The Code Company Trading (Pty.) Ltd. (Registration number: (2007/022628/07) A Subsidiary of The Code Company Holdings (Pty) Limited
A company duly incorporated under the laws of South Africa having its main place of business at:
252 Barry Hertzog Avenue, Greenside, Johannesburg, 2193;
(010) 591 1174 (Tel), (086) 513 5551 (Fax).
(hereinafter referred to as “THE CODE COMPANY”)
The Client of The Code Company Advocate Billing software;
(hereinafter referred to “LICENSEE”).
Whereas THE CODE COMPANY is the owner of the Software and the Licensee wishes to obtain the right to use the Software for specific purposes; and
Whereas the Licensee has accepted the fees detailed in the Schedule of Fees and Rates and agrees to the terms and conditions below;
NOW THEREFORE THE CODE COMPANY agrees to licence such Software to the Licensee on the following terms and conditions:
Unless the contrary is clearly indicated, the following words and/or phrases used in this Agreement shall have the following meaning:
1.1 Agreement shall mean this document together with and including the Schedule of Fees and Rates and all other written appendices, annexures, exhibits or amendments attached to it from time to time;
1.2 Client shall mean the person or entity defined by the information on the Account Information page of the Advocate Billing application (or software);
1.3 Commencement date shall mean the date of acceptance of this Agreement by the Licensee;
1.4 Confidential information shall mean:
1.4.1 any information of whatever nature, which has been or may be obtained by either of the Parties from the other, whether in writing or in electronic form or pursuant to discussions between the parties, or which can be obtained by examination, testing, visual inspections or analysis, including, without limitation, scientific business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas;
1.4.2 analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition;
1.4.3 any dispute between the parties resulting from this agreement;
1.5 Copyright shall mean all rights of Copyright whether existing now or in the future in and to the Software and Software Documentation;
1.6 Hosting site shall mean the website (https://www.advocatebilling.co.za/web)
1.7 Intellectual Property Rights shall mean all present and future rights in the Software and Software Documentation and other rights, which may in the future be based thereon, including but not limited to Copyright;
1.8 Licence shall mean a limited, non-transferable and non-exclusive right granted to the Licensee to use the Software and Software Documentation in terms of this Agreement.
1.9 Notice shall mean a written document;
1.10 Parties shall mean both THE CODE COMPANY and the Licensee;
1.11 Registered user shall mean the person that has been granted a unique login and password to access the Software. There may be multiple registered users per Client;
1.12 Schedule of Fees and Rates shall mean the information detailing THE CODE COMPANY’s prevailing licence fees and rates for use of the Software as well as possible support services. This information is available on the pricing page of the Hosting site;
1.13 Software shall mean Advocate Billing Software application provided by THE CODE COMPANY to the Licensee on the hosting website (https://www.advocatebilling.co.za/web) for the duration of this Agreement; and
1.14 Software documentation shall mean the knowledge base containing instructions pertaining to the use of the Software and setting out the operation of the Software; 1.15 Hosting Services shall mean the hosting of the Advocate Billing Software on an internet server provided either by THE CODE COMPANY or a third party hosting provider.
1.16 Trial version shall mean a version of the software which may have limited features and is limited in terms of
the length of time the software may be used and will cease operating after a predetermined amount of time (“the Trial
Period”) due to an internal mechanism within the Trial Version. The software will notify the Licensee that the software is in trial mode, which may include, but would not be limited to, watermarking.
2.1 THE CODE COMPANY herewith grants a Licence to the Licensee to operate the Software for its intended function for the benefit of the Licensee and to use the Software Documentation for the duration of this Agreement;
2.2 The Licensee shall not have the right to sub-license the software to any third party for compensation;
2.3 The Licensee shall not modify, decompile, disassemble or otherwise reverse-engineer the Software, or attempt to do any of these;
2.4 The Licensee shall allow THE CODE COMPANY, upon reasonable notice, access to its premises to conduct a reasonable audit of the Licensee’s compliance with the Agreement;
2.5 Subject to the terms and conditions of this agreement THE CODE COMPANY may grant
to the Licensee a non-exclusive license of the Trial Version strictly for The Licensee’s internal evaluation and review
purposes and not for production purposes.
