NIKITA PROPERTY MANAGEMENT FOR WIN32
Unless the contraryis clearly shown-
1.1. technical terms which are not defined in these Terms and Conditions shall have the common meaning ascribed to them by the information Technology industry in the Republic of South Africa; and
1.2. the following words and/or phrases used in these Terms and Conditions shall have the following meaning:
1.2.1. “Business Days” shall have the meaning ascribed to it in the CPA;
1.2.2. “CPA” means the Consumer Protection Act No 68 of 2008;
1.2.3. “Copyright” means all rights of Copyright whether existing now or in the future in and to the Softwareincluding initial drawings sketches, flow charts and designs relating thereto;
1.2.4. Commencement Date” means the date of acceptance by the Customer of these Terms and Conditions by clicking “Accept” at the end of this document;
1.2.5. “Intellectual Property Rights” means all present and future rights in the Software and other rights which may in the future be based thereon, including but not limited to Copyright;
1.2.6. “License” means the Customer’s right to Use the Software which cannot be transferred to any other person and which is not an exclusive right;
1.2.7. “License Fee” means the once-off fee charged by the Supplier to the Customer for the License as set out in the Price Schedule and determined by the number of Units, plus VAT;
1.2.8. “License Period” means 12 months from the Commencement Date;
1.2.9. “Notice” means a written document and shall, for the purposes of the Supplier furnishing a Notice to the Customer, be deemed to include any pop-up alert notification built into the Software by the Supplier;
1.2.10. “Price Schedule” means the list of prices per Unit charged by the Supplier for the License (as amended by the Supplier from time to time); [Click here to see Price Current Price Schedule]
1.2.11. “Parties” means both the Supplier and the Customer;
1.2.12. “Software” means the property management computer application known as Nikita Property Management for Win32;
1.2.13. “these Terms and Conditions” means the terms and conditions contained in this document, as amended and updated from time to time in terms of clause 8.3;
1.2.14. “Units” means the number of properties which are managed by the Customer by using the Software as selected by the Customer from time to time;
1.2.15. “Use” means that the Customer is entitled to manage the Units by operating the Software ; and
1.2.16. “VAT’ means Value Added Tax in terms of the Value Added Tax Act No. 89 of 1991.
2.1. The Licensegranted to the Customer allows the Customer to use the Software for the License Period. After the License Period, the Customer may only continue to Use the Software if the Customer pays a new License fee and again accepts these Terms and Conditions and accordingly the License will then be extended by a further License Period.
2.2. The Customer is responsible for providing, configurating and maintaining all equipment on their premises, including but not limited to computer hardware equipment, computer software and telecommunication equipment, which is or may be necessary for the Customer to Use the Software;
2.3. The Customer shall be liable for all third party costs, including but not limited to all communication costs and other charges which are or may be necessary for the Customer to Use the Software.
2.4. The Customer acknowledges that the number of Units forming part of the License has been selected by the Customer. The Customer can at any stage during the License Period, increase the number of Units, which extra Units will form part of these Terms and Conditions and the License Fee due by the Customer to the Supplier will accordingly increase in accordance with the Price Schedule, but the Customer must provide a Notice to the Supplier of those changes.
2.5. The Customer shall not have the right and license to use the License in respect of such additional number of Units as contemplated in clause 2.4 until such time as the extension of the License has been granted by the Supplier to the Customer. The extension of the License shall be deemed to have been granted by the Supplier upon payment by the Customer of the additional License fee in respect of such additional number of Units.
2.6. The Customer cannot sub-license, sell, market or transfer the Software in any way, either in whole or in part, to any third party.
2.7. The Customer cannot copy nor allow any other person to copy the Software.
2.8. The Customer cannot modify, de-compile, disassemble or otherwise reverse-engineer the Software, or attempt to do any of these or allow any other person to do so.
2.10. The Customer shall utilise the Software for internal business purposes only and may accordingly, load, transfer, run and install the Software strictly within its own internal data processing facilities.
3.1. In consideration of the License, being granted, the Customer must pay the Supplier the License Fee.
3.2. The Customer will not have access to the Software and cannot Use the Software unless the License Fee has been fully paid.
4.1. In addition to the License Fee the Customer must pay the Supplier all taxes, levies and duties, including VAT (if any) lawfully levied by any governmental authority in the Republic of South Africa and for which the Supplier is required or permitted, by law, to collect from the Supplier relating to the License.
5.1. The Supplier makes no warranty or representation, either express or implied, with respect to the Software, including its quality, performance, merchantability, or fitness for a particular purpose.
5.2. IN NO EVENT WILL THE SUPPLIER BE LIABLE TO THE CUSTOMER FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, THE SUPPLIER IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE ARISING FROM OR INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, THE COST OF RECOVERING SUCH SOFTWARE OR DATA, THE COST OF SUBSTITUTING SOFTWARE, OR CLAIMS BY THIRD PARTIES.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. The Customer accepts that any and all of the intellectual property rights used or embodied in or in connection with the Software are and will remain the sole property of the Supplier.
6.2. The Customer will not question or dispute the ownership of such rights at any time during the License Period or thereafter.
7.1. If either Party breaches any material provision or term of these Terms and Conditions and fails to remedy such breach within 7 (seven) days after the receipt of a Notice from the other party or if the Customer defaults in the punctual payment of any payment or any other amount falling due in terms of these Terms and Conditions, then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or under these Terms and Conditions, including obtaining an interdict-
7.1.1. to cancel these Terms and Conditions; or
7.1.3. if the Supplier is the aggrieved party, to retain the License Fee and any other amounts paid by the Supplier to the Customer either as rouwkoop or by way of a penalty or as liquidated damages, in any event without prejudice to the aggrieved party’s right to claim damages.
