MacTron Systems has a strict policy for handling customer information. The information you provide to MacTron Systems or enter into DADIE is considered confidential by MacTron Systems and protected to the fullest extent possible. MacTron Systems will not disclose or distribute customer information or information entered by customers into DADIE concerning their customers, to third parties without prior written consent by the customer.
For complete details, please review the following policies:
Welcome to the MacTron Systems Web site (the “Site”). By accessing this Site, you agree to be bound by the terms and conditions below (the “Terms”). If you do not agree to all of the Terms, please do not use the Site. MacTron Systems may from time to time modify or revise the Terms by updating this Web page. Your use of our Site following any such change constitutes your agreement to follow and be bound by the Terms as changed. If any change is unacceptable to you, your only recourse is to terminate your use of the Site.
This section describes all the terms and conditions for the use of DADIE. Before entering into a DADIE subscription, please read this section carefully as you need to agree to these terms and conditions when installing your DADIE software.
END USER LICENSE AND SERVICE AGREEMENT
MacTron Systems cc (Service Provider) are the owners and developers of the DADIE software applications and platforms which it makes available to subscribers via the Internet on a subscription basis for the purpose of inter alia, consultants in a direct selling environment, to manage their purchases from a Direct Selling company and co-ordinate and manage their stock and sales to their clients and manage their client relations.
The Customer wishes to use the Service Provider’s service in its business operations.
The Service Provider has agreed to provide and the Customer has agreed to take and pay for the Service Provider’s service subject to the terms and conditions of this agreement, whereby it is agreed as follow:
The headings of the clauses in this Agreement are for purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention appears–
- Words importing
- any one gender includes the other gender;
- the singular includes the plural and vice versa; and
- a natural person includes juristic persons (corporate or unincorporated) and vice versa.
- A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
- References to clauses, and annexures are to the clauses and annexures of this Agreement; references to paragraphs are to paragraphs of the relevant annexures to this Agreement.
- If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
- When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a business day; in which case the last day shall be the next succeeding business day.
- The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
The definitions and rules of interpretation in this clause apply in this agreement.
- “Agreement” means this software subscription agreement and any schedules and annexures thereto;
- “Application” means the software program provided to the customer as set out in this Agreement”
- “Authorized Users” means those individuals who are authorized by the Customer to use the Services and the Documentation, as further described herein;
- “Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by a Party, or information which the receiving Party knows or reasonably should have known is of a proprietary or confidential nature;
- “Customer Data” means the data inputted by the Customer (User), Authorized Users, or the Service Provider on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, and includes (without limitation) Personal Information;
- “DADIE” means Dedicated Application and Data Integrated Engine;
- “DADIE DSM” means DADIE Direct Sales Manager;
- “DSC” means direct selling company;
- “Effective Date” means the date on which this Agreement will come into force and effect;
- “EULA” means End User License Agreement;
- “Initial Subscription Term” means on a month to month basis;
- “Intellectual Property Rights” means all the rights in and to Intellectual Property including (without limitation) the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any Confidential Information or processes relating to that subject matter;
- “Party” means either the Service Provider or the Customer, and “Parties” means both the Service Provider and the Customer;
- “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013 (“POPI”), and any applicable law in South Africa and/or in any other jurisdiction where the Services are provided and/or used;
- “Services” means the subscription services provided by the Service
- “Service Provider” – MacTron Systems cc.
- “Signatories” means the persons signing this Agreement.
- “Software” means the online software, or software distributed through CD, memory stick or other means as the applications provided by the Service Provider as part of the Services;
- “Subscription Fees” means the subscription fees payable by the Customer to the Service Provider for the User Subscriptions, as set out in the Schedule attached hereto;
- “Setup Fees” means the once off, non-refundable fee payable when registering the product for the first time. Should a user unsubscribe and re-subscribe at a later time, this fee will be payable again.
- “Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Periods;
- “Support Services Policy” means the Service Provider’s policy for providing support in relation to the Services as made available as from the day of signing.
- “User” means the customer to use the Subscription and party to this Agreement and may be used interchangeably;
- “User Subscriptions” means the user subscriptions purchased by the Customer pursuant to clause 4.2, which entitle Authorized Users to access and use the Services and the Documentation in accordance with this Agreement;
- “Vendor” means the provider of the server on which the data is stored (server) and/or the internet service provider (internet) independent from the Service Provider.
- “Virus” means a device or thing (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
3. USER SUBSCRIPTIONS
- Subject to the Customer purchasing the User Subscriptions in accordance with the terms and conditions of this Agreement, the Service Provider hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorized Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
- In relation to the Authorized Users, the Customer undertakes that: the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
- Each Authorized User shall keep a secure password for his use of the Services and Documentation;
- The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- including but not limited, anything that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; and the Service Provider reserves the right to disable the Customer’s access to any material that breaches the provisions of this clause.
- The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement, attempt or allow anyone to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to reverse compile, dismantle, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
- The Customer shall prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, shall promptly notify the Service Provider.
