LICENSE AGREEMENT


DATED


ENTERED INTO BETWEEN


Pin Stripe Advertising Pty (LTD), a company under the laws of the Republic of South Africa with registration number 2015/160496/07 (the Licensor)

AND

The Social Collective, as more fully described in Schedule A hereto (the Licensee)

WHEREAS:

  1. The Licensor provides a cloud and mobile based framework and database solution which provides a platform, framework, communication gateway and reporting monitoring and evaluation (M&E) tool for use by companies and organisations which manage civil engagements and support youth development programmes (the Licensor’s Software or The Social Collective).

  2. The Licensor’s Software helps organisations collect, store, manage and report on social impact data in order to build richer databases by tracking the soft skills development of and time spent by beneficiaries, volunteers, facilitators and programme managers in relation to various development programmes together with reporting requirements to partners, funders and corporate partners of such development programmes.

  3. The Licensee wishes to obtain a license to use the Licensor’s Software in the conduct of the Licensee’s development programme, as more fully described in Schedule A hereto.

  4. The Licensor and the Licensee believe it is in their mutual interest and desire to enter into an agreement whereby the Licensee is entitled to use the Licensor's Software accessible online via the indicated domain, tracking engagements pursuant to the terms and conditions hereinafter provided.

  5. This License Agreement governs the access to and use by the Licensee of the Licensor’s Software and the services provided to the Licensee by the Licensor pursuant to such access and use (together, the Services).

NOW, THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, the parties hereto agree as follows.

    1. Definitions

      1. Account Data means any and all account and contact information submitted to the Services by the Licensee or End Users;

      2. Additional Associated Fees has the meaning ascribed to it in clause 9.7;

      3. Additional Implementation Fee has the meaning ascribed to it in clause 9.8;

      4. Additional Training and Certification Fee has the meaning ascribed to it in clause 7.3;

      5. Administrative Console means the intangible area of The Social Collective which enables Administrators to perform the functions described in clause 1.1.6;

      6. Administrators means any persons granted access to the Administrative Console of The Social Collective by the Licensee and/or the Licensor, which persons may have the ability to:

        1. access, disclose, restrict or remove Licensee Data in or from Services Accounts; and

        2. monitor, restrict, or terminate access to Services Accounts;

      7. Agreement or License Agreement means this license agreement and includes its Schedules and Annexures which shall form part of it;

      8. Applicable Laws means, in relation to a Party, in respect of any applicable jurisdiction, all and any of the following: (i) statutes, subordinated legislation and common law; (ii) regulations; (iii) ordinances and by-laws; (iv) directives, judgements and decisions of any competent authority, or any governmental, inter-governmental or supranational agency, body, department or regulatory, self-regulatory or other authority or organisation; and (v) other similar provisions from time to time, compliance with which is mandatory for that Party;

      9. Business Day means any day which is not a Saturday, Sunday or statutory holiday in the Republic of South Africa;

      10. Delivery Schedule has the meaning ascribed to it in clause 7.1;

      11. End User means the users of the Licensee’s Account including, but not limited to, beneficiaries, volunteers, facilitators, programme managers, partners, funders and corporate partners;

      12. Fee Payment Schedule has the meaning ascribed to it in clause 9.6;

      13. Implementation Fee means the once-off fee payable by the Licensee to the Licensor in respect of the technical set-up of the Licensor’s Software for use by the Licensee, payable upon commencement of such technical set-up, the monetary amount of which is set out in Schedule A;

      14. Intellectual Property Rights means any current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights;

      15. IP means intellectual property;

      16. License means the non-exclusive license to use the Licensor’s Software granted to the Licensee by the Licensor on the terms and subject to the conditions contained in this Agreement;

      17. Licensee has the meaning given to it in the preamble to this Agreement;

      18. Licensee Account means the account of the Licensee as registered on The Social Collective in accordance with the registration policies and procedures of the Licensor;

      19. Licensee Data means the Account Data and the Stored Data;

      20. License Fees means the total of the Implementation Fee and the Monthly Fee;

      21. Licensor has the meaning given to it in the preamble to this Agreement;

      22. Licensor API means the Licensor’s application program interface, being a set of routines, protocols, and tools for building software applications;

      23. Monthly Fee means the monthly fee payable by the Licensee to the Licensor upon receipt of an invoice from the Licensor in respect of the provision by the Licensor of the Services, the monetary amount of which is set out in Schedule A;

      24. Parties means each of the Licensor and the Licensee, and Party shall mean either of them as the context may require;

      25. Rand or R means South African Rand, the lawful currency of the Republic of South Africa;

      26. Reverse Engineer means the process of extracting knowledge or design information from the Licensor’s Software and/or the Services by disassembling and/or analysing the Licensor’s Software in detail in order to discover the concepts involved in manufacture or development with a view to re-producing the Licensor’s Software and/or reproducing anything based on such information extracted from the Licensor’s Software or the Services.

      27. Security Emergency means:

        1. use of the Services that do or could disrupt the Services, other licensees’ use of the Services, or the infrastructure used to provide the Services; and

        2. unauthorised third-party access to the Services.

      28. Services has the meaning given to it in the preamble to this Agreement;

      29. SSL means secure sockets layer, the standard security technology for establishing an encrypted link between a web server and a browser which link ensures that all data passed between the web server and browsers remains private and integral;

      30. Stored Data means any and all file and structured data submitted through the Services by the Licensee or End Users and which is stored in the cloud by The Social Collective in accordance with the Licensor’s storage policies and procedures;

      31. System Specifications means the technical specifications and implementations described in the technical overview prepared by the Licensor and which will be delivered to the Licensee;

      32. Term means the term of this Agreement, determined in accordance with clause 10.1 (Term) and paragraph 9 (Duration of Agreement) of Schedule A;

      33. Terms and Conditions of Use means the terms and conditions of use as published by the Licensor on the Licensor’s website, as amended and supplemented from time-to-time;

      34. Third Party Request means a request received from a third party for records relating to an End User's use of the Services including information in or from an End User or the Licensee’s Account. Third Party Requests may include search warrants, court orders, subpoenas, or any other request for which there is written consent from the End Users permitting a disclosure of the use of the Services;

      35. UNCITRAL means the United Nations Commission on International Trade Law;

      36. Unauthorised Use means use of the Licensor’s Software which is contrary to the provisions of:

        1. this Agreement;

        2. any Applicable Laws; and/or

        3. the Terms and Conditions of Use;

      37. User Data means any data related to the End Users which is collected by the Licensee through the Services.

    2. Interpretation

      In addition to the definitions in clause 1.1, unless the context requires otherwise:

      1. the singular shall include the plural and vice versa;

      2. a reference to any one gender, whether masculine, feminine or neuter, includes the other two;

      3. any reference to a natural person includes an artificial person and vice versa;

      4. any word or expression defined in and for the purposes of this Agreement shall if expressed in the singular include the plural and vice versa and a cognate word or expression shall have a corresponding meaning;

      5. references to a statutory provision include any subordinate legislation made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Agreement or any transaction entered into in accordance with this Agreement;

      6. references in this Agreement to clauses, sub-clauses, Annexures and Schedules are to clauses and sub-clauses of, and annexures and schedules to, this Agreement;

      7. no rule of construction shall be applied to the disadvantage of a Party to this Agreement because that Party was responsible for or participated in the preparation of this Agreement or any part of it;

      8. unless otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day; and

      9. all the headings and subheadings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpreting it.

  1. License

    1. The Licensor hereby grants to the Licensee, for the term of this Agreement, a non-exclusive License to use the Licensor’s Software in connection with the Licensee’s business, which business includes the tracking of and reporting on engagements, connections, development, outcomes, learning, employability and a database of personal information, which information may be deemed sensitive, through the Services.

    2. The License contemplated by this License Agreement is expressly limited to the Licensee’s use of the Licensor’s Software in accordance with this Agreement.

    3. No right or license is being conveyed to the Licensee to use the Licensor’s Software other than as specifically contemplated in this Agreement and the Licensee is prohibited from using the Licensor’s Software in any manner other than on the terms and subject to the conditions contained in this Agreement.

  2. The Licensee’s Obligations

    1. Compliance

      1. The Licensee is responsible for use of the Services by its End Users and will ensure that both the Licensee and its End Users will use the Services in compliance with the Terms and Conditions of Use.

      2. The Licensee will obtain from the End Users any consents necessary in order to enable the Administrators to engage in the activities described in this Agreement, and any activities incidental thereto, and to allow the Licensor to provide the Services.

