reasonable assistance to you in this regard if necessary. You hereby indemnify us from any claim, cost, fine, and damages that we incur based on your failure to lawfully Process any Data.

10.5. You undertake to back up all data and information on your computer systems and infrastructure (including Data) and to keep such safe from theft, loss and/or destruction. You further undertake to implement the measures required to maintain and ensure the integrity of such data and to keep same safe from natural disasters as well as systems or equipment failure. We take no responsibility for any loss of such data or information, to the maximum extent permitted under applicable law.

11. General 

11.1. Any reseller, distributor or dealer (including any of our authorized resellers or distributors) who has facilitated the conclusion of this Agreement is not appointed or authorized to bind us in any manner, and cannot be construed as our agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee with or to you on our behalf, or otherwise to bind us in any way whatsoever. We will not be responsible for any actions or undertakings given by such persons.

11.2. We shall not be liable to you in respect of any circumstances arising outside our reasonable control.

11.3. Our failure to enforce any particular term of this Agreement shall not be construed as a waiver of any of our rights under it.

11.4. If any part of this Agreement is held by a court of competent jurisdiction to be unreasonable for any reason whatsoever, the validity of the remainder of the terms will not be affected.

11.5. This Agreement constitutes the entire agreement between you and us in relation to the Product and supersedes any other oral or written communications or representations with respect to the Product. In the event of any conflict between any of the terms contained in the Licence Proposal and the terms and conditions contained in this document, these terms will prevail to the extent of such conflict.

11.6. No variations of any of these terms and conditions are valid if not confirmed in writing by us or our authorized representative.

11.7. No variations of any of these terms and conditions are valid if not confirmed in writing by us or our authorized representative.

11.8. This Agreement shall be governed by and construed in accordance with “South African” law.

11.9. Neither of the Parties shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the other, which consent shall not unreasonably be withheld or delayed. Notwithstanding the aforesaid, we may cede, assign, delegate and transfer all or some of our rights and obligations under this Agreement to any successor with respect to our business or assets and you hereby agree to such cession, assignment, delegation and transfer.

12. Confidentiality and Non-disclosure

12.1. Each Party (“Receiving Party“) must treat and hold as confidential all Confidential Information which it may receive from the other party (“Disclosing Party“) or which becomes known to it during the term of this Agreement. “Confidential Information” for purposes of this Agreement means all information which has been designated as confidential by the Disclosing Party, or which is clearly of a confidential nature, which for Matrix Software shall include the terms of this Agreement and the Licence Proposal, the Documentation and the Product features including without limitation the structure, sequence and organisation of the software and data files, user interfaces and screen designs, communications protocols, business processes and business rules, product architecture, data file definitions, structures, utilities and routines and the logic, coherence and methods of operation of systems.

12.2. Each Party (as a Receiving Party) shall prevent the unauthorized use or disclosure of Confidential Information, except as may be required by law.

12.3. Upon termination of this Agreement, for whatever reason, the parties shall return or at the discretion of the other Party, destroy the Confidential Information of such Party, and shall not retain any copies, samples or excerpts thereof save as required by applicable law.

12.4. It is recorded that the following information will, for the purpose of this Agreement, not be considered to be Confidential Information:

12.4.1. information known to either of the Parties prior to the date that it was received from the other Party; or

12.4.2. information known to the public or generally available to the public prior to the date that it was disclosed by either of the Parties to the other; or

12.4.3. information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the recipient of such Information; or

12.4.4. information which either of the Parties, in writing, authorises the other to disclose.

13. Restraint of trade

13.1. Neither of the Parties shall, at any stage after the commencement of this Agreement, and for a period of two (2) years after this Agreement has terminated, make any offers of employment to any staff member, who is or has been employed by the other and has been involved in the execution of this Agreement. The aforementioned restraint shall not be applicable in the event where the prior written approval to make such an offer has been obtained from the Party who is or has been the employer of such staff member. For the purpose of this clause “staff member” shall include but not be limited to permanent employees, part-time employees and independent contractors.

14. Product Support Services 

14.1. Provided that you are not in arrears with respect to payment of Licence Fees, we will provide you with remote (off-site) third line support to resolve errors experienced in the use of Products (“Errors”). We may provide support for any problem that is not an Error but may charge additional support fees for such support. We may also charge service fees for time spent and expenses incurred in order to verify that a problem reported to us is not an Error.

14.2. You will be responsible for the maintenance of the computer systems and on which you have implemented the Products and for providing first and second line support in respect of the use of the Products by your personnel, including the identification of problems with such use, the resolution of all such problems that are not Errors and the logging of all Errors with us or the designated Service Partner in terms of this clause. Your first and second line support responsibilities include, without limitation, providing assistance in respect of the following:

14.2.1. interoperation problems with other software;

14.2.2. computer system / IT infrastructure problems;

14.2.3. communications problems;

14.2.4. synchronization problems;

14.2.5. networking problems; and

14.2.6. lost or corrupted databases.

14.3. We will provide third line support services in respect of all Errors logged with us. Such third line support will be limited to assisting with the resolution of Errors, including by way of workarounds and coding fixes where reasonably possible.

14.4. All problems must be logged as follows:

14.4.1. Unless otherwise agreed with us in writing, all problems must be reported to the Service Partner first. All unresolved problems must be reported to us by the Service Partner (or by you if so agreed with us in writing), either by telephone or electronic mail. We will provide support during our normal business hours only. All after hours support must be pre-arranged with us and will be chargeable at our prevailing after service fee rates for after-hours support. Our business hours are from 08h00 to 17h00 (GMT+2 hours) Monday to Friday (except on South African public holidays).

14.4.2. At the time of first reporting the problem, you must provide the complete chronological history of the problem from the moment it was first reported, as well as the steps taken and results obtained from first and second line support efforts and you must ensure that the appropriate personnel members are available to assist us in resolving the problem.

14.5. You must ensure that we and our authorised representatives are given controlled remote and direct network access to the your computer systems and infrastructure to resolve problems.

14.6. We may stipulate a maximum support time limit for the provision of support services. We will not be obliged to provide any support in excess of such entitlement. If we provide additional support, we may elect to charge for such support at our prevailing service fee rates.