4. ADDITIONAL USER SUBSCRIPTIONS
- The Customer may, from time to time during any Subscription Term require additional User Subscriptions in excess of this single user Agreement.
- The Service Provider shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this Agreement.
- The application for a further user will be in the way of an additional separate agreement to this Agreement, alternatively as second user listed in this Agreement and may have access to the passwords, however the Customer (licensed user) will remain accountable in for all the terms and conditions as set out in this Agreement.
- The Service Provider shall, during the Subscription Term, provide the Services and make available the Application to the Customer on and subject to the terms of this Agreement.
- The Service Provider shall use commercially reasonable endeavors to make the Services available 7 days a week, except when:
- planned maintenance is carried out;
- unscheduled maintenance or upgrades are performed.
- The Service Provider will, as part of the Services provide the Customer with the Service Provider’s standard customer support services during business hours in accordance with the Service Provider’s Support Services Policy.
6. THIRD PARTY PROVIDER OR VENDORS
- DADIE operates on a Client Server configuration. This means that the Client’s personal computer (PC) with the Application on it. The client processes” all the data but storage of data is on a server belonging to a Third Party / Vendor, in other words, an independent company in another location.
- The Third Party / Vendor (hosting company) is therefore responsible for guarantying the levels of up-time, power and service ability as a standard and is not the Responsibility of the Service Provider.
- The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
- The Service Provider shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third- party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
- The Service Provider does not endorse or approve any third-party website nor the content of any third-party website made available via the Services.
- The costs owed to said third party/vendors for all and any data used shall be for the Customer, regardless of the amount of Data used by DADIE or any other application running on the customer’s system.
Any slow or unreliable connections due to internet and Network issues are between the Customer and Third Party and the Service Provider accepts no responsibility therefore.
7. SERVICE PROVIDER’S OBLIGATIONS
- The Service Provider undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Service Provider’s instructions, or modification or alteration of the Services by any party other than the Service Provider or the Service Provider’s duly authorized contractors or agents.
- Notwithstanding the foregoing, the Service Provider:
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities.
- The Service Provider warrants that the Client’s data is kept on a server in a secure PCI DSS complaint center. However, retains the right to change such provider of said server to another of the same standard, with due notice to the Customer
- That the data center conforms to PAIA.
- The Service Provider will take all necessary precautions to keep confidential and protect the data of the Customer, however, does not accept any responsibility whatsoever for data loss or leaks for whatever reason, from external hack/s beyond its control.
- The Service Provider will under no circumstances be held liable for loss of data due to incorrect use of DADIE by any Customer or authorized user or network failure.
8. CUSTOMER’S OBLIGATIONS AND RIGHTS
The Customer shall:
- ensure a reliable internet connection is in place, as the speed of response and performance of DADIE is directly proportionate to the quality of the internet connection and the performance of the servers at all times and therefore it is the responsibility of the Customer;
- provide the Service Provider with:
- all necessary co-operation in relation to this Agreement; and
- all necessary access to such information as may be required by the Service Provider;
- comply with all applicable laws and regulations with respect to its activities under this Agreement;
- ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement;
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Service Provider’s data centers.
- not attempt to access the database in any unauthorized way other than through the DADIE Application;
- not to allow anyone to use your license or access passwords to attempt to access to the data base;
- not to try, nor allow anyone else to capture, intercept data or record the communications between the Customer and the server;
- not divulge their password or share their license with any other person to gain access to their data, unless it is a person listed in this Agreement as an alternative user.
9. CHARGES AND PAYMENTS
- This Agreement is subject to a month to month subscription, payable up front for the forthcoming month and shall be made on or before the first day of the month.
- Where the Customer has opted to make use of the SMS facility, of DADIE, the per second cost of SMS’s generated by DADIE for the benefit of the Customer shall be added to the monthly bill of the Customer and the customer will be liable to pay the fees of the used SMS.
- The monthly subscriptions and SMS fees may be revised by the Service Provider on an annual basis at the beginning of the calendar year and be implemented by the first (1st) of March, every year. The customer to be notified of any price increase one (1) month in advance.
- The Customer shall be entitled to free upgrades of new release of the DADIE Application for Microsoft Windows based platforms.
- Should the Customer be in default regarding the payment of the monthly subscription and/or the SMS fees, the Service Provider reserves its rights to suspend the Customer and close access to the data base until the subscription and/or SMS fees have been paid in full and the forthcoming month payed for in advance. The Service Provider will further not be liable for any service upgrades maintenance or repairs, until such time as the outstanding account has been brought up to date as contemplated above.
10. INTELLECTUAL PROPERTY/LICENSE RESTRICTIONS
- The Customer acknowledges and agrees that the Service Provider and/or its licencors own all Intellectual Property Rights in and to the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other Intellectual Property Rights, or licences in respect of the Services or the Documentation.
- The Customer is granted the following personal, limited. Non-exclusive non-transferable, non-assignable right to use the Software for the Customers own use, provided that the Customer adheres to all terms and conditions of this Agreement. The foregoing is an express limited use of the License and may the License may not be assigned, sold or transferred. Copies may be made of the Software in machine-readable format only and this is for the sole purpose of “backup”. Said copy must display copyright notices and any other proprietary legends as they appear on the original.