      3. The Licensee will comply with all laws and/or regulations applicable to the Licensee’s use of the Services, if any.

    2. Licensee administration of the Services

      1. The Licensee may specify End Users as Administrators through the Administrative Console.

      2. The Licensee is responsible for:

        1. maintaining the confidentiality of passwords and Administrator accounts;

        2. managing access to Administrator accounts; and

        3. ensuring that Administrators' use of the Services complies with this Agreement.

      3. The Licensee is responsible for the internal management or administration of the Services during the Term of this Agreement.

    3. Unauthorised Use & Access

      1. The Licensee will use its best endeavours to prevent any Unauthorised Use of the Services by the End Users.

      2. The Services are not intended for End Users under the age of 13 (thirteen). the Licensee will ensure that it and its Administrators do not allow any person under the age of 13 (thirteen) to use the Services.

      3. In the event that the Licensee becomes aware of any Unauthorised Use of or unauthorised access to The Social Collective by the End Users or any other person, the Licensee shall promptly notify the Licensor of such Unauthorised Use of or unauthorised access to the Services and immediately terminate such Unauthorised Use of or unauthorised access to the Services.

    4. Restricted Uses

      The Licensee will not

      1. sell, resell, or lease the Services;

      2. use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or

      3. Reverse Engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by Applicable Laws.

  3. Intellectual Property

    1. The core framework, implementation and IP subsisting in the Licensor’s Software remains the property of the Licensor.

    2. User Data, measurement M&E specifics and reports will remain the property of The Licensee for the duration of this Agreement. Applied IP will be shared according to Schedule B

    3. The Licensor shall be entitled to access any and all User Data obtained through the provision of the Services to the Licensee, provided that the Licensor shall only be entitled to use such data for analytical purposes and shall ensure that all data relating to the Licensee and the End Users remains anonymous. The Licensor requires explicit written consent for access to this data

    4. The information shared in the System Specifications is deemed confidential and is to remain the property of each of the Parties.

    5. The Parties hereby agree not to disclose any information whatsoever to any person relating to this Licensing Agreement or the IP, technology and associated data of both Parties.

  4. Intellectual Property Rights

    1. Reservation of Rights

      Except as expressly set forth herein, this Agreement does not grant:

      1. the Licensor any Intellectual Property Rights whatsoever in the Licensee Data; or

      2. the Licensee any Intellectual Property Rights in the Services or the Licensor brand or any features thereof.

    2. Except as provided for in clause 4.3, the Licensor may be entitled to share Licensee Data collected as a result of the Licensee’s use of the Services with any third parties without prior written consent of the Licensee.

    3. Limited Permission

      The Licensee grants the Licensor only the limited rights that are reasonably necessary for the Licensor to offer the Services to the Licensee (by way of example, but without limiting the generality of the aforegoing, hosting Stored Data) (the Permission). The Permission extends to trusted third parties that the Licensor works with in order to provide the Services (by way of example, but without limiting the generality of the aforegoing, sms, email, payment gateways and partner gateways or services).

    4. Suggestions

      The Licensor may, at its discretion and for any purpose, use, modify, and incorporate into its products and Services, license and sublicense, any feedback, comments, or suggestions that the Licensee or End Users send to the Licensor without any obligation to the Licensee.

    5. Customer List

      Notwithstanding the provisions of clauses 4.5 and 11 (Confidentiality), the Licensor shall require written consent from the Licensee  to include the Licensee's name in a publicly available list of the Licensor’s customers, that may appear on inter alia the Licensor’s website or promotional materials.

  5. Services

    1. Use of the Services

      The Licensee and users of the Licensee’s account (the "End Users") may access and use the Services only in accordance with this Agreement.

    2. Facilities and Data Processing

      1. The Licensor will use, at a minimum, industry standard technical and organisational security measures to transfer, store, and process the Licensee Data. These measures are designed to protect the integrity of the Licensee Data and guard against the Unauthorised Use or unauthorised access to, and processing of the Licensee Data.