3.1 This Agreement shall commence on the Commencement Date. Thereafter the agreement will proceed on a month to month basis.
3.2. THE CODE COMPANY reserves the right to make changes to the Software Licence Agreement at any time without notice. An updated version of our Software Licence Agreement will be posted on the Website.
3.3. It is the Licensee’s responsibility as a diligent user to check any amended Software Licence Agreement Terms posted on the Website.
3.4. If the Licensee objects to any amended Software Licence Agreement Terms, the Licensee is entitled to terminate the relationship with THE CODE COMPANY under clause 4.
4.1 Either of the parties can terminate the Agreement at any stage by giving the other party one calendar month’s notice in writing.
4.2 In the event of termination of this Agreement by either party for whatever reason, the other party reserves the right to exercise any rights or remedies which may have accrued as at date of termination;
5.1 THE CODE COMPANY shall make the Software available for use to the Licensee on the Hosting site for the duration of this Agreement.
5.2 Save for the right to operate the Software for its benefit, THE CODE COMPANY shall provide the Licensee with the following services in consideration for the payment of the applicable fees as determined in the Schedule of Rates and Fees for the duration of this Agreement:
5.2.1 Email support from the support email address listed on the Hosting site. This support will be provided during normal working hours, defined as Monday to Friday 08h00 to 17h00, excluding South African public holidays. Please expect a 24 hour turnaround time;
5.2.2 Periodic updates to ensure that the Software conforms to new statutory requirements and which THE CODE COMPANY will endeavour to make available prior to the date of coming into operation of the legislation in question;
5.2.3 New releases of the Software with system improvements.
5.3 THE CODE COMPANY could provide the Licensee with consultations, training and other services as may be agreed upon in writing by the parties from time to time.
5.4 Subject to the provisions of 9.1, operation of the Software is at the sole risk of the Licensee and the Licensee shall take all the reasonable and necessary steps usually implemented with a billing application, or which the Licensee usually implements with its billing procedures, to ensure that the operation of the Software complies with the Licensee’s requirements.
5.5 THE CODE COMPANY may from time to time supply to the Licensee, as part of the software, new releases, upgrades and enhancements to the software. New releases, upgrades and enhancements which may bring about changes to the software are solely at the discretion of THE CODE COMPANY and will form part of the software and the Licensee accepts such potential changes as part of the licence agreement.
5.6 THE CODE COMPANY may temporarily suspend its hosting service to repair, maintain, upgrade, modify, replace or improve any of its hosting services. Where circumstances permit, THE CODE COMPANY will provide prior notice of any hosting service suspension to the Licensee. However, THE CODE COMPANY will not be held liable for any resulting loss or damage suffered as a result of the hosting service suspension.
6.1 THE CODE COMPANY will store all relevant Licensee data and will maintain regular daily backups at offsite storage facilities. Data will be retained for a period of 1 year while the Licensee remains an active user.
6.2 In the case of a termination of the Agreement, whether agreed or deemed, the Licensee data will be stored for a further period of 6 months at no charge. The Licensee may elect to have the data stored by THE CODE COMPANY for a monthly fee or request for a backup to be made available to the Licensee for a once off fee. Rates are stipulated in the Schedule of Rates and Fees.
6.3 There is currently no limit on the space usage for the Licensee but THE CODE COMPANY reserves the right to charge for storage space if the Licensee’s space usage is more than the norm.
6.4 THE CODE COMPANY is not responsible or liable for the deletion or failure to store data or the loss thereof due to technical failure beyond the control of THE CODE COMPANY.
7.1 In consideration of the Licence being granted, the Licensee shall pay THE CODE COMPANY the following licence fees:
7.1.1 A fee based on the Schedule of Rates and Fees;
7.1.2 Where applicable THE CODE COMPANY will provide the Licensee with a VAT invoice in electronic format. The Licensee agrees that by submitting an application form to accepting the electronic licence agreement when making application for the use of the software, that the application is seen as the Licensee’s confirmation to accept electronic invoices for claiming input tax;
7.1.3 The Licensee must pay the licence fees by debit order. The Licensee authorises THE CODE COMPANY to make the necessary transfers from the designated bank account at the beginning of the month as per the Schedule of Rates and Fees for the duration of Our Hosting the Agreement. A rejected debit order will accrue a handling fee, per rejection;
7.1.4 In instances where the Licensee has requested that THE CODE COMPANY deducts the Licence Fee using the Licensee’s credit card, it is the Licensee’s responsibility to ensure that the Licensee provides valid and current credit card details. The Licensee will be held liable for all fines and penalties charged by any credit card provider (eg. American Express, Visa, MasterCard) resulting from a failed transaction due to incorrect details.
