THESE TERMS OF USE (“TERMS OF USE” OR “TERMS”) FOR ODOS (“ODOS” OR THE “`USE”) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SOFTWARE BY YOU, AGENTS AND END-USERS. By accepting these Terms, either by accessing or using the Software, or authorizing or permitting any agent or end-user to access or use the Software, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to 3 Degrees Limited that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Software. These Terms, or any part thereof, may be modified by us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Software after such posting shall be deemed to constitute acceptance by You of such modifications, additions or deletions.
Definitions
“The System” refers to all applications of the ODOS system developed by 3 Degrees.
“Agreement” means this Agreement together with all Annexures.
“Party” means either the Developer or the Client individually and “Parties” means both the Developer and Client collectively.
“Territory” means the Republic of Seychelles.
Commercial Agreement
Duration
The Commercial Agreement between the Parties shall be entered into the day the System goes live for an initial period of 1 year which shall automatically renew on the anniversary date of the Agreement, unless terminated or amended in terms of any applicable terms of this Agreement.
PROPRIETARY RIGHTS
You will not receive any object code or source code relating to the 3 Degrees and Software. 3 Degrees Limited, its licensors, and its Software providers own and reserve all rights, title, and interest in and to the ODOS Technology and Software, including all related intellectual property rights. Subject to the limited rights expressly granted to You, no rights are granted to You in the Software. 3 Degrees Limited acknowledges and agrees that it obtains no right, title or interest from You (or Your licensors) under these Terms in or to any Content that You create, submit, post, transmit or display on, or through, the Software, including all related intellectual property rights. You may not copy, modify, distribute, sell, or lease any part of our software.
The license we give you is:
worldwide, which means it’s valid anywhere in the world
non-exclusive, which means that we can license the software to others
royalty-free, which means there are no monetary fees for this license
personal, which means it doesn’t extend to anyone else
non-assignable, which means you’re not allowed to assign the license to anyone else
Exclusions
This Agreement shall not apply to any performance or availability issues:
Due to factors outside the Developer’s reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to the Developer’s data centre);
That result from the use of Software, hardware, or software not provided by the Developer, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or Software;
Caused by the Client’s use of a Software after the Developer had advised the Client to modify its use of the Software, if the Client did not do as advised.
Fees and Taxation
Your use of the Software will be subject to hosting and usage fees schedule applicable to your subscription. We reserve the right to change our subscription fees. You shall pay all fees associated with Your use of the Software in accordance with the billing policies. You shall provide us with accurate information, including, but not limited to, account permissions, billing, and other account information.
All fees are exclusive of all taxes, levies and duties.
You must provide us with a valid non-disposable email address. We may disable your access to the Software until payment is received. You agree to pay reasonable attorneys' fees and court costs incurred by Us to collect any unpaid amounts owed by You. Amounts paid for the Software are not refundable. Until Your Subscription to the Software is terminated, You acknowledge and understand that We will continue to charge You for the Software regardless of whether the Software are used or not until You notify us to cancel Your subscription. You must pay for an entire subscription for which you order regardless if you use all the Software you are entitled to or cancel your subscription during the Subscription Term.
Confidentiality
All non-public, proprietary and confidential information disclosed or received under this Agreement by one Party and its Affiliates to another Party and its Affiliates shall be confidential and shall be treated as such, unless a Party gives written consent wavering its claim to confidentiality in respect of particular information.
The confidentiality undertaking in clause 3.7.1 shall not apply in respect of confidential information within the public domain or a Party’s knowledge at the commencement of this Agreement or to disclosure required to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time.
The obligations of the parties in terms of this clause shall survive any termination of this agreement.
Force Majeure
No Party shall have any responsibility for late delivery or for failure to deliver due to any cause reasonably beyond their control, particularly in the case of Force Majeure, defined in clause 3.7.2 below.
“Force Majeure” means any and all acts or events which are neither controllable or predictable and therefore independent of the will of any Party or of its subcontractors, including but not limited to war, declared or not, acts of terrorism, riot, revolution, strikes or other industrial actions, machinery damage or breakdown, earthquake, tidal wave, volcano eruption, essential supply difficulties and irremediable non-performance by a third party.
General Terms
Cession. Neither party may delegate or assign any of their rights or obligations in terms of this agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
Relaxation. No indulgence, leniency, waiver or extension of a right which either of the Parties may have in terms of this Agreement, and which either Party may grant or show the other Party shall in any way prejudice the Party nor preclude the Party from exercising any of the rights that it has derived from this Agreement or be construed as a waiver by the Party of that right.
Severability. In the event that any of the terms of this Agreement are found to invalid, unlawful or unenforceable such terms shall be severable from the remaining terms, which will continue to be valid and enforceable.
Relationship between the Parties. Nothing contained in this Agreement shall be construed as creating a partnership between the Parties or as deeming either Party as an agent or representative of or employee of the other. Neither Party may act as the agent of the other Party or incur any liability on behalf of the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto and any other agreement, written or verbal, warranties or guarantees, promises, express or implied regarding the subject matter hereof shall be deemed void and excluded unless these have been made expressly part of this Agreement in writing by the Parties hereto.
Amendment. Either Party may amend this Agreement at any time through written request.
Amendments shall come into force only upon written consent of Parties through an exchange of letters or an addendum.