      2. The Licensee agrees that the Licensor may transfer, store, and process the Licensee Data in locations other than the Licensee’s country. This may be done only with written consent from the Licensee

      3. The Licensor hereby certifies that it adheres to SSL (https) and the principles associated therewith.

    3. Modifications to the Services

      The Licensor may update the Services from time to time. If the Licensor modifies the Services in a manner that materially reduces their functionality, the Licensor will inform the Licensee of such modifications via the email address associated with the Licensee’s account on The Social Collective and may, in the Licensor’s sole discretion, offer the Licensee pro rata License Fees. The Licensee may have the right to terminate or renegotiate the agreement, if the reduced functionality is proven to reduce programmatic outcomes and no agreement can be reached after considering various options.

  6. Implementation, Training and Acceptance

    1. The Licensor shall implement the Services on a subdomain or custom domain of the Licensee in accordance with the Delivery Schedule recited in Schedule A attached hereto. At the time of such implementation, the Licensor shall provide the Licensee with appropriate documentation for the Services (in a form reasonably acceptable to the Licensee) and the relevant training manuals available online.

    2. At the time of implementation of the Services and for no additional consideration, the Licensor shall train at least 2 (two) employees of the Licensee in the use of the Services online.

    3. Subsequent to the implementation of the Licensor’s Software, the Licensor agrees to provide additional training to the Licensee's employees for an additional training and certification fee, as more fully described in Schedule A (the Additional Training and Certification Fee).

    4. In the event that the Licensee fails to notify the Licensor of any difficulties or problems with the Services within 30 (thirty) days after installation thereof, the Licensee shall be deemed to have accepted the Services as provided. Prior to acceptance of such Services, the Licensor shall have the right to repair or replace the Services at its discretion. Upon acceptance of such Services, the Licensor shall be under no obligation to repair or replace the Services except as provided for in clause 12 (Warranties).

  7. Support

    The Licensor will offer technical and training support for the term. Such technical training and support shall be limited to an agreed upon amount of time as detailed in Schedule A. In addition to the above:

      1. Technical support covers access and ‘up-time’ of the system, related to servers, and having access to the database through the domain cited in the schedule. Support queries will need to be emailed to hello@thesocialcollective.co and shall be responded to by the Licensor within 24 hours if such support query is received on a Business Day. Should such support query be received on a day which is not a Business Day, the support query shall be responded to within 24 hours from the commencement of the first Business Day following receipt of such support query (it being recorded that for the purposes of this clause 8.1.1, a Business Day will be deemed to have commenced at 08h00 on that day).

      2. Training support and materials will be provided, digitally, to the Licensee for distribution to End Users and Administrators internally.

      3. Training will be provided to ensure that the Licensee can manage the platform and its functions as an Administrator independently from the Licensor. The Licensor shall provide all necessary training materials to any other employees of the Licensee, which have not received training in terms of clause 7.2, and a certified assessment is available for such employees should the Licensee so require. The information relating to such certified assessment and the fees associated therewith is more fully described in Schedule A. The implementation of such certified assessment shall be agreed to in writing by the Parties.

  8. Fees and Payment

    1. General

      Fees are non-refundable except as required by Applicable Laws. The Licensor may suspend or terminate the Services if any fees are not at the time when they fall due in terms of paragraph 12 (Fee Payment Schedule) of Schedule A.

    2. Taxes

      1. The Licensee is responsible for all taxes which may be levied in relation to the Services provided to the Licensee in terms of this Agreement. The Licensor will charge tax when required to do so.

      2. If the Licensee is required by Applicable Laws to withhold any taxes, the Licensee must provide the Licensor with an official tax receipt or other appropriate documentation.

    3. Customisation fees

      1. Customisation of and additional support in respect of the Licensor’s Software, outside of the scope of the Services, which may be requested by the Licensee shall be agreed upon by both Parties in writing.

      2. Any customisation and/or additional support outside the scope of the Services required by the Licensee shall be invoiced and paid for separately in addition to the fee for the Services.

      3. Any additional customisation required by the Licensee shall be agreed to in writing by the Parties and billed separately from the License Fees and shall be invoiced by the Licensor on commencement of the implementation of such customisation.  

      4. With the exception of the limited customisation provided for in Schedule A, any other customisation requested by the Licensee in terms of clause 9.3.3, shall be billed by the Licensor at R650,00 (six hundred and fifty Rand) per hour.

    4. Fees

      1. The Implementation Fee is payable upon commencement of the technical set up of the Services by the Licensor for the Licensee.  

      2. The Licensee shall pay the Monthly Fee upon receipt of an invoice issued by the Licensor to the Licensee, but in no event later than the last Business Day of each calendar month.