- The Customer shall be entitled to install the software and operate DADIE on a second computer in another location on condition that the DADIE is used exclusively by the Customer or authorized co-user under the original licence issued to the customer.
- The Customer may not, nor allow anyone else to, alter, merge, modify, adapt, port, or translate the software, or decompile, reverse engineer, disassemble, decipher, decrypt, create derivative works based upon the Software or otherwise attempt to reduce the software to a human-perceivable form.
- The Customer may not charge for any service that uses the Software, (b) charge for copies of the Software, or (c) charge for support services associated with the Software.
- The Customer may not rent, lease, lend, sub-license, or redistribute the Software in any form or transfer any rights in this EULA or the Software to third parties.
- The Customer may not remove, alter, modify, deface, overprint or otherwise obscure the software, trademark, service marks, copyright notices, manuals, EULA, or any documentation supplied with the Software.
- The Customer may not ship, transfer, or export the Software beyond the borders of South Africa, without the written consent of the Service Provider.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving Party;
was in the other Party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
is independently developed by the receiving Party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for purpose other than the implementation of this Agreement.
Each Party shall take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12. WARRANTY DISCLAIMER
The Software is being supplied to is “AS IS” and the Service Provider makes no warranty as to its use or performance. The Service Provider disclaims all warranties and representations, whether express, implied, or otherwise, including the warranties of merchantability or fitness for a particular purpose. There is no warranty of non-infringement and title. The Service Provider does not warrant that the software is error-free or will operate without interruption.
The service provider undertakes to rectify any errors reported in the software, reported by the client, in writing, to the service provider. Such unplanned rectifying action will be completed in a reasonable time depending on the resources and work load of the service provider at the time.
13. LIMITATION OF LIABILITY
The Service Provider shall not be liable to you or any third party for any indirect, special, incidental, punitive, cover or consequential damages (including, but not limited to, damages for the inability to use equipment or access data, loss of business, loss of profits, business interruption or the like), arising out of the use of, or inability to use, the software and based on any theory of liability including breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if licensor or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. The foregoing limitations on liability are intended to apply to the warranties and disclaimers above and all other aspects of this EULA.
The Customer agrees to indemnify and hold the Service Provider, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Software, or the infringement, of any intellectual property or other right of any person or entity. It is expressly acknowledged by the Customer and agreed that use of the software is at the Customers sole risk. The software and documentation is provided as is without warranty of any kind. To the maximum extent permitted by applicable law, the Service Provider, its suppliers and distributors further disclaim all warranties; including without limitation any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The entire risk arising out of the use or performance of the software and documentation remains with the Customer.
To the maximum extent permitted by applicable law, in no event shall the Service Provider, its suppliers or distributors be liable for any consequential, incidental, direct, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of this Agreement or the use of or inability to use the software, even if the Service Provider, its suppliers or distributors have been advised of the possibility of such damages.
This Agreement is effective until terminated, either by the Service Provider or the User may terminate this Agreement on thirty (30) days’ written notice by either party.
Without limiting the foregoing, the Service Provider may, due to the nature of the Application, have the right to immediately terminate this Agreement at any time in the event of any breach by the User of this Agreement and in the event that User knowingly breach this Agreement or that it becomes known to the User that this Agreement has been breached, the User will immediately notify the Service Provider of such breach and this Agreement will immediately terminate at the discretion of Service Provider.
In terms of any termination as contemplated in terms of this Agreement, the Software must with immediate effect be uninstall from the User’s PC and any other device or Pc that it may be installed on. Any and all copies of the Software, as allowed in terms of this Agreement, any accompanying documentation, and all other associated materials received or made pursuant to this Agreement, must be destroyed.
The User’s access to the database will with immediate effect be terminated by the Service Provider and the User will have no further claim to the data which will be permanently destroyed by the Service Provider.
16. FORCE MAJEURE
The Service Provider shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Service Provider or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Service Providers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
19. ENTIRE AGREEMENT
This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
The Customer shall not, without the prior written consent of the Service Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
The Service Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Each of the Parties chooses their respective addresses set forth here-under for the purposes of giving any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement. (Domicilium Citandi Executandi)
22. GOVERNING LAW AND JURISDICTION
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of South Africa.
The Parties irrevocably agree that the Magistrate Court of South Africa has exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).
23. EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement as at the date of signature of the Party that signs its counterpart last in time.
It is assumed that the owner or user authorized by the owner of the computer on which the DADIE software is installed will be the unauthorized signatory for accepting the agreement for DADIE. The unauthorized signatory, accepts that by clicking, “Accept” to this agreement, during the software installation on the said computer, shall have the same meaning and authority as if this agreement is physically signed on paper and the signatory shall have the necessary authorization to sign this Agreement and should anyone of the signatories not have the necessary authority to sign this Agreement, then then the unauthorized signatory shall be personally liable in terms of this Agreement.