7.1.5 THE CODE COMPANY has the right to deny access to the Software should the Licensee fail to pay the agreed fee within the time period stipulated herein, in which event the Licensee will be unable to access the Software until the outstanding invoices are paid;
7.2 The Licensee shall pay THE CODE COMPANY for such further consultations, support, training and other services as are required by the Licensee from The Code Company from time to time at the prevailing rates based on the Schedule of Rates and Fees. In addition, the Licensee may not demand any discount, refund, or reduction in respect of any service fees provided. Should the Licensee withhold any payment of any amount owed to The CODE COMPANY for any reason, (except for an actual breach by The CODE COMPANY of the Licencing Agreement), The CODE COMPANY shall have the right to suspend the Licensee’s access to the software until such time as all outstanding fees have been paid.
7.3 At the option of THE CODE COMPANY, the Fees shall escalate annually, on 1 January, between the following range:
7.3.1 the annual inflation rate as determined by the Consumer Price Index for the preceding calendar year; and
7.3.2 12 % (twelve percent).
7.4 The determination by THE CODE COMPANY of the escalation of the Fee shall also consider the number and extent of statutory changes affecting the operation of the Software in any given year.
8.1 The Licensee shall and, where applicable, at own cost and risk:
8.1.1 acquaint itself with the contents of this Agreement;
8.1.2 acquaint itself with the Software, its compatibility with the Licensee’s computer/mobile equipment and software, and its capabilities and suitability to achieve the results required by the Licensee;
8.1.3 select only suitably trained staff to operate the Software;
8.1.4 maintain and update machine operating software required for operating the Software; and
8.1.5 abide by all local, national and international laws and regulations;
8.1.6 maintain security and confidentiality of login and password details;
8.1.7 not use the software to provide services under any name other than that of the Licensee;
8.1.8 not use the software to process the data of third parties without THE CODE COMPANY’S prior written consent;
8.1.9 install a PDF reader in order to read invoices.
8.2 Each email address added to the Software by THE LICENSEE consists solely of intended recipients who:
8.2.1 can or will be categorised as an “opt-in” recipient by his, her or its agreement with THE LICENSEE to receive such information via email, and
8.2.2 has not or will not have notified THE LICENSEE of his, her or its desire not to receive emails (i.e. no such person has “opted out” of the receipt of email with respect to THE LICENSEE, their products or services).
9.1 THE CODE COMPANY makes no representation and gives no warranties, whether expressed or implied, as to the suitability and operability of the Software for the Licensee’s needs, its quality or functionality or its fitness for any purpose whatsoever and THE CODE COMPANY does not represent or warrant that the operation of the Software will be uninterrupted or without error or be compatible with all versions of all browsers.
9.2 THE CODE COMPANY warrants that for the duration of this Agreement;
9.2.1 the Software will be capable of being used for its intended purpose;
9.2.2 that all documentation, training and additional services provided shall be reasonably accurate, effectively conducted in a professional manner and provide adequate support for the use of the Software.
9.3 In the event that the Software and/or such additional documentation and services referred to in 9.2 fail to meet the warranted standards, then THE CODE COMPANY shall at its own expense and election, depending on the circumstances:
9.3.1 repair the Software to ensure that it is capable of being used as intended;
9.3.2 upgrade or improve such additional services or documentation so that it is capable of being used as intended; or
9.3.3 replace the Software with similar Software, which complies in all aspects with the intended purpose of the Software;