    5. Revenue Share Model

      The Licensee may work with the Licensor in implementing the solution to unlock revenue generating opportunities, with referrals to partners, funders, usage of co-developed IP and data in which case, the Parties hereby agree to enter into a partnership document to cover the details of such partnership, substantially on the terms set out in Schedule B.

    6. In consideration for the licenses granted hereunder and during the Initial Term and for each Extended Term, the Licensee agrees to pay to the Licensor the License Fee in accordance with the fee payment schedule, as more fully described in Schedule A (the Fee Payment Schedule).

    7. In the event that Licensee should require any additional features, support and/or consultancy, the Licensee agrees to pay the Licensor additional associated fees for such additional services, more fully described in Schedule A (the Additional Associated Fees)  prorated accordingly.

    8. At the time of implementation of the Services, the Licensee agrees to pay to the Licensor the Implementation Fee. In the event that any additional instances, features, products and/or services are required, the Licensee agrees to pay to the Licensor and additional implementation fee, determined in accordance with Schedule A (the Additional Implementation Fee), prior to such additional implementation and as agreed in writing between the Parties.

  9. Term & Termination

    1. Term

      This Agreement will remain in effect until the Licensee’s subscription, as more fully described in paragraph 10 (Duration of Agreement) Schedule A, to the Services expires or terminates, or until the Agreement is terminated in accordance with its terms.

    2. Termination for Breach

      Either the Licensor or the Licensee may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 (thirty) days after receipt of written notice to do so or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days of institution thereof.

    3. Effects of Termination

      If this Agreement terminates for any reason whatsoever:

      1. the rights granted by the Licensor to the Licensee will cease immediately (except as set forth in this section);

      2. the Licensor may provide the Licensee access to its account at then-current fees so that the Licensee may create copies of its Stored Data; and

      3. after 30 (thirty) Business Days, the Licensor shall be entitled to delete any and all Stored Data relating to the Licensee's account.

    4. The following clause will survive the expiration or termination of this Agreement: 5 (Intellectual Property Rights), 9 (Fees & Payment), 10.3 (Effects of Termination), 11 (Confidentiality), 14 (Indemnities), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Disputes), 24 (Third Party Requests), and 27 (Miscellaneous).

    5. This Agreement shall be renewable under review of the terms and developments and as agreed between the Parties in writing.

  10. Confidentiality

    1. The Licensee recognises that the Services are the proprietary and confidential property of the Licensor and accordingly, the Licensee shall not, without the prior express written consent of the Licensor, during the term of this Agreement and for 1 (one) year thereafter, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any Services provided by the Licensor concerning the Products, provided that such information was not previously known to the Licensee or to the general public.

    2. The Licensee further agrees to take all reasonable precautions to preserve the confidentiality of the Licensor's Services and shall assume the responsibility that its employees, sublicensees, and assignees will similarly preserve this information against third parties.

    3. The Licensee shall take no steps in attempting to Reverse Engineer the Service.

  11. Warranties

    1. The Licensor represents and warrants that it has no actual knowledge that the Licensor’s Software infringes any valid rights of any third party.

    2. The Licensor warrants that the Services will perform in accordance with the System Specifications provided by the Licensor to the Licensee, a copy of which will be provided to the Licensee. This warranty is given in lieu of all other warranties, express or implied, that may arise either by agreement between the Parties or by operation of law, including the warranty of merchantability or fitness for a particular purpose.

    3. In the event of a claim by the Licensee under this warranty, the Licensor shall have the option to either repair or replace the Licensor’s Software. In the event that the Licensor fails to repair or replace the Licensor’s Software within a reasonable period, the Licensee's sole recourse shall be to terminate this Agreement and the Licensor's sole obligation shall be to return any License Fees paid by the Licensee during the term of this Agreement. Provided that the amount of License Fees which shall be repaid in terms of this clause 12.3 shall be calculated from the date on which the Licensor received and confirmed receipt of a support query, as detailed in clause 8.1.1 (Support). In no event shall the Licensor be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of this Agreement.

  12. Improvements

    Any improvements or modifications made by the Licensor to the Licensor’s Software shall be promptly provided to the Licensee and shall be automatically included in the Services for the purposes of this Agreement and the rights licensed to the Licensee hereunder.

  13. Indemnity

    1. By the Licensee

      The Licensee hereby indemnifies, defends, and holds harmless the Licensor from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Licensor and any of its affiliates regarding:

      1. the Licensee Data;

      2. the Licensee’s use of the Services in violation of this Agreement; or

      3. End Users' use of the Services in violation of this Agreement.

    2. By the Licensor

      1. The Licensor hereby indemnifies, defends, and holds harmless the Licensee from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Licensee to the extent based on an allegation that the Licensor's technology used to provide the Services to the Licensee infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party.

      2. In no event will the Licensor have any obligations or liability under this section arising from:

        1. the use of any Services in a modified form or in combination with materials not furnished by the Licensor; and

        2. any content, information, or data provided by the Licensee, End Users, or other third parties.

    3. Possible Infringement

      1. If the Licensor believes that the Services infringe or may be alleged to infringe a third party's Intellectual Property Rights, then the Licensor may:

        1. obtain the right for the Licensee, at the Licensor’s expense, to continue using the Services;

        2. provide a non-infringing functionally equivalent replacement; or

        3. modify the Services so that they no longer infringe, in the Licensor’s sole discretion,

      2. provided that if the Licensor fails to procure such alternative mentioned in clause 14.3.1, the Licensee shall be entitled to cancel this Agreement by giving the Licensor 30 (thirty) Business Days’ notice.

      3. If the Licensor does not believe the options described in clause 14.3.1 are commercially reasonable then the Licensor may suspend or terminate the Licensee's use of the affected Services (with a pro-rata refund of the License Fees for the Services).

    4. General

      1. The Party seeking indemnification (the Indemnified Party) will promptly notify the other Party (the Indemnifying Party) of the claim and cooperate with the Indemnifying Party in defending the claim. The Indemnifying Party will have full control and authority over the defence, except that:

        1. any settlement requiring the Indemnified Party to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and

        2. the Indemnified Party may join in the defence with its own counsel and at its own expense.

      2. The indemnities given in terms of this clause 14 are the Licensor and the Licensee’s only remedy under this agreement for violation by the other party of a third party's Intellectual Property Rights.

  14. Disclaimers

    1. The Services are provided "voetstoots", to the fullest extent permitted by Applicable Laws, except as expressly stated in this agreement and neither the Licensee nor the Licensor and its affiliates, suppliers, and distributors make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement.

    2. The licensee and the licensor shall be responsible for maintaining and backing up any stored data.

  15. Limitation of Liability

    1. Limitation on Indirect Liability

      To the fullest extent permitted by Applicable Laws, except for the Licensors or Licensees’ indemnification obligations, neither the Licensee nor the Licensor and its affiliates, suppliers, and distributors will be liable under this agreement for:

      1. indirect, special, incidental, consequential, exemplary, or punitive damages, or

      2. loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.

    2. Limitation on Amount of Liability

      To the fullest extent permitted by Applicable Laws, the Licensor’s aggregate liability under this agreement will not exceed the lesser of R10,000 (ten thousand Rand) or the amount paid by the Licensee to the Licensor hereunder during the 12 (twelve) months prior to the event giving rise to liability.

  16. Disputes

    1. Informal Resolution

      The Parties hereby agree that should any dispute arise in relation to this Agreement, they shall first endeavour to resolve the dispute by contacting the other Party through the notice procedures in clause 18 (Notices). If such dispute is not resolved within 30 (thirty) days of receipt of written notice initiating the informal resolution procedure in terms of this clause 17.1, the Licensee or the Licensor may proceed to resolve the dispute in terms of clause 17.2.

    2. Arbitration

      1. The Licensee and the Licensor agree that, failing resolution of a dispute in terms of clause 17.1, the dispute shall be settled by arbitration.

      2. The Parties may agree on the arbitration procedure and the arbitrator and failing such agreement within 5 (five) days of the exhaustion of the period referred to in clause 17.1, the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules then in force.

      3. Nothing in this clause 17 shall preclude any Party from seeking interim and/or urgent relief from a Court of competent jurisdiction

    3. No class actions

      The Licensee may only resolve disputes with the Licensor on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

  17. Notices

    1. The Parties for the purposes of this Agreement the following addresses, e-mail addresses and, for the purpose of any notices, designated officers:

      1. The Licensor

        Physical address: 68B Wale Street, Cape Town, 8001

        e-mail address: hello@thesocialcollective.co

      2. The Licensee

        As set out in paragraph 1 (Licensee Details) of Schedule A

    2. Any notice required to be given pursuant to this Agreement shall be emailed, return receipt requested.

    3. Notwithstanding anything to the contrary in this clause 18, a written notice or other communication actually received by any of the Parties (and for which written receipt has been obtained) shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.

    4. Any Party may by written notice to the other Parties change its physical or postal address or telefax number for the purposes of clause 18.1 to any other physical or postal address or telefax number provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice.

  18. Jurisdiction and Disputes

    1. This Agreement shall be governed by the laws of South Africa

    2. All disputes hereunder shall be resolved in the applicable courts of South Africa. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defences otherwise available.

  19. Agreement Binding on Successors

    1. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto, and their heirs, administrators, successors, and assigns.

  20. Waiver

    1. A waiver of any one default is not a waiver of any subsequent default.

    2. No waiver by either Party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.

  21. Severability

    1. Should any clause of this Agreement be found to be unenforceable, such clause will be modified to reflect the Parties' intention and only to the extent necessary to make such clause enforceable, and the remaining clauses of this Agreement will remain in full force and effect.

    2. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.

  22. Assignability

    1. The Licensee may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of the Licensor. The Licensor may not assign this Agreement without providing notice to the Licensee, except the Licensor may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

    2. The License granted hereunder is personal to the Licensee and may not be assigned by any act of the Licensee or by operation of law unless in connection with a transfer of substantially all the assets of the Licensee or with the prior written consent of the Licensor.

  23. Third Party Requests

    1. The Licensee is responsible for responding to Third Party Requests via its own access to information. The Licensee will seek to obtain information required to respond to Third Party Requests and will contact the Licensor only if it cannot obtain such information despite diligent efforts.

    2. The Licensee will make commercially reasonable efforts, to the extent allowed by Applicable Laws and by the terms of the Third Party Request, to:

      1. promptly notify the Licensee of the Licensor’s receipt of a Third Party Request;

      2. comply with the Licensee’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and

      3. provide the Licensee with information or tools required for the Licensee to respond to the Third Party Request (if the Licensee is otherwise unable to obtain the information). If the Licensee fails to promptly respond to any Third Party Request, then the Licensor may, but will not be obligated to do so.

  24. Third-Party Services

    If the Licensee uses any third-party service (e.g., a service that uses a the Licensor API) with the Services:

      1. the Licensor will not be responsible for any act or omission of the third party, including the third party's access to or use of the Licensee Data; and

      2. the Licensor does not warrant or support any service provided by such third party.

  25. Suspension

    1. Of End User Accounts by the Licensor

    2. If an End User:

      1. violates this Agreement; or

      2. uses the Services in a manner that the Licensor reasonably believes will cause it liability,

        then the Licensor may request that the Licensee suspend or terminate the applicable End User account. If the Licensee fails to promptly suspend or terminate the offending End User account, then the Licensor may do so.

    3. Security Emergencies

    4. Notwithstanding anything in this Agreement, if there is a Security Emergency then the Licensor may automatically suspend use of the Services.

    5. The Licensor will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

  26. Miscellaneous

    1. Terms Modification

      The Licensor may revise this Agreement from time to time and the most current version will always upon request. If a revision, in the Licensor’s sole discretion, is material, the Licensor will notify the Licensee (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to the Licensors blog or terms page, and the Licensee is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, the Licensee agrees to be bound by the revised Agreement. If the Licensee does not agree to the revised Agreement terms, the Licensee shall be entitled to terminate the Services within 30 (thirty) Business Days of receiving notice of the change.

    2. Entire Agreement

      This Agreement, including the Licensor’s invoice, constitutes the entire agreement between the Licensee and the Licensor with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, Schedule A, the Agreement.

  27. No Agency

    The Licensor and the Licensee are not legal partners or agents, but are independent contractors.

  28. Force Majeure

    Except for payment obligations, neither the Licensor nor the Licensee will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance).

  29. No Third-Party Beneficiaries

    There are no third-party beneficiaries to this Agreement. Without limiting this section, a the Licensee’s End Users are not third-party beneficiaries to the Licensee’s rights under this Agreement.

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.