PLEASE NOTE: These product or service specific terms and conditions must always be read together with our General Terms and Conditions, which will always apply to your use of this product or service.
LAN SOFTWARE TERMS
1.1 Unless the context clearly indicates the contrary, any term defined in the General Terms when used herein, shall bear the same meaning as defined in the General Terms.
1.2 Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto-
1.2.1 “Software Purchase” means the sale of Software to Customer by MWEB in accordance with Customer’s selections as indicated by Customer in the Application Form under such heading or description;
1.2.2 “Software” means any licensed software purchased by Customer from MWEB, as selected by the Customer on the Application Form,
1.2.3 “Supplier” means the MWEB supplier, manufacturer or licensed owner of the Software.
2. SALE OF SOFTWARE
MWEB sells the Software to Customer at the price set forth in the Application Form and/or any addendum thereto. Any Software sold by MWEB to Customer shall be deemed to be sold on the terms and conditions set out in the Terms and the Supplier’s terms and conditions and licensing terms, which will be provided to you on request.
3.1 Customer shall pay to MWEB in advance the full amount set out in the Application Form and/or any addendum thereto and/or any job card, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
3.2 Customer acknowledges: (i) that the price for Software is affected by the Rand and Dollar exchange and as such MWEB will be entitled to adjust the price for Software at any time should there be a change in the Rand and Dollar exchange; and (ii) agrees to allow MWEB to debit his/her/its account with the applicable price for Software for that month and/or to invoice him/her/it with the applicable price for Software.
3.3 Customer further acknowledges that the price for Software may be changed by the Supplier at any time and as such MWEB will be entitled to adjust the price for Software at any time should the Supplier increase the price for Software.
4. DELIVERY AND COLLECTION OF SOFTWARE
4.1 Delivery and Installation (If requested)
4.1.1 Should the Agreement include delivery of the Software, MWEB or its agents will deliver the Software to Customer’s premises at Customer’s cost. A signed delivery note by Customer (including his/her/its employee, representative, carrier, agent or nominee) shall constitute prima facie proof that the Software was delivered to and received by Customer in good condition.
4.1.2 Should the Agreement include installation and/or set-up and/or configuration of the Software MWEB and/or its agents shall attend to it during business hours and the relevant Service Fees shall be applicable. Customer shall allow MWEB or its agents, all reasonable access to its premises for the purposes of the installation and/or set-up and/or configuration of the Software. A signed confirmation (job card) by Customer (including his/her/its employee, representative, carrier, agent or nominee) that installation and/or set-up and/or configuration, whichever is/are applicable, of the Software was done shall constitute prima facie proof of that it was done according to specification and agreement. The Customer agrees that the final amount due to MWEB will be reflected on the job card signed by Customer after installation is completed. This amount may vary from the amount set out in the Application Form should the actual on site time be longer than quoted for.
4.1.3 MWEB shall use its reasonable endeavours to comply with the agreed delivery and/or installation and/or set-up and/or configuration date/s, whichever is/are applicable, but Customer shall not be entitled to cancel this Software Purchase or refuse to accept delivery, installation, set-up and/or configuration because of MWEB’s failure to do so on such date/s.
4.1.4 Customer shall not be able to hold MWEB liable under any circumstances, for any loss or damages caused or arising in any manner whatsoever from the delivery and/or installation and/or set-up and/or configuration and/or use of the Software or failure to do so on the agreed date/s.
5. VENDOR’S/MANUFACTURER’S WARRANTIES
5.1 The Software is sold on the condition that the Supplier’s limited warranties, if any applies. MWEB does not warrant workmanship, performance, suitability or compatibility of the Software. The Customer must familiarise him/her/it with the scope and cover of such limited warranty, which includes provisions relating to the does not cover damages caused by a failure to adhere to the Supplier’s instructions and/or use by an unqualified person.
5.2 Customer’s use of the Software is at his own risk and MWEB shall not be liable for any losses or damages of whatever nature because of Customer’s use of the Software.
6. SUPPORT SERVICES
Except if specifically agreed in terms of the Agreement nothing set out in this Software Purchase places any obligation on MWEB with regard to the maintenance and support of the Software and any such services shall only be rendered by MWEB to Customer if indicated in the Application Form and by the payment of the relevant Service Fees.
7. LICENSING AND INTELLECTUAL PROPERTY RIGHTS
7.1 Where applicable, MWEB grants to Customer a non-transferable, personal, non-exclusive sub-license to use any Software and shall use such Software in compliance with the terms and conditions as provided by the Supplier and/or MWEB. Customer shall not copy, translate, modify, adapt, decompile, disassemble or reverse engineer the Software or convert the whole or any part of the Software from object code into source code.
7.2 MWEB will not be responsible for the licensing of any software unless such software forms part of the Software or is specified in the Application Form. In this regard, Customer must ensure that he/she/it received the Software licence key from MWEB at the time of delivery.
7.3 All rights, title and interest in and to all intellectual property relating to any Software owned by the Supplier shall at all times remain the sole property of such Supplier.
7.4 Customer warrants that the use of the Software shall not infringe any intellectual property rights of any third party.