8.1. These Terms and Conditions shall be governed by and construed and interpreted in all Respects in accordance with the laws of the Republic of South Africa, regardless of the jurisdiction in which the Customer is domiciled.
8.2. These Terms and Conditions constitute the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of these Terms and Conditions, and the parties will not be entitled to rely, in any dispute regarding these Terms and Conditions, on any terms, conditions or representations not expressly contained in these Terms and Conditions.
8.4. Neither party to these Terms and Conditions has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in these Terms and Conditions.
8.5. In the event that any of the terms of these Terms and Conditions are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
9. DOMICILIUM CITANDI ET EXECUTANDI
9.1. Any Notice or communication required or permitted to be given in terms of these Terms and Conditions shall be valid and effective only if in writing but it shall be competent to give Notice by e-mail.
9.2. Either party may by Notice to the other party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in the Republic of South Africa or its e-mail address, provided that the change shall become effective on the 7th (seventh) business day from the deemed receipt of the Notice by the other party.
9.3. Any Notice to a party:
9.3.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th (seventh) business day after posting (unless the contrary is proved);
9.3.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
9.3.3. sent by e-mail to the other party’s mailbox shall be acknowledged immediately on receipt, and shall be deemed received when so acknowledged.
9.4. Notwithstanding anything to the contrary herein contained a written Notice or communication actually received by a party shall be an adequate written Notice or communication to it notwithstanding that it was not sent to or delivered at its domicilium citandi et executandi.
Notwithstanding anything to the contrary contained in these Terms and Conditions, in the event that the Customer is a Consumer as defined in section 1 of the CPA then-
10.1. the following provisions shall apply-
10.1.1. the Supplier shall deliver a Notice to the Customer by way of a pop-up alert notification built into the Software by the Supplier not more than 80 (eighty) Business Days nor less than 40 (forty) Business Days before the expiry date of the relevant License Period, that the License Period is due to expire, which Notice shall prompt the Consumer to either renew or terminate the License;
10.1.2. the Customer shall accordingly ensure that their respective personnel who are permitted by the Customer to use the Software have the necessary authority to renew or terminate the License as aforesaid; and
10.1.3. if the Customer agrees to renew the License, the Customer shall be obliged to verify their identity, login onto the Supplier’s Website and complete the renewal procedure which includes, inter alia, acceptance of these Terms and Conditions and payment of the renewal License Fee; or
10.1.4. if the Customer does not renew the License as contemplated in clause 10.1.3 the License shall continue until the end of the current License Period and thereafter the Customer shall not be granted further access to the Software; and
10.2. clause 5.1 shall not apply and shall be substituted for the following provision-
10.2.1. THE LIABILITY OF THE SUPPLIER FOR THE MALFUNCTIONING OF AND ANY MATERIAL DEFECT IN THE SOFTWARE WILL BE LIMITED TO THE SUPPLIER RECTIFYING THE MALFUNCTION OR MATERIAL DEFECT, WITHIN A REASONABLE TIME AND FREE OF CHARGE, PROVIDED THAT THE SUPPLIER IS NOTIFIED OF SUCH MALFUNCTION OR MATERIAL DEFECT BY WAY OF A NOTICE, IMMEDIATELY FOLLOWING SUCH MALFUNCTION OR MATERIAL DEFECT COMING TO THE
ATTENTION OF THE CUSTOMER.
10.2.2. IN THE EVENT THAT THE SUPPLIER IS UNABLE TO CORRECT THE MALFUNCTION OR MATERIAL DEFECT WITHIN A REASONABLE PERIOD OF TIME, THE CUSTOMER SHALL BE ENTITLED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 10.4, TO PLACE THE SUPPLIER IN BREACH OF THE PROVISIONS HEREOF.
10.2.3. THE LIABILITY OF THE SUPPLIER AS CONTEMPLATED IN CLAUSE 10.2.1 IS COMPLETELY EXCLUDED IF THE CUSTOMER ATTEMPTS TO CORRECT OR ALLOWS THIRD PARTIES TO CORRECT OR ATTEMPT TO CORRECT THE SOFTWARE WITHOUT THE PRIOR WRITTEN APPROVAL OF THE SUPPLIER;
10.3. clause 5.2 shall not apply in respect of the gross negligence of the Supplier in relation to the Software;
If either Party breaches any provision or term of these Terms and Conditions and fails to remedy such breach within 20 Business Days after the receipt of a Notice from the other party including, but not limited to, a default by the Customer in the punctual payment of any payment or any other amount falling due in terms of these Terms and Conditions, then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at law or under these Terms and Conditions, including obtaining an interdict-
10.4.1. to cancel these Terms and Conditions; or
10.4.2. to claim specific performance of these Terms and Conditions; and
10.4.3. if the Supplier is the aggrieved party, to retain the License Fee or a portion thereof and any other amounts paid by the Supplier to the Customer (subject to the provisions of section 14 of the CPA) either as rouwkoop or by way of a penalty or as liquidated damages, in any event without prejudice to the aggrieved party’s right to claim damages;
10.5. clause 8.3 shall not apply and shall be substituted for the following provision-
No variation of or addition to these Terms and Conditions will be of any force or effect unless reduced to writing and accepted in writing by the Supplier and the Customer; and
10.6. clause 8.4 shall not apply.