Terms of Use
1. Application of Terms
- These Terms apply to your use of the Service (as that term is defined below). By deploying and use of the Software:
1.1 you agree to these Terms; and
1.2 where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
2. Changes
2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2 These Terms were last updated on 28th January
3. Definitions
3.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with Customer, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
3.2 “Documentation” means the documentation provided with the Software to Customer hereunder, together with any and all new documentation releases, corrections and updates furnished by Boxfusion to Customer under this Agreement.
3.3 “Effective Date” means the date on which the Order Form is signed by the Customer
3.4 “Named User” means a specific individual identified by a valid e-mail address, employee number, or mobile number who can access the Software and/or a Software Module irrespective as to whether any such Named User is actively logged on to the Software Module at any point in time.
3.5 “Order Form” means (i) a Boxfusion order form accepted by both Parties, pursuant to which Customer may order Software and Services from Boxfusion, or (ii) any document accepted by and between an Authorized Reseller of Boxfusion pursuant to which Customer may order Boxfusion Software and Services from Boxfusion.
3.6 “Services” means collectively the Professional Services and/or Support and Maintenance.
3.7 “Software Subscription” means Customer’s non-exclusive, non-sublicensable, revocable right to use the applicable Software, subject to the terms of this agreement, for the Subscription
3.8 “Subscription Term” means the period of time as from the Effective Date for which a Software Subscription is valid, as set forth in the applicable Order Form together with any renewals
3.9 “Software” means the object code version of the Boxfusion proprietary software for which Customer has purchased a Software Subscription hereunder, as indicated on the applicable Order Form, along with any Updates thereto provided by Boxfusion to Customer hereunder. Software shall also include any Documentation and any Updates of the same specific Software provided to the Customer under this Agreement.
3.10 “Software Module” means a logical sub-set of the functionality provided by the Software which is licensed separately from other Software Modules as indicated on the applicable Order Form. In other words, the Software may be composed of one, or more Software Modules, each of which will have a maximum allowable number of Named Users as specified in the Order
3.11 “Update” means any major release, minor release, bug fix, service pack and/or patch of or for the Boxfusion Software that is made generally available by Boxfusion to its customers during the term of this Agreement.
4. Software Subscriptions
4.1 Grant of License. Subject to all of the terms and conditions of this Agreement, including the payment of all applicable fees, Boxfusion grants to Customer a Software Subscription for use internally, but only in accordance with (a) the technical specification Documentation generally made available by Boxfusion to its customers with regard to the specific Software (“Documentation”), (b) this Agreement and (c) any volume, user, field of use, configuration or other restrictions set forth in the applicable Order Form or this Agreement. “
4.2 Named Customer may register the number of Named Users on the Software as specified in the applicable Order Form. For clarity, registration of Named Users in excess of such number shall not be deemed a breach of this Agreement provided that Customer pays the charges for such excess usage described in Section 7.4.
4.3 Subscription Terms and Renewals. The Software is licensed under each Order Form on a subscription basis (“Subscription”) for the Subscription Term as from the Effective Date. Unless terminated earlier in accordance with Section 8, each Subscription Term will be renewable upon expiration of the initial Subscription Term for an additional successive one (1) calendar year. In order to renew the Subscription, the Customer shall be required to give the Boxfusion notice of such renewal at least thirty (30) days prior to expiration of the then-current Subscription Unless otherwise specified on the Order Form, the rates for any Subscription Term renewals shall be rates of the current Subscription adjusted for CPI as determined by Statistics South Africa.
4.4 Subscription Term renewals shall be rates of the current Subscription adjusted for CPI as determined by Statistics South Africa.
4.5 Installation and Customer may copy and install on Customer’s computers for use only by Customer’s employees, Affiliates and Contractors (each as defined in Section 4.5 below) as many copies of the Software as is designated on the applicable Order Form. Customer may also make a reasonable number of copies of the Software for back-up and archival purposes.
4.6 Use by Affiliates and Subject to the terms and conditions of this Agreement,
4.7 Customer’s Affiliates and Contractors may use the licenses granted to Customer, provided that
(a) such use is only for Customer’s or such Affiliate’s benefit, (b) Customer agrees to remain responsible for each such Affiliate’s and Contractor’s compliance with the terms and conditions of this Agreement and (c) upon request Customer will identify each such Affiliate and Contractor. Use of the Software by the Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Order Form.
(b) License Customer shall not (and shall not allow any third party to):
(c) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever;
(d) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;
(e) remove any product identification, proprietary, copyright or other notices contained in the Software;
(f) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Boxfusion; or
(g) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
5. Ownership
5.1 Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Boxfusion and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications, Updates, and derivative works thereof, even if effected at the Customer’s specific instance and request. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Boxfusion and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications, Updates, and derivative works thereof, even if effected at the Customer’s specific instance and request. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
6. Delivery and Use Manager
6.1 Delivery. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form.
6.2 Customer understands and agrees that upon activation of the Software, Boxfusion may activate a software component (“Use Manager”) that will provide certain information to Boxfusion regarding the system environment in which the Software is operating, and will monitor the use and security of the Software. For example, the Use Manager uses HTTP protocol and encryption to provide information about the Operating System, amount of RAM, type and number of CPUs and MAC address, as well as the Customer name, version of the Software being used, and number of active users, provided, however, that under no circumstances does the Use Manager capture or transmit to Boxfusion any Customer data being processed by the Software. In this regard, and to the extent that this may be regarded in the Protection of Personal Information Act, 2013 as Personal Information so defined, the Customer specifically consents to the use of such Customer data in the manner referred to in this section.
7. Invoicing and Payment
7.1 Invoicing of Subscription Invoicing of the Subscription fees in relation to the Software will occur annually in advance upon the start of the Subscription Term, and every year thereafter, no earlier than 30 days before the anniversary, until the end of the Subscription Term.
7.2 All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made in South African Rand. Unless otherwise specified on the applicable Order Form, all Subscription fees, Professional Services fees, training fees, and setup fees are due within thirty (30) days of Boxfusion’s or Authorised Reseller’s invoice.
7.3 Any late payments will carry interest at the prime rate of interest, determined by the Standard Bank of South Africa Limited, plus 2% (Two Percent) compounded annually, which interest shall run from the date on which such payment became due and owing.
7.4 Audit Rights and Excess Boxfusion shall have the right at its expense to audit Customer’s usage of the Software for the sole purpose of verifying compliance with the terms of this Agreement; Provided that Customer is provided at least ten (10) business days advance written notice of Boxfusion’s intention to audit. If the audit reveals Customer has exceeded the number of Named Users recorded in the Order Form, then Customer shall pay for the excess usage and for any ongoing excess usage, as invoiced by Boxfusion on a subsequent invoice.
7.5 Customer understands and agrees that: (i) in case of breach by Customer of the payment terms stipulated in this Agreement, Boxfusion will have the right to suspend the Software Subscription, access to the Software and provision of the Services and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term; (ii) the Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription.
7.6 Purchases through Authorised Resellers. In the event Customer purchases a Software Subscription through an Authorised Reseller of Boxfusion, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, payment or Such terms and conditions shall be negotiated solely by and between Customer and such Authorised Reseller. In the event Customer ceases to pay the Reseller, or terminates its agreement with the Reseller, Boxfusion shall have the right to terminate Customer’s access to the Software and the Software Subscription at any time upon thirty (30) days’ prior written notice to Customer, unless Customer and Boxfusion have agreed otherwise in writing. Boxfusion shall not be liable for any disputes arising from or in connection with the transaction between the Customer and such Authorised Reseller, and shall not and are not required to mediate or resolve any such disputes or disagreements.
8. Term of Agreement
8.1 Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any liquidation, receivership, trust deed, creditors a compromise, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise Upon any expiration or termination of this Agreement, Customer shall cease any and all use of any Software and destroy all copies thereof and so certify to Boxfusion in writing.
8.2 Survival. Sections 4.6 (License Restrictions), 5 (Ownership), 6 (Invoicing and Payment), 8 (Term of Agreement), Error! Reference source not found. (Granting of Perpetual License), Error! Reference source not found. (Non-Solicitation of Staff), 9.3 (Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Confidential Information), 15 (General), and Customer’s right to Work Product and ownership of Customer Content described in Section 11, in addition to every other section which, of necessity is required to survive termination, shall survive any termination or expiration of this Agreement.
9. Limited Warranty and Disclaimer
9.1 Limited Warranty. Boxfusion warrants to Customer that for a period of ninety (90) days from the Effective Date (the “Warranty Period”), the Software shall operate in substantial conformity with the Documentation. Boxfusion does not warrant that Customer’s use of the Software will be uninterrupted or error-free, will not result in data loss, or that any security mechanisms implemented by the Software will not have inherent Boxfusion’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Boxfusion’s sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the reported nonconformity, to replace the non-conforming Software with conforming Software, or if Boxfusion determines such remedies to be impracticable within a reasonable period of time, to terminate the applicable Subscription Term and refund the Subscription fee paid for the non-conforming Software. Boxfusion shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period.
9.2 Exclusions .The above warranty shall not apply: (a) if the Software is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Software by Customer or any third party; (c) to defects in the Software due to accident, abuse or improper use by Customer; or (d) to items provided on a no charge or evaluation basis.
9.3 Disclaimer. THIS SECTION 9 CONTAINS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER BOXFUSION NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
11. Professional Services
11.1 Professional Services. Boxfusion shall provide professional consulting services (“Professional Services”) purchased in the applicable Order The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of: (a) assistance with Software installation, deployment, change management, and usage; or (b) development or delivery of additional related Boxfusion copyrighted software or code. Boxfusion shall retain all right, title and interest in and to any such work product, code or software and any derivative, enhancement or modification thereof created by Boxfusion (or its agents) (“Work Product”). Unless otherwise specified in the applicable SOW, Customer shall have a perpetual right to use and distribute any Work Product delivered as part of the Professional Services for any internal business purpose, but may not distribute the Work Product to third parties as part of a product or service. Professional Services may be ordered by Customer pursuant to a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before Boxfusion shall commence work under such SOW. If the parties do not execute a separate Statement of Work, the Services shall be provided as stated on the Order Form.
11.2 Customer Obligations. Customer agrees to provide Boxfusion with such cooperation, materials, information, access and support which Boxfusion deems to be reasonably required to allow Boxfusion to successfully provide the Professional Services. Customer understands and agrees that Boxfusion’s obligations to provide Professional Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and
11.3 Customer shall reimburse Boxfusion for all reasonable travel, accommodation, communications, and out-of-pocket expenses incurred in conjunction with provision of the Professional Services (“Expenses”), provided that Boxfusion agrees that any such reimbursement may, at Customer’s written request, be limited by Customer’s standard travel reimbursement policies.
11.4 Customer Customer hereby grants Boxfusion a limited right to use any Customer data or other materials provided to Boxfusion in connection with the Professional Services (the “Customer Content”) solely for the purpose of performing the Professional Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Content.
12. Limitation of Remedies and Damages
12.1 BOXFUSION SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN
12.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BOXFUSION’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO BOXFUSION UNDER THIS AGREEMENT.
12.3 The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential
13. Confidential Information
13.1 Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Software, Documentation or technical information provided by Boxfusion (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Boxfusion without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Without limiting the foregoing, Customer shall ensure that its Procurement Agent is subject to written confidentiality terms that are no less protective of Boxfusion than the terms of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For clarity, the above confidentiality restrictions do not apply to Customer’s use of Work Product.
14. Customer Acknowledgement
14.1 Customer agrees that Boxfusion may publicly disclose Customer as a customer of
15. General
15.1 This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
15.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Republic of South Africa. The jurisdiction and venue for actions related to the subject matter hereof shall be the either the South Gauteng High Court or the Johannesburg Magistrate’s Court, and both parties hereby submit to the jurisdiction of such courts.
15.4 Attorneys’ Fees and The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
15.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth in the Order Form and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service or (d) on dispatch if sent by email.
15.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorised representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorised representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
15.7 Entire Agreement. This Agreement, its annexures, coupled with the Order Form, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Customer acknowledges that Boxfusion offers subscription- based products and that, in order to provide improved customer experience, Boxfusion may make changes to the Software or Documentation. In such event, Boxfusion will update the Documentation accordingly.
15.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.9 Force Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
15.10 Third-Party Code. The Software may contain or be provided with components subject to the terms and conditions of third party “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.