1.1 “Documentation(s)” shall mean all Service related documentation included in the Software package, accompanied to the Equipment and/or placed on Opencharge’s website.
1.2 “Equipment” shall mean all Service hardware equipment may be provided to you by us and/or any third-party reseller of ours, pursuant to separate applicable purchase order(s), executed between the parties.
1.3 “Intellectual Property Rights” shall mean any and all worldwide, whether registered or not
- (a) patents, patent applications and patent rights;
- (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations;
- (c) rights relating to the protection of trade secrets and confidential information;
- (d) trademarks, trade names, service marks, logos, trade dress, goodwill and domains (“Trademarks”);
- (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and
- (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.4 “Service” shall mean Opencharge’s proprietary system and technology for charging mobile devices using wireless charging spots deployed in your venue; based on installation, implementation and use of applicable Opencharge purchased Equipment; all as further described in the Documentation.
1.5 “Software” shall mean
- (i) the Opencharge proprietary software as a service (SaaS), or other proprietary components based on Opencharge’s software
- (ii) any software that is delivered to you by us or is provided with the Equipment.
1.6 “Software Modification(s)” shall mean all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades made by or for Opencharge to the Software.
Notwithstanding any other provision to the contrary, all Confidential Information, Trademarks Software, Software Modification and the Documentation, including all derivatives thereof and all Intellectual Property Rights thereto (collectively “Opencharge IPR”) are exclusively owned by Opencharge and/or its licensors. This Agreement does not convey to you any right, title or interest in the Opencharge IPR, other than the revocable and limited license as set forth in Section 4 below.
3. Confidential Information
The Service may contain valuable trade secrets of Opencharge and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Opencharge. you expressly undertake to retain in confidence and to require its employees to retain in confidence all non-public information and know-how in respect of the Service that are transferred to, or discovered by you (“Confidential Information”). You expressly undertakes to
- (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Opencharge IPR and Confidential Information than the terms hereof;
- (ii) not disclose the Confidential Information to any third party; and
- (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein.
4. Grant of Rights
Subject to the terms and conditions of this Agreement and for so long as you complies in full with all such terms and conditions, we grants you, and you accepts a limited, non-exclusive, fee-bearing, non-transferable, non-sublicensable right to use the Software, in the mode elected pursuant to separate purchase order(s) executed between you and us (or our reseller) for that purpose (“Software PO”), solely in object code form, and solely during the term set forth in the applicable Software PO(s) (and also to use under the same terms any Software Modification(s) and/or Documentation that we may provide to you from time to time, at our sole discretion; all for internal and/or personal use as part of the Service. The license shall be granted until terminated pursuant to this Agreement.
5. Obligations and Limitations on Use
5.1. You shall not
- (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Service or any part thereof;
- (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Service with or into any third party materials or components or attempt to access or discover the Software’s source code;
- (iii) ship, transfer, or export the Service or any component thereof or use the Service in any manner, prohibited by law;
- (iv) use the Software that is installed on or embedded or included in any Equipment on any server or equipment other than the Equipment as delivered by us;
- (v) remove or add any labels, notices or logos to the Service,
- (vi) perform any act or be responsible to any omission that is illegal or in Opencharge’s discretion jeopardizes, destabilizes, interrupts or encumbers the Service or their servers and/or has a detrimental impact on Opencharge and/or Opencharge IPR; or
- (vii) cause or permit any third party to do any of the foregoing.
5.2. You are solely responsible for acquiring and maintaining all of the Equipment, software and services necessary to access and make use of the Service, including without limitation paying all fees and other costs related to internet access. You shall use the Service in a proper environment as set forth in the Documentation and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Documentation.
