SOFTWARE LICENSE AGREEMENT
By clicking the I Agree button, you the user (Licensee), agree to be bound by the terms of this Software License Agreement (Agreement) by and between the African Risk Capacity (ARC) Agency, a Specialized Agency of the African Union established under the Agreement for the Establishment of the African Risk Capacity (ARC) Agency which was adopted and opened for signature in Pretoria, South Africa on 23 November 2012 (Licensor) and you as Licensee (each, a Party and, jointly, the Parties). If you, Licensee, do not agree to the terms of this Agreement, you must not access or install the software and click the I Do Not Agree button.
WHEREAS, Licensor desires to grant to Licensee, and Licensee desires to receive, a license to the Licensed Software on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows:
1.1 Affiliates means, as to each party, any entity that, directly or indirectly through one or more intermediaries, is controlled by or controls such party. For purposes of this definition, the term controlled by means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or otherwise.
1.2 Licensed Software means the Africa RiskView software along with related documentation.
2. License Grant.
2.1 Grant. Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a non-exclusive, non-transferable, non-commercial, non-sublicensable, royalty-free, and fully paid-up license to use the Licensed Software solely for Licensee's individual and internal use.
2.2 Intellectual Property . All intellectual property rights in respect to the Licensed Software and any related materials lie with Licensor. Any reproduction, dissemination or other use requires prior approval of Licensor.
2.3 Disclaimer . While every care has been exercised in creating the Software and compiling the data contained therein, the Licensor accepts no responsibility for the accuracy of the information and no liability for losses of any kind that may be attributable to the data contained in the Licensed Software. All Africa RiskView products on www.africariskview.org are works in progress, subject to change at any time and shown for illustration only.
2.4 Restrictions . Licensee shall not publish graphs or maps produced or created by the Licensed Software, nor may it publish reports, research papers or other publications which rely on data, results or analysis produced or created by the Licensed Software without the express permission of the Licensor. In addition, Licensee shall not (and shall not cause or allow any third party to) remove any copyright or other proprietary notices of Licensor from any of the Licensed Software.
3. No Representations and Warranties.
3.1 Assumption of Risk. Licensee, on behalf of itself and its Affiliates, hereby assumes all risk and liability in connection with its and its Affiliates use of the Licensed Software.
3.2 Disclaimer of Representations and Warranties. LICENSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE LICENSED SOFTWARE OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT.
4. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL LICENSOR BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OR (B) LOST PROFITS OR LOST BUSINESS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
5. Indemnification . Licensee shall indemnify, defend and hold harmless Licensor, its affiliates and each of their respective officers, directors, employees and agents from any and all liability (including, without limitation, reasonable attorneