ERP Solutions Limited Terms and Conditions
1. OVERVIEW
a. ERP Solutions Ltd. ("LICENSOR ") is willing to license the software identified below to you only upon the condition that you accept all of the terms contained in this Licensee license agreement (collectively "agreement"). Please read the agreement carefully.
b. ERP Solutions Ltd has produced a product called Huge ERP, Huge accounting and Webatar CRM which is sold to you in terms of this license agreement.
c. ERP Solutions Ltd has partnered with a company called InterSystems Corporation which supplies a product called “Cache” and “Iris”. i) CACHÉ and Iris is a post-relational database that uniquely offers three integrated data access options: a robust object database, high performance SQL, and rich multidimensional access. ii) Caché and Iris enables rapid Web application development, extraordinary transaction processing speed, massive scalability, and real-time queries against transactional data - with minimal maintenance requirements. iii) Caché and Iris is available for Windows, OpenVMS, Linux and major UNIX platforms and it is deployed on systems ranging from two to over 10,000 simultaneous users
d. ERP Solutions Ltd.is shipped with the database “Caché” and Iris and all rights to use Caché and Iris is also covered in this agreement and falls under the license of ERP Solutions Ltd.
e. The “Licensee” who is defined as the party set out on the Licensee Details Form.
f. This Agreement is between ERP Solutions Ltd. ("LICENSOR ") and the Licensee.
2. LICENSE
a. ERP Solutions Ltd. ("LICENSOR ") grants to you an annual non-exclusive License to install and use the Software and to use the Documentation at the Site for your own internal purposes only and you accept the terms and conditions of this Agreement, provided always that if there is a limit to the number of users of the Software or other restriction specified on the Invoice, or otherwise imposed upon the License under this Agreement, the License to use the Software will be restricted accordingly. Upon payment of the annual License Fee, ERP Solutions Ltd may elect, in its sole discretion, to renew the License for successive periods of one (1) year in duration. Any such renewal will be subject to the terms and conditions of this Agreement.
b. If you are specified on the Invoice as a 'single-user' customer then you may install and use the Software on a single stand-alone computer at your Site. If you are specified on the Invoice as a 'multi-user' customer, then you may install the Software on a server at the site, but you must comply with the limit to the number of Users and other restrictions specified on the Invoice and in this Agreement. If you are specified on the Invoice as a being restricted in terms of the number of companies that can be created on the Software, you must comply with the limit and the other restrictions specified on the Invoice and in this Agreement.
c. License to use Caché or Iris in this license is limited to the use and install of Huge ERP, Huge accounting or Webatar and can only be used for this purpose.
3. TERMINATION OF SUBSCRIPTION
a. This agreement shall commence on the effective date of the Licensee Detail Form and shall continue for a fixed period of 12 (twelve) months thereafter (“the termination date”). If no notice of termination is given at least 90 days prior to the termination date, the agreement shall automatically be renewed for a further period of twelve months and the provisions above shall, mutatis mutandis, apply in respect of such 12 (twelve) month period.
b. Should the Licensee opt to cancel services after a 30-day period they are liable to pay for the annual Caché or Iris License fees.
4. TERMINATION OR SUSPENSION BY ERP SOLUTIONS LTD
ERP Solutions Ltd. ("LICENSOR ") may choose to terminate your subscription at any time by providing you with one month's written notice in advance. ERP Solutions Ltd may also terminate or suspend your subscription or access to all or any data immediately if:
a. The Licensee breaches any terms of this agreement and fails to remedy same within 10 (ten) days of receipt of written notification,
i, The Licensee fails to pay any amount due in terms of this agreement on the due date,
ii. The Licensee commits an act of insolvency as defined in the Insolvency Act
iii. Licensee breach any of these terms and the breach cannot be remedied,
No refunds:
No refund is due to you if you terminate your subscription or ERP Solutions Ltd terminates it in accordance with breach of contract
5. PAYMENT AND ANNUAL RENEWAL
The Licensee shall pay ERP Solutions Ltd. ("LICENSOR ") as an annual or monthly subscription fee prior to commencement of the Agreement. The annual subscription shall be paid in full or by means of a deposit & monthly installment program offered by ERP Solutions Ltd. ("LICENSOR ") at the ERP Solutions Ltd. ("LICENSOR ") s discretion. The monthly amount payable by the Licensee will be paid by means of debit order and by virtue of the Licensee’s signature on the debit order form.
a. Annual renewal entitles Customer to free upgrade (or upgrades) to the latest Huge Software’s software version specific to Licensee’s existing product category.
b. The Licensor shall be entitled to increase or decrease the annual subscription fee and or monthly investment at its sole and absolute discretion.
c. Failure to pay any amount on the due date, shall entitle ERP Solutions Ltd. ("LICENSOR "), without prejudice to any other remedies, to charge interest on a daily basis at 2.5% (two comma five percentage) per month from the due date of payment to the actual date of payment.
6. UPGRADES
Should you purchase a product as an upgrade of another product, then your ownership in the original product ceases. You are not entitled to sell the original product, nor can you continue to make use of the original product, except for archival purposes. If you use the original product for archival purposes, then the terms and conditions in this License apply in so far as they are relevant.
7. UPDATES
You acknowledge that at your request or consent optional features of the Software may download, install, and execute applets, applications, software extensions, and updated versions of the Software from ERP Solutions Ltd ("Software Updates"), which may require you to accept updated terms and conditions for installation. If additional terms and conditions are not presented on installation, the Software updates will be considered part of the Software and subject to the terms and conditions of the Agreement
8. LICENSORS OBLIGATIONS
a. ERP Solutions Ltd. ("LICENSOR ") shall use reasonable endeavours to support the product and operating system during the term of this agreement by providing remote, telephonic and e-mail support during working hours. ERP Solutions Ltd. ("LICENSOR ") shall use reasonable endeavours to respond to the Customer within 8 (eight) working hours of notification by the Licensee.
i. Working Hours are defined as Monday to Friday from 08:30 to 17:00 in New Zealand and excluding official public holidays.
b. The service to be provided shall be an endeavour to provide corrections for any errors found in the document or documentation which the Licensor shall endeavour to remedy as soon as reasonably possible in the circumstances.
c. The Licensee shall be responsible for the installation of corrections, updates and release to the product and for ensuring that its’ staff have the capability of doing so. Should the Licensee fail to install such systems correctly or at all in accordance with the Licensor’s instructions, the Licensor shall have the right to charge for services rendered in this regard
d. If ERP Solutions Ltd. ("LICENSOR ") cannot affect any release updates to the software telephonically, ERP Solutions Ltd. ("LICENSOR ") upon receipt of written authorisation from the Licensee, may attend at the Licensee’s premises to effect the version release update, in which event such attendance together with travelling time and expenses shall be charged to the Licensee by ERP Solutions Ltd. ("LICENSOR ").
e. ERP Solutions Ltd. ("LICENSOR ") shall not be responsible for and shall not be obliged to correct errors which result
i. from failure of equipment or other software which are not covered by this agreement including faults in electrical supply and operator error from whatever cause or caused by cable or connector malfunction or breaks
ii. from environmental conditions such as humidity and air-conditioning
iii. from accident, negligence, misuse or default by the Licensee or any third party or due to a force majeure
iv. from failure or fixed or removal storage media
v. Any time spent by the Licensor investigating an error caused by any of conditions contained in clause 8(e), shall be charged for by the Licensor as an additional cost at the Licensor’s current rates of service and travelling on a time and material basis.
9. SECURITY
This product is a Web Based (Enterprise Resource Planning) ERP package which means it can be used and accessed over the World Wide Web (WWW). In doing so the following conditions should be adhered to:
a. It is the sole responsibility of the Licensee to ensure that should he want to access the package over the WWW that he ensures he has a Firewall in place to protect his data.
b. It is the sole responsibility of the Licensee to ensure that should he want to access the package over the WWW that the Licensee purchase at his own cost a Secure Sockets Layer (SSL) License which has data encryption of various levels to protect his data transfer over the WWW.
c. The Licensor is not responsible for any data loss due to Hacking, Data theft, corruption or any misdemeanours over the WWW.
10. SECURITY SAFEGUARDS
a. ERP Solutions Ltd has put in various safeguards to help keep your data safe and secure. While ERP Solutions Ltd has taken steps to protect your data, no method of electronic storage is completely secure and we cannot guarantee absolute security. We will notify you if there appears to be unauthorised access to your system and may restrict access to the system until verified by an authorised person.
b. It is important that the Licensee ensure they play their part by keeping your login details secure and not letting any other person use them. Huge ERP system keeps logs and entries of user access in the system for audit and traceable reports. Should you suspect a beach please let us know immediately.
11. WARRANTY
a. You as the Licensee acknowledge that Software in general is not error-free and agree that the existence of such errors shall not constitute a breach of this Agreement. ERP Solutions Ltd undertakes to replace, at no charge, any defective media which form part of the product and are covered under the warranty, during the 90-day period after you took delivery of the product provided that such physical defects have not been caused by any modification variation or addition of the product not performed by the Licensor or caused by its incorrect use, abuse or corruption of the product or by use of the product with other software or on equipment which is incompatible.
b. The Warranty is applicable under the following conditions
i. The product is installed by ERP Solutions Ltd. ("LICENSOR ") or authorised representative.
ii. The Licensee attended a training course under the auspices of the ERP Solutions Ltd. ("LICENSOR ")
12. INTELLECTUAL PROPERTY
ERP Solutions Ltd. ("LICENSOR ") retains the right, title, or interest in ownership of the copyright and all other intellectual property rights in the product and the documentation. The Licensee acknowledges that nothing contained in this agreement shall give the Licensee any right, title, or interest in the intellectual property
13. LIABILITY
The product is supplied 'as is', without any warranty of any kind, express or implied. In no event will ERP Solutions Ltd. ("LICENSOR ") be liable for direct, indirect, special, incidental, or consequential damages arising out of the use or inability to use the product, or for loss of profit, business revenue, goodwill, or anticipated savings even if advised of the possibility of such damages. In particular, ERP Solutions Ltd. ("LICENSOR ") shall have no liability for any programs or data stored or used with the product, including the costs of recovering such programs or data. In the event that an exclusion contained in this agreement shall be held to be invalid for any reason and the Licensor becomes liable for loss or damage that may be lawfully limited, such liability shall be limited to the License fee paid by the Licensee for use of the product.