6. Registration to Service
You acknowledge that certain parts of the Service may be subject to registration under a process that will require you to provide information regarding (but not limited to) you, your organization and/or the certain employees of your organization designated by the organization as having the need to use the Service on the behalf of the organization, and received permitting key from Opencharge (up to the number of such keys allowed pursuant to the applicable Software PO) (collectively “Permitted Users”). Any such permitting key and/or other log-in information shall be kept by you in strict confidence. By performing the registration, you represent and warrant that all registration information you submit is accurate and truthful and that you agree to update and maintain the accuracy of such information; that all use of the Service under your registered account shall be under your responsibility and you shall ensure compliance of the Permitted Users to the terms of this Agreement and remain liable to any breach of this Agreement by any of the Permitted Users.
8. Warranty; Disclaimer of Warranty
We warrant that the Software as delivered shall substantially conform under use in accordance with this Agreement, and solely during a paid subscription period, to Opencharge’s then-current Documentation in all material respects. Opencharge’s exclusive obligations with respect to a breach of the foregoing warranty shall be, at Opencharge’s option, to either render the applicable portion of the Software compliant, or to terminate this Agreement and refund you the amounts paid for any unused subscription period. It is clarified that the warranty in any Terms of Sale does not cover Software, and that the warranty hereunder is the sole warranty provided by us with respect to the Software. ASIDE FROM THE FOREGOING WARRANTY, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMTIATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY, NON-INFRINGEMENT, AND/OR ERROR OR INTERUPTION FREE USE.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND WITHOUT DEROGATING FROM OTHER LIMITATIONS OF OPENCHARGE’S LIABILITY UNDER ANY OTHER AGREEMENT BETWEEN YOU AND OPENCHARGE
- (A) OPENCHARGE’S LIABILITY (INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES OR EXPENSES) FOR ALL CLAIMS IN THE AGGREGATE ARRISING FROM OR CONNECTED TO THIS AGREEMENT, SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY YOU FOR THE SOFTWARE; AND
- (B) OPENCHARGE SHALL NOT BE LIABLE HEREUNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLERY OR PUNITIVE DAMAGES OF ANY NATURE. IT IS CLARIFIED THAT THIS AGREEMENT GOVERNS THE SOFTWARE
You agree to defend, indemnify and hold harmless Opencharge and anyone on its behalf, including but not limited to, all of its shareholders, managers, directors, officers, affiliates and employees, against any losses, expenses, costs, claims, damages (including reasonable attorney fees, expert fees and other reasonable costs of litigation) arising from:
- (i) any unauthorized and/or illegal use of the Service;
- (ii) any breach of privacy protection laws with respect to End-User Content;
- (iii) any claim on your conduct with end users.
We may terminate this Agreement by notice to you:
- (i) upon your failure to comply with any of your obligations hereunder;
- (ii) immediately and without notice in the following events: (a) failure by you to pay any of the applicable fees; or (c) violation of any of the limitations set forth in Section 5.1 above. Upon termination or expiration of this Agreement: (i) you shall immediately pay us all fees and payments, regardless of the due date of payment, and (ii) the license granted to you in this Agreement shall expire and you shall cease use of the Service and immediately return to us all leased Equipment, if any, Confidential Information and Opencharge IPR in any media and shall erase all copies of the Software or contain any of the foregoing. Notwithstanding the termination or expiration of this Agreement, Sections 1-3, and 7-13 shall survive and remain in effect in perpetuity.
12. Governing Law
This Agreement shall be governed and construed according to the laws of the Republic of South Africa and the Parties agree to submit to the non-exclusive jurisdiction of the Western Cape High Court of South Africa, Cape Town to adjudicate disputes which may arise in connection with this Agreement.
- (i) The Agreement and its Schedules are the entire agreement between you and us in respect of the subject matter herein and this Agreement shall not be modified except as provided herein;
- (ii) we may assign this Agreement, in whole or in part, in its sole discretion. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement to any third party without the prior written consent of us. Any unauthorized assignment will be void and of no force or effect;
- (iii) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than you and us, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the Agreement;
- (iv) no failure or delay on the part of Opencharge or its reseller in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by Opencharge and/or its reseller must be explicit and in writing and shall be valid only in the specific instance in which given.