These Terms and Conditions (“Agreement”) apply between Custom Apps SA (Pty) Ltd, a company incorporated under the laws of the Republic of South Africa, with its principal place of business at 2 Ncondo Place, Umhlanga Ridge (“the Company”), and any customer or client of the Company that accepts any quote from the Company or instructs the Company to attend to any development, amendment or enhancement of any software whatsoever (“the Customer”). The Company and the Customer shall be collectively referred to as the “Parties”.
Definitions
| Term | Definition |
|---|---|
| Software | Refers to the code, applications, and other materials developed by the Company for the Customer in terms of any agreement reached, quote accepted or instruction given. |
| Intellectual Property Rights | Refers to all patents, copyrights, trademarks, trade secrets, and any other form of intellectual property rights recognised in any jurisdiction, whether registered or not. |
| License Fee | Refers to the fee payable by the Customer for the right to use the Software. |
| Due Date | Refers to the date by which the Customer is required to make payment as specified on the invoice. |
| Late Payment Interest | Refers to the interest that is to accrue on any late payments, as stipulated in Clause 5. |
| Services | Refers to any software development services provided by the Company. |
| Development Fees | Refers to the fees charged by the Company for the development, amendment or enhancement of any Software. |
| Scoping Fees | Refers to the fees charged by the Company for initial assessment and scoping of the Software project requirements. |
| Testing Fees | Refers to the fees charged by the Company for testing the Software to ensure it meets specifications and quality standards. |
Terms and Conditions
- Intellectual Property Rights a. The Customer acknowledges that all Intellectual Property Rights in and to the Software developed, amended or enhanced under this Agreement shall remain the exclusive property of the Company.
- License and Fees a. The Customer shall be required to pay a License Fee, Development Fees, Scoping Fees, and Testing Fees for the development, amendment or enhancement of the Software, as well as for the use thereof. The fees shall be agreed upon before any development, amendment or enhancement commences. b. The Company does not grant any exclusive or perpetual licenses for free. The Customer must pay the agreed-upon License Fee for the continued use of the Software.
- Resale and Reuse a. The Company reserves the right to use, sell, license, or otherwise exploit the Software in any manner it deems appropriate, without any obligation or liability to the Customer.
- Payment and Termination a. If the Customer fails to make payment by the Due Date, the Company reserves the right to suspend or terminate the Customer’s access to and use of the Software on 10 (ten) days’ notice. b. The Company may, at its sole discretion, disable the Software without notice if the Customer fails to make payment after the notice has been given.
- Late Payment a. If the Customer fails to make any payment within three (3) days of the Due Date, Late Payment Interest of two percent (2%) per month will be levied on the outstanding amount, calculated daily and compounded monthly. The Customer shall be responsible for the payment of the accrued interest in addition to the outstanding principal amount.
- Limitation of Liability a. The Company shall not be liable for any loss of profits, loss of data, or any indirect, special, incidental, consequential, or punitive damages arising out of or in connection with this Agreement or the use or inability to use the Services, even if the Company has been advised of the possibility of such damages. b. The Customer acknowledges that the Company is not responsible for any losses or damages that may arise from the Customer’s use or inability to use the Services.
- Indemnification a. The Customer indemnifies and holds the Company, its directors, officers, employees, and agents harmless from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising out of or related to the Customer’s use of the Software.
- Non-Solicitation a. The Customer agrees not to solicit, hire, or engage, directly or indirectly, with any employee, consultant, or contractor of the Company during the term of this Agreement and for a period of twenty-four (24) months following the termination or expiration thereof.
- Governing Law and Jurisdiction a. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa. b. The Parties agree that any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of the Republic of South Africa.
- Entire Agreement and Supersession a. This Agreement and any quote given constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior understandings, agreements, terms, and conditions, whether written or oral. b. This Agreement supersedes any and all previous agreements, terms, and conditions between the Parties, whether oral or written, regarding the subject matter herein or in any quote.
- Amendment a. This Agreement may only be amended or modified in writing and signed by duly authorised representatives of both Parties.
- Severability a. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
Acceptance
By accepting a quote, instructing the Company or paying the invoice, the Customer acknowledges that they have read, understood, and agree to be bound by the terms and conditions contained in this Agreement.