8. TERMS SPECIFIC TO SOFTWARE
8.1 MWEB shall supply and install the Software in accordance with the specifications agreed upon by the Parties. For that purpose Customer agrees to supply MWEB with all the relevant information and co-operation needed to enable MWEB to do the installation.
8.2 The Software is provided by MWEB in accordance with the inherent software license agreement attached to the applicable software and subject to the provisions of clause 8.3 Customer will acquire such rights to the Software, as allowed by such licensor’s licenses.
8.3 The Software is sold to him by MWEB subject to the terms and conditions related to such Software, which are contained in clause 9 below.
8.4 MWEB will in its reasonable discretion, and without being under any obligation to do so, maintain and/or upgrade the Software installed in terms of clause 8.1, which will include any patches, updates, security updates/patches of whatever nature. The Customer herewith authorises MWEB to implement any of the above, as and when it deems fit.
8.5 MWEB will not be responsible for any software and/or applications not applied for in terms of the Application Form, including the licensing thereof.
8.6 Customer agrees that any software and/or applications contemplated in clause 8.5 needed and loaded, if allowed, by Customer will be its own responsibility and is loaded at its sole risk and responsibility. The licensing of all such installed software and/or applications shall be the sole responsibility of Customer. All software shall be licensed in accordance with the vendor’s software license agreements. retains the right to carry out routine checks to validate such software license agreements.
9. Customer will be solely responsible for all the maintenance and/or upgrades of the software and/or applications, which will include any patches, updates and security updates/patches of whatever nature installed in terms of clause 8.6.
MICROSOFT SOFTWARE RENTAL LICENCE
Customer acknowledges that: (i) MWEB is duly appointed to license certain Microsoft software products to Customer in terms of a Microsoft Application Service Provider License Agreement entered into with the Microsoft Corporation; (ii) if Customer has selected any Software to be rented to it by MWEB, the terms and conditions set out below will apply to the rental of such Microsoft software products to Customer. These are the Microsoft Terms and Conditions:
“TERMS AND CONDITIONS
This document concerns your use of Microsoft software, which includes computer software provided to you by MWEB as described below, and may include associated media, printed media, an “online” or electronic documentation (individual and collectively “SOFTWARE PRODUCTS”). MWEB does not own the SOFTWARE PRODUCTS and the use thereof is subject to certain rights and limitations of which MWEB needs to inform you. Your right to use the SOFTWARE PRODUCTS is subject to your Agreement with MWEB, and to your understanding of, compliance with and consent to the following terms and conditions, which MWEB does not have authority to vary, alter or amend.
“Client Software” means software that allows a Device to access or utilise the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” or electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a Server.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
1. OWNERSHIP OF SOFTWARE PRODUCTS.
The SOFTWARE PRODUCTS are licensed to MWEB from an affiliate of the Microsoft Corporation (“Microsoft”). All intellectual property rights in and to the SOFTWARE PRODUCTS (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music text and “applets” incorporated into the SOFTWARE PRODUCTS) are owned by Microsoft or its suppliers. The SOFTWARE PRODUCTS are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not transfer any ownership of the SOFTWARE PRODUCTS or any intellectual property rights to you.
2. USE OF CLIENT SOFTWARE.
You may use the Client Software installed on your Devices by MWEB only in accordance with the instructions, and only in connection with the services, provided to you by MWEB.
3. USE OF REDISTRIBUTION SOFTWARE.
In connection with the services provided to you by MWEB, you may have access to certain “sample”, “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”).
YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY RESTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO MWEB, WHICH TERMS MUST BE PROVIDED TO YOU BY MWEB. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by MWEB.
You may not make copies of the SOFTWARE PRODUCTS, provided however, that you may (a) make one (1) copy of Client Software on your Device as expressly authorised by MWEB; and (b) you make copies of certain Redistribution Software in accordance with Paragraph 3 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with MWEB, upon notice from MWEB or upon transfer of your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the SOFTWARE PRODUCTS.
5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.
6. NO RENTAL.
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the SOFTWARE PRODUCTS to any third party, and you may not permit any third party to have access to and/or use the functionality of the SOFTWARE PRODUCTS.
Without prejudice to any other rights, MWEB may terminate your rights to use the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the SOFTWARE PRODUCTS, and destroy all copies of the SOFTWARE PRODUCTS and all of its component parts.
8. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT.
ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY MWEB AND NOT BY MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.
9. PRODUCT SUPPORT.
Any product support for the SOFTWARE PRODUCTS is provided to you by MWEB and is not provided by Microsoft or its affiliates or subsidiaries.
10. NOT FAULT TOLERANT.
THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
11. EXPORT RESTRICTIONS.
The SOFTWARE PRODUCTS are of U.S origin for purposes of U.S export control laws. You agree to comply with all applicable international and national laws that apply to SOFTWARE PRODUCTS, including the U.S Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S and other governments. For additional information, see http://www.microsoft.com/export/.
12. LIABILITY FOR BREACH.
In addition to any liability Customer have to MWEB, Customer agrees that it will also be legally responsible directly to Microsoft for any breach of these terms and conditions.”
Customer agrees that it is his/her/its responsibility to obtain the latest copy of the Supplier’s terms and conditions and indemnifies MWEB for any claim whatsoever as a result of Customer’s failure to comply with such terms and conditions.