14. LICENSEE OBLIGATIONS
The Licensee undertakes
a. to keep master copies of the products and documentation in a safe place at the location
b. to appoint a manager as a contact person to deal with all correspondence and communication with ERP Solutions Ltd. ("LICENSOR ")
c. to select only suitably trained staff for operation of the product
d. to consent to the installation of any new releases or error fixes and versions of the software, in line with the Licensor’s recommendations and to keep machine operating software up to date and to pay agreed costs associated therewith
e. not to reverse engineer, dissemble, or translate, decode or modify the product
f. not to loan, rent, assign, sub-lease or in any other manner or form transfer the product to any unauthorised third party
g. consent to download TeamViewer to facilitate remote support as provided by ERP Solutions Ltd. ("LICENSOR "). The ERP Solutions Ltd. ("LICENSOR ") does not accept any liability for any installed programs on your computer, including any computer protection (firewall or virus scanner).
h. The licensee must input their own SMTP or email settings, in the product setup, to facilitate the email functionality available in the product.
15. CLOUD ONLINE VERSION
The Licensor endeavours to ensure a 95% uptime, however circumstances beyond our control can cause downtime. ERP Solutions Ltd. ("LICENSOR ") shall ensure that online access is fully operational as soon as possible.
a. Online backups are done on a daily basis by the Licensor and moved offsite to another server, however, Licensees are to ensure that daily Backups are being done and activated.
b. Licensees are to ensure that they download Backups from Cloud Online Servers to their own backup facility periodically.
c. Licensees are to take note that should a critical server crash occur, ERP Solutions Ltd. ("LICENSOR ") will endower to restore data onto another server as a matter of urgency. The Licensee may experience delays in restoring this service and operation.
d. Licensees are to ensure that they download Backups from Cloud Online Servers to their own backup facility on a regular basis so in the event of worst-case scenario of no backups or corrupt data on cloud server and offsite cloud server, Licensees can supply their most recent or latest backup
16. BACKUPS
ERP Solutions Ltd endeavors to maintain a backup of Licensee data, however it is strongly recommended that the User also maintain a backup of their data on a weekly basis.
a. The Licensee is to be made aware that Huge Software is backing up huge software’s data daily (meaning at the end of each day). Should a backup need to be restored, the last successful backup will be restored which could result in one to several days of transactional loss
b. Licensees are to ensure that they download Backups from Cloud Online Servers to their own backup facility on a regular basis so in the event of worst-case scenario of no backups or corrupt data on cloud server and offsite cloud server, Licensees can supply their most recent or latest backup.
c. Data loss is an unavoidable risk when using any technology. The Licensee is responsible for maintaining copies of your data entered in our systems.
17. NO COMPENSATION
Whatever the cause of any downtime, access issues or data loss, the Licensee’s only recourse is to discontinue using our services.
18. NOTICES
a. The parties choose as their domicilium citandi et executandi the address set out on the Licensee Agreement of this agreement for the purpose of serving any documents or legal process in regard hereto
b. Any notice given, and any payment made by a party to the other (“the addressee”) which:
i. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery: provided that the delivery is effected by or on behalf of the Licensee at the Licensor’s domicilium, the presumption shall only apply as regards to the Licensor if proof of receipt is obtained by the party effecting such delivery and duly produced as may be required to prove such delivery
ii. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the seventh day after the date of posting
19. AGREEMENT
a. This agreement constitutes the whole agreement between the parties. No variation, addition or cancellation of this agreement or any waiver of any rights shall be of any force unless reduced to writing and signed by the parties
b. No indulgence, leniency or extension of time which the Licensor may show to the Licensee shall in any way prejudice ERP Solutions Ltd. ("LICENSOR ") or preclude the Licensor from exercising its rights in the future
c. This agreement and all matters or disputes arising there from or incidental thereto shall be governed and construed in accordance with the laws of the New Zealand
20. JURISDICTION
a. ERP Solutions Ltd, by signature hereto and in terms of the provisions of Section 45 of the Magistrate’s Court Act No 32 of 1944, as amended, consents to the jurisdiction of the Magistrate’s Court in relation to any action or proceeding instituted against the Licensee in terms of , or arising out of provisions of this agreement, provided that the Licensee, in its sole and absolute discretion, shall be entitled to institute any such actions or proceedings, in any division of the High Court of New Zealand possessed of the requisite jurisdiction.
b. In the event of Software (Pty) Ltd. ("LICENSOR ") instituting legal proceedings against the Licensee to recover amounts due to Software (Pty) Ltd. ("LICENSOR ") or take any other legal steps arising out of this agreement, the Licensee shall be liable for legal costs on the scale as between attorney and own client and/or any collection costs.