Software Sub-licence Agreement
Entered into between Jarrison Systems CC and its Authorised Distributors (the “Licencee”)
Agreement Covering Documentation
Jarrison Systems CC
(Reg. No. 2003/085771/23)
P O Box 349
Fax: +27-86-682 3326
TO THE DISTRIBUTOR
PLEASE READ THIS DOCUMENT THOROUGHLY BEFORE REGISTERING AS A DITRIBUTOR. IT CONTAINS IMPORTANT INFORMATION THAT MAY AFFECT YOUR RIGHTS AS A CONSUMER.
WHEN REGISTERING AS A DISTRIBUTOR, BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DO NOT ACCEPT” BUTTON AND THE REGISTRATION PROCESS WILL AUTOMATICALLY TERMINATE.
Start Date: This agreement will become effective on the date of the acceptance of these terms and conditions (“the Start Date”)
Territory: Throughout the Republic of South Africa (unless otherwise agreed to in writing between the parties to this agreement).
Distributor: In this agreement the Distributor is a Non-Exclusive Distributor for the Territory, pursuant to the terms and conditions of this agreement.
By executing this Agreement, Jarrison Systems CC. (“Jarrison Systems”) and the Authorised Distributor (“Authorised Distributor”) agree to enter into an agreement which will supersede and replace the agreement(s) between them listed below (if any) (collectively, “Prior Agreement[s]”), and replace it/them with this agreement consisting of this Agreement and the Attachment(s) specified in Section 2 below (“Attachments”).
The documents listed below are incorporated into this Agreement by reference (Please click on the links below to view these documents):
Exhibit A - Products and Pricing (“Sub-licensable Products) (“Products and Pricing”)
Exhibit B - Software Licence Terms and Conditions (Rev. 03/2010) (“Standard Terms”)
3. EXCEPTION TO STANDARD TERMS (FOR SUBLICENSABLE SOFTWARE)
3.1 GRANT OF SUB-LICENCE
3.1.1 Sub-licence. Jarrison Systems grants to the Authorised Distributor a right to sub-licence the Sub-licensable Products identified in Exhibit A in the Territory on a fixed term basis on the terms and conditions contained herein.
3.1.2 Nature of the Rights Conferred. The sub-licence granted herein includes the right to:
(i) Market, advertise, distribute and commercially exploit the Sub-licensable Products within the Territory; and
(ii) Distribute, install and configure the Sub-licensable Products at the customer’s site in accordance with the Standard Terms and Conditions attached to this agreement (“Exhibit B”).
3.1.3 The Authorised Distributor will be entitled to a 30% (thirty percent) discount on the current retail price of the licence for the Software, provided that the said Authorised Distributor complies with the terms and Conditions of this Agreement (inclusive of the Standard Terms and Conditions together with any other counterpart documentation that may be annexed to this Agreement prior to the parties signing).
3.2 CONDITIONS OF LICENCE.
3.2.1 The Authorised Distributor agrees to enforce the provisions of the End User Licence Agreements to the same extent that Authorised Distributor enforces such provisions to protect its own proprietary products, but in no case less than in accordance with accepted computer software industry standards.
3.2.2 Upon Jarrison Systems’ request, the Authorised Distributor shall provide Jarrison Systems with a list of nominated End-User’s to whom the Authorised Distributor has licensed any and all software products owned by Jarrison Time.
3.2.3 The End User may use the Sub-licensable Products in object code form only and such sub-licence is granted only for the End User’s own internal purposes. The End User may have the right to duplicate the Sub-licensable Products for backup or archival purposes only and any such copy must contain all of the proprietary notices contained on the original.
- The End User shall not rent the Sub-licensable Products or make them available on a service-bureau or timesharing basis. The End User may not transfer its rights under the Sub-licence without the permission of Jarrison Systems.
- Title shall not pass to the End User. Title, ownership rights, and intellectual property rights in and to the Sub-licensable Products and Documentation shall remain in Jarrison Systems.
- The Authorised Distributor shall not make any warranties, express or implied, on behalf of Jarrison Systems.
- Jarrison Systems shall not be liable for any damages, whether direct, indirect, incidental or consequential arising from the use and/or misuse of the Sub-licensable Products.
- At the termination of the Sub-licence, the Sub- End User shall be required to discontinue use of, and shall destroy or return to Jarrison Systems, the Sub-licensable Products, Documentation and all archival or other copies of the Sub-licensable Products that may be in its possession at the time of termination.
- The End-User shall not transfer the Sub-licensable Products outside of the Territory, unless agreed to in writing by Jarrison Systems.
- The End-User shall agree to comply fully with all relevant regulations and laws of the Republic of South Africa including applicable laws pertaining to the export of the sub-licensable Products to ensure that the Sub-licensable Products are not exported in violation of such laws and/or regulations.
3.2.11 The licence term for Sub-licensable Products is three hundred and sixty five (365) days from the date of installation by the Authorised Distributor. Once the Sub-licensable Products have been installed by the Authorised Distributor, Jarrison Systems’ right to terminate the licence for the Sub-licensable Products (the Software products licenced for resale) shall be limited to the termination provisions contained in the executed End User Licence Agreement.
3.2.12 Sales Quotas: The Authorised Distributor shall maintain its right to distribute the Sub-licensable Product in the territory provided that the distributor sells at least 1 (one) new product licence during any given 12 (twelve) month period.
3.2.13 Nonpayment: Jarrison Systems reserves the right to deny licences to the Authorised Distributor if any payment is due. This may include but not limited to Hardware, Software, services provided by Jarrison Systems. PLEASE NOTE: Jarrison Systems requires proof of payment 5 (five) working days before the current licence expiry date in order to issue a new licence.
3.2.14 Jarrison Systems reserves the right to make contact with the end user periodically to establish whether or not adequate support is being offered by the Authorised Distributor in order for the customer to continue to make use of the software effectively.
3.2.15 Should it be determined that the support provided by the Authorised Distributor to any given customer is inadequate, the Authorised Distributor will be advised via email of its alleged failure to provide adequate support and (where possible) will be afforded 3 (Three) working days within which to provide the required support to the customer.
3.2.16 Failure by the Authorised Distributor to provide the requisite levels of support to the customer, after having been given fair opportunity to do so, will entitle Jarrison Systems, at its election, to either support the customer directly or, alternatively, to offer to provide support to the customer via another Authorised Distributor.
3.2.17 Notwithstanding the above, should it be determined that the Authorised Distributer is unable to meet the required levels of customer support (as a result of gross incompetence or due to any other cause as determined by Jarrison Systems at its sole discretion) Jarrison Systems reserves the right to immediately enact the provisions of clause 3.2.9 above without necessarily affording the Distributor with an opportunity to provide the required support.
3.2.18 Jarrison Systems may contact any customer who chooses not to renew their licence for purposes of marketing and/or research.
3.3.1 This Agreement will commence upon the date of registration with Jarrison Systems (the “Start date”) and, unless earlier terminated or extended in terms of this Agreement, will persist for a period of 12 months (the “initial period”).
3.3.2 This Agreement will automatically extend for successive 12 month periods following the initial 12 month period (“subsequent periods”) unless (i) the provisions of clause 3.4 below have been evoked, or (ii) the provisions of clause 3.2.12 above have not been met or (iii) either party notifies the other party, in writing not less than 60 days prior to the end of any subsequent period, that this Agreement shall not be so extended.
3.4 TERMINATION DUE TO BREACH.
Either party may terminate this Agreement upon 30 days’ written notice if the other party breaches its obligations under the Agreement and fails to cure the breach to the reasonable satisfaction of the other party by the end of the notice period. Alternatively, if the default cannot be reasonably cured within 30 days, the breaching party must have commenced remedial steps to cure the default, provided that no such cure period shall apply if the Authorised Distributor breaches its payment obligations more than two times within a 12 month period, in which case Jarrison Systems may terminate the Agreement immediately upon written notice to the Authorised Distributor. Upon termination, all amounts owed by the Authorised Distributor under this Agreement will become immediately due and payable.
Any dispute or difference arising between the parties to this agreement (“the Disputants”) relating to or arising out of this Agreement including the validity, implementation, execution, interpretation, rectification termination or cancellation of this agreement, shall be submitted to Arbitration in Johannesburg in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”). The parties undertake not to withhold their consent to join another party to the arbitration. Should the disputants fail to agree in writing to an arbitrator within ten (10) days after arbitration has been demanded, the arbitrator shall be nominated at the request of the Disputant by AFSA. Any Disputant may appeal the decision of the arbitrator or arbitrators in terms of the rules of AFSA.
Nothing herein contained shall be deemed to prevent or prohibit a disputant from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim. The arbitration shall be conducted in camera and the parties shall treat as confidential and not disclose to any third party details of the dispute submitted to arbitration, the conduct of the arbitration, without the written consent of the other Disputant/s.
4. NOTICES AND GENERAL PROVISIONS
4.1 The choice of law for disputes between Jarrison Systems and the Authorised Distributor regarding all software licenced hereunder shall be the laws of the Republic of South Africa, as more fully set forth in clause 10.4 of the Standard Terms annexed hereto.
4.2 All notice requirements pertaining to Jarrison Systems’ Products licenced to Authorised Distributor under this Agreement shall be sent to Jarrison Systems’ chosen Domicilium Address as identified in Exhibit B of this Agreement marked for the attention of the Managing Director.
4.3 All notice requirements pertaining to the Authorised Distributor under this agreement shall be sent to the Authorised Distributor via email and/or to the physical address provide by the Authorised Distributor upon registration which address shall constitute the Authorised Distributor’s chosen Domicilium Address. Additionally the Authorised Distributor hereby consents to service of all legal documents via email using the email address provided to Jarrison Systems during the registration process.
4.4 Customer Registration by Distributor: The Authorised Distributor may inform Jarrison Systems, in the form of an email, as to potential customers that they have quoted so as to ensure that Jarrison Systems does not deal directly with those potential customers. This ‘Customer Registration’ will remain valid for a period of 3 (three) months from that date of the distributor having informed Jarrison systems of the quoted customer’s details (the “Registration Period”). Customer Registration by the Distributor does not prevent Jarrison Systems from assisting the customer with product knowledge and support during the Registration Period or prevent Jarrison Systems from providing licensing services to the customer in the future.
Distributors may not register customers that:
4.4.1 they have not quoted;
4.4.2 they cannot, in the opinion of Jarrison Systems, reasonably supply and maintain;
4.4.3 are not within the territory;
4.4.4 are already using Jarrison Time.
4.5 Indemnity: The Authorised Distributor hereby holds Jarrison Systems harmless against all loss, damage, costs and or expenses which the Authorised Distributor may suffer or incur while carrying out the Services in terms of this Agreement and indemnifies Jarrison Systems against any and all claims which may be brought against Jarrison Systems by any third party in respect of any loss, liability, damage, costs and or expenses of any nature whatsoever as a consequence of, or which may arise from, or is attributable to any acts (or omissions) on the part of the Authorised Distributor or its employees.
4.6 Non-solicitation: The Authorised Distributor agrees that it shall not, for a period of FIVE YEARS (“the Restraint Period”) after expiration or termination of this agreement for any reason whatsoever, solicit, aid or induce (whether on its own account or for any other person, firm or company) any employee or consultant of Jarrison Systems to leave their employment with Jarrison Systems.
5. MEDIA RELEASES
All media releases, public announcements and public disclosures by the Authorised Distributor and/or the, Licencee or their respective employees or agents relating to this Agreement or its subject matter, including, without limitation, promotional or marketing material, will not be published unless approved by Jarrison Systems (the “Licensor”) prior to the release thereof. The aforegoing will not apply to any announcement intended solely for internal distribution at the Authorised Distributor’s or the Licencee’s premises or to any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the Authorised distributor or the Licensee.
- The Authorised Distributor undertakes to ensure that its staff members:
6.1.1 Are trained by, and to the satisfaction of, Jarrison Systems, or its designated training partner, prior to being allowed to assist on, or to work with, Jarrison Systems’ products and/or services (including all Software and Hardware required for the installation of any of Jarrison Systems’ products).
- Shall not be engaged in the installation of any of Jarrison Systems’ products or be engaged to assist with any of Jarrison systems’ services, unless the staff member(s) concerned have received the required training from Jarrison Systems or its designated training partner;
- Attend all training courses, as required by Jarrison Systems, at Jarrison Systems head office, or such other venue as nominated by Jarrison Systems Franchisor. The costs of such training, which includes (but is not limited to): training fees, travel and accommodation, shall be borne by the Authorised Distributor;
- Attend any further training as may be required by Jarrison Systems from time to time.
- The Authorised Distributor expressly acknowledges that:
6.2.1 The training as required by Jarrison systems is essential, in the enhancement of the know-how, business system and performance criteria relevant to Jarrison Systems’ products and/or services;
6.2.2 Any of the Authorised Distributor’s new staff members who have not previously been trained in respect of Jarrison Systems’ products and services, shall be trained before such staff members are authorised to provide assistance to a customer in respect of any of Jarrison Systems’ products and/or services.
6.2.3 Notwithstanding any of the provisions of this paragraph 6, the Authorised Distributor understands that it has an obligation to familiarise itself with the Sub-licensable Products as Identified in Annexure A, including any manuals or other instruction material relating thereto and the Licensor reserves the right to charge the Authorised Distributor for the provision of support in circumstances where such support is deemed to be unwarranted. Examples of such circumstances include, but are not limited to, support queries directed to the Licensor, which have previously been answered by the licensor or queries that are dealt with in the current product manual.
7.1 The Authorised Distributor undertakes that for the duration of this Agreement and after the expiration or early termination of this Agreement for any reason, it will keep confidential any trade secrets and/or all information that Jarrison Systems may have communicated to it, or any of its employees, or which comes to the knowledge of the Authorised Distributor as a consequence of the Services to be performed by the Authorised Distributor in terms of this Agreement and which is stated to be, or by its nature is intended to be, kept confidential.
7.2 For purposes of this agreement the expression “trade secrets and confidential information” shall include (but not be limited to) the technical detail, program content, techniques, know-how, methods of operating, costs, training courses and the names of clients and/or potential clients of Jarrison Systems, which the Authorised Distributor may become privy to as a result performing the Services as set out in this Agreement.
8. AMENDMENTS TO THESE TERMS AND CONDITIONS
Jarrison Systems reserves the right to change these terms and conditions at any time without prior notice. In the event that any changes are made, the revised terms and conditions shall be forwarded to the Authorised Distributor via the email address provided at the time of registration.