9.4 The warranties set out in 9.2 and 9.3 shall not apply in the event that:
9.4.1 The breach of warranty is a result of a force majeure event as set out in 21; or
9.4.2 The Software has been subject to misuse, neglect or unauthorised alteration by the Licensee.
9.5 Subject to 9.6 THE CODE COMPANY will in no event be liable to the Licensee for:
9.5.1 any direct or incidental, indirect, special or consequential damages or loss, including but not limited to, interrupted or complete loss of use, revenues, profits, or savings; or
9.5.2 loss or damage to the Licensee’s data or database; or
9.5.3 claims, demands or actions against the Licensee by any third parties, or payments due to or made by the Licensee to third parties; or
9.5.4 loss of funds contained in, dispensed by or associated with the Software; or
9.5.5 any faulty installation or implementation, delay, failure, breakdown or malfunction of the Software, interruption of service or inability to use the Software; or
9.5.6 failure to send e-mails and reach the intended recipient. If any e-mails are sent through the use of the software and the sending or the receipt of the e-mail fails, including as a result of the sender not being recognised as a safe sender or the receiver not having marked the sender as safe sender or service provider issues or for any other reason whatsoever;
9.5.7 any other loss or damage of whatsoever nature which may be sustained by the licensee;
arising out of any cause of whatever nature and however arising, including but not limited to the negligence on the part of THE CODE COMPANY, its hosting provider/s, its consultants, agents or representatives.
9.6 The liability of THE CODE COMPANY for all damages of whatever nature suffered by the Licensee as a direct result of faulty Software shall be limited to the refund of the Licence fees paid for the previous 1 (one) month period. It being recorded and agreed that such liability shall be completely excluded if the Licensee itself attempts to correct or allows third parties to correct or attempt to correct Software or in any manner interfere with the Software without the prior written consent of THE CODE COMPANY. This clause will apply even if you advised the CODE COMPANY of the possibility of loss of damage prior to its occurrence.
9.7 THE CODE COMPANY shall not be liable for any delay, malfunction, faulty implementation, failure breakdown, damage,or injury suffered by the Licensee as a result of:
9.7.1 the Software or other Software and/or computer programs and/or support services being supplied by or obtained by the Licensee from any source without the prior written consent of THE CODE COMPANY; or
9.7.2 the Software or other Software and/or computer programs being modified by the Licensee or any third party not authorised to do so in terms of the agreement; or
9.7.3 the actions or the requirements of any telecommunications authority or supplier of telecommunications services or software.
9.7.4 the interruption and or unavailability of hosting services on which the software is hosted. Included within interruption or unavailability of the hosting services is any of the following:
9.7.4.1 software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services,
9.7.4.2 non-performance or unavailability of any of the services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail Servers,
9.7.4.3 non-performance or unavailability of external communications networks to which the Licensee or the Licensee’s network infrastructure is connected, and
9.7.4.4 repairs, maintenance, upgrades, modifications, alterations or replacement of any hardware forming part of the hosting services, or any faults or defects in the hardware.
In no event will THE CODE COMPANY be liable for loss of profits, revenue, anticipated saving, business transactions, goodwill or other contracts, or for incidental special or consequential damages arising out of or in connection with the Software or the delivery, installation, implementation, modification, servicing, execution, performance or use of the Software alone or in combination with any other computer software, or arising out of or in connection with the provision of other support services by THE CODE COMPANY to the licensee. It is irrelevant if this is due to negligence (carelessness) or breach of contract.
10.1 The Licensee acknowledges that the Copyright and any and all of the Intellectual Property Rights used or embodied in or in connection with the Software and Software documentation are and will remain the sole property of THE CODE COMPANY.
10.2 The Licensee shall not question or dispute the ownership of such rights at any time during the continuation in force of the agreement or thereafter.
10.3 THE CODE COMPANY warrants that the software does not infringe any third party patent, copyright, trademark or any other intellectual property rights.
11.1 During the existence of this agreement the Licensee shall not make any offer(s) of employment to THE CODE COMPANY employees, nor employ THE CODE COMPANY employees, or otherwise acquire the services of THE CODE COMPANY employees other than in terms of this Agreement or another agreement concluded between the Licensee and THE CODE COMPANY.
11.2 For the purposes of 11.1 an employee who resigns from the employ of THE CODE COMPANY and immediately thereafter accepts a position of employment, whether temporary or permanent, with the Licensee shall be regarded as a THE CODE COMPANY employee.
11.3 Should the Licensee obtain the services of a THE CODE COMPANY employee in breach of 11.1, the Licensee shall pay to THE CODE COMPANY upon demand an amount equal to 20% (Twenty Percent) exclusive of Value Added Tax of the total annual cost to THE CODE COMPANY of the employee, including but not limited to the total earnings, THE CODE COMPANY contributions and fringe benefits of the employee.
12.1 Should the Licensee breach any stipulation contained in this Agreement, and that breach is not due to force majeure, then;
12.1.1 THE CODE COMPANY may terminate this agreement, provided that the Licensee fails to remedy such breach within seven (7) calendar days after receiving a Notice from THE CODE COMPANY. Provided further that THE CODE COMPANY confirms this termination, by way of a Notice to the Licensee, and claim all damages that THE CODE COMPANY might have suffered as a result of that breach; or
12.1.2 THE CODE COMPANY may claim specific performance of this agreement from the Licensee and all damages that it might have suffered as a result of that breach;
12.1.3 THE CODE COMPANY may suspend access to the software with immediate effect.
12.2 Should THE CODE COMPANY breach any stipulation contained in this agreement, and that breach is not due to force majeure then;
12.2.1 The Licensee may terminate this agreement; provided that THE CODE COMPANY fails to remedy such breach within seven (7) calendar days after receiving a Notice from the Licensee. Provided further that the Licensee confirms this termination, by way of Notice to THE CODE COMPANY;
12.2.2 Any claim for damages which the Licensee may bring pursuant to breach of the party of THE CODE COMPANY shall be subject to the provision of 9.
13.1 The clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in the interpretation of this Agreement;
13.2 Any reference in this Agreement to the singular includes the plural and vice versa
13.3 Any reference to this Agreement to natural persons includes legal persons and references to any gender include references to the other genders and vice versa;
If any provisions of this agreement are found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of this agreement will not be affected thereby.
15.1 The parties shall hold in confidence all Confidential Information received from each other and not divulge the Confidential Information to any person, including any of its employees, save for employees directly involved with the execution of this agreement.
15.2 The parties shall prevent disclosure of the Confidential information, by the use of reasonable means which are at least as stringent as those used to protect the party’s own confidential information, except as may be required by law;
15.3 It is recorded that the following information will for the purpose of this agreement, not be considered to be confidential information:
15.4.1 information known to either of the parties prior to the date that it was received from the other party; or
15.4.2 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
15.4.3 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 party of the recipient of such information.
15.4.4 Information which either of the parties, in writing, authorises the other to disclose.
This agreement does not constitute either of the parties an agent or legal representative of the other for any purposes whatsoever and neither of the parties shall be entitled to act on behalf of or to represent the other unless duly authorised thereto in writing.
17.1. Notifying each other. A dispute concerning this Agreement exists once a Party notifies the other in writing, detailing the nature of the dispute, requesting that it be resolved as per this clause. The parties must refer any dispute to be resolved by:
17.1.1 Negotiation (direct talks to try and agree how to end the dispute); failing which
17.1.2 Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
17.1.3 Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
17.2. Negotiation. Each party must make sure that their chosen representatives meet within 10 business days, to negotiate and try to end the dispute by written agreement within a further 15 business days.
17.3. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
18.1 If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
18.2 The decision of the Arbitrator shall be final and binding on the parties, who shall summarily carry out that decision and either of the parties shall be entitled to have the decision made an order of any court with competent jurisdiction.
18.6 The “arbitration” clause in this agreement shall be severable from the rest of this agreement and therefore shall remain effective between the parties after this agreement has been terminated.
18.7 No clause in this agreement which refers to arbitration shall mean or be deemed to mean or interpreted to mean that either of the parties shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
19.1 THE CODE COMPANY elect as their domicilium citandi et executandi the physical addresses indicated on the front page of this agreement. The Licensee elect as their domicilium citandi et executandi the physical addresses indicated on the Client Information page of the Advocate Billing application (or software).
19.2 Either of the parties may change its domicilium citandi et executandi to another address within the same country by way of a notice to the other party to this agreement, provided that such a notice is received by the addressee, at least seven (7) calendar days prior to such a change taking effect.
20.1 The Parties elect the Domicilium of this Agreement for all notices and other communications to be delivered for the purpose of this Agreement.
20.2 Any notice or communication required or permitted to be given in terms of this agreement shall only be valid and effective if it is in writing;
20.3 Any notice addressed to either of the parties and contained in a correctly addressed envelope and sent by registered post to it at its chosen address or delivered by hand at its chosen address to a responsible person on any day of the week between 09h00 and 16h00 excluding Saturdays, Sundays and South African public holidays, shall be deemed to have been received, unless the contrary is proved, if sent by registered post on the 14th (fourteenth) calendar day after posting and in the case of hand delivery on the day of delivery.
20.4 Any notice sent by telefacsimile to either of the parties at its telefacsimile number shall be deemed unless the contrary is proved, to have been received:
20.4.1 If it is transmitted on any day of the week between 09h00 and 16h00 excluding Saturdays and Sundays and South African public holidays within two (2) hours of transmission.
20.4.2 If it is transmitted outside of these times within two (2) hours of the commencement of any day of the week between 09h00 and 12h00 excluding Saturdays and Sundays and South African public holidays after it has been transmitted.
21.1 Neither of the parties shall be liable for a failure to perform any of its obligations insofar as it proves;
21.1.1 That the failure was due to an impediment beyond its control;
21.1.2 That it could not reasonably be expected to have taken the impediment and its effects upon the party’s ability to perform into account at the time of the conclusion of this agreement; and
21.1.3 That it could not reasonably have avoided or overcome the impediment or at least its effects.
21.2 An impediment as aforesaid may result from events such as the following, this enumeration not being exhaustive:
21.2.1 war, whether declared or not, civil war, civil violence riots and revolutions, acts of sabotage;
21.2.2 natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lighting
21.2.3 explosions, fires, destruction of machines, factories and any kind of installation;
21.2.4 boycotts, strikes and lock-outs of all kinds, go-slows occupation of factories and premises and work stoppages;
21.2.5 failure of any supplier of electricity as well as no electronic communication service;
21.2.6 acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provision of this agreement.
21.3 For the purposes of this clause, “impediment” does not include lack of authorisations, licences, permits, or approvals necessary for the performance of this agreement and to be issued by the appropriate public authority if applicable.
21.4 Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the party seeking relief gives notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist, provided that if such impediment continues for a period of more than 60 (sixty) days either of the parties shall be entitled to terminate this agreement.
22.1 This agreement constitutes 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 this agreement and the parties will not be entitled to rely in any dispute regarding this agreement or any terms, conditions or representations not expressly contained in this agreement.
22.2 No variation of or addition to this agreement made by the Licensee will be of any force or effect unless reduced to in writing and signed by or on behalf of the parties. 22.3 Neither party to this agreement 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 this agreement.
23.1 Licensee acknowledges that integrity, honesty, and compliance with all applicable laws are core business values and practices that THE CODE COMPANY adopts.
23.2 Licensee warrants that it has not and will not participate, directly, indirectly, or at all, in any unlawful conduct as between itself and any party that may exert an influence over any end-user that may be construed as bribery and / or corruption as envisaged in the Prevention and Combating of Corrupt Activities Act, Act 12 of 2004, or any other applicable law or legislation.
23.3 Licensee accordingly indemnifies and holds THE CODE COMPANY harmless against any such claim of whatsoever nature in terms of which it is alleged that Licensee has acted unlawfully and Licensee agrees to defend any such claim made against THE CODE COMPANY on THE CODE COMPANY’s behalf and further agrees to pay any legal costs associated therewith.
23.4 Licensee acknowledges that if on reasonable suspicion THE CODE COMPANY believes that Licensee is participating in such unlawful conduct, THE CODE COMPANY will be obliged in law to report such conduct to a police official.
23.5 Licensee also acknowledges that the Prevention and Combating of Corrupt Activities Act contains extraterritorial provisions and that even if the alleged illegal conduct occurred outside of the Republic of South Africa, a court of the Republic of South Africa will, in certain circumstances, have jurisdiction in respect of such alleged illegal conduct.
23.6 THE CODE COMPANY reserves the right to summarily cancel this agreement on written notice if on reasonable suspicion THE CODE COMPANY believes that Licensee is participating in such unlawful conduct
24.1. All Registered User information allocated to the Licensee is personal to the Licensee and the Licensee will be liable for any loss or damage the Licensee or third parties have suffered because of the Licensee’s actions or the actions of a person to whom the Licensee has disclosed the Licensee’s Registered User information.
24.2. The Licensee authorises THE CODE COMPANY to act on any instruction given by or purporting to originate from the Licensee even if it becomes clear that both parties have been defrauded by someone else unless the Licensee has notified THE CODE COMPANY under clause 24.4 before THE CODE COMPANY acted on a fraudulent instruction.
24.3. If any security violations are reasonably believed to have occurred in connection with the Licensee’s account, THE CODE COMPANY will investigate and, if necessary, change the relevant Registered User information, including access codes and passwords, and notify the Licensee immediately.
24.4. The Licensee must tell THE CODE COMPANY immediately if any other person gains access to the Licensee’s Registered User information by following the procedures relating to reporting misuse http://www.advocatebilling.co.za/legal/reporting-abuse-procedure and give THE CODE COMPANY full co-operation in any investigations to be carried out.
24.5. The Licensee indemnifies THE CODE COMPANY against any claim arising from:
24.5.1 the Licensee’s disclosure of The Licensee’s Registered User information to a third person;
24.5.2 the use of the Registered User information by a third person; or
24.5.3 any resulting action by the Licensee or a third party.
24.6. THE CODE COMPANY reserves the right to take any action THE CODE COMPANY finds necessary to preserve the security and reliable operation of THE CODE COMPANY’s infrastructure. The Licensee may not do anything (or permit anything to be done) that will compromise THE CODE COMPANY’s security.
24.7. THE CODE COMPANY has systems in place to assist THE CODE COMPANY’s critical technical infrastructure to recover from a natural or human-induced disaster. However, THE CODE COMPANY does not specify any recovery time and is not liable for any loss or damage the Licensee may suffer as a result of a disaster. The Licensee must make back-ups of the Licensee’s data. Nothing contained in this Agreement will be seen as a representation that any back-ups of data THE CODE COMPANY has implemented will be successful or in any way will assist with disaster recovery.
25.1. THE CODE COMPANY monitors its hosting facilities, but not the Licensee’s specific activities. Where THE CODE COMPANY has to intercept communications in accordance with the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 (“the Monitoring Act”), THE CODE COMPANY will do this according to the requirements of the Monitoring Act.
25.2. With specific regard to the monitoring of content that is found on Advocate Billing Software that belongs to the Licensee and which is hosted by THE CODE COMPANY, THE CODE COMPANY has no knowledge of, nor interest in the details of content hosted by THE CODE COMPANY on the Licensee’s behalf using the software and the hosting services .
25.3. THE CODE COMPANY may disclose any content, material, or data (including any of the Licensee’s data) if:
25.3.1 required by law;
25.3.2 lawfully asked to do so by any authorities, including the South African Police Services pursuant to a subpoena under section 205 of the Criminal Procedure Act 51 of 1977; or
25.3.3 according to a judicial, administrative or governmental order. THE CODE COMPANY does not have to give the Licensee notice.
25.4. The Licensee will have no recourse against THE CODE COMPANY if THE CODE COMPANY acts under this clause and the Licensee accordingly waive the Licensee’s rights to make any claim or demand or to institute any legal proceedings against THE CODE COMPANY.
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.
No indulgence leniency or extension of a right, which either of the parties may have in terms of this agreement and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor or preclude the grantor from exercising any of the rights that it has derived from this agreement or be construed as a waiver by the grantor of that right.
No waiver on the part of either party to this agreement of any rights arising from a breach of any provisions of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
In the event that any of the terms of this Agreement are found to be invalid, unlawful unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
The validity and interpretation of this Agreement will be governed by the Laws of the Republic of South Africa.
The person accepting this Agreement on behalf of the Licensee warrants that he/she has the authority to do so.
Despite termination of the Agreement, any clause, which, from the context, contemplates on-going rights and obligations of the Parties, will survive the termination and continue to be in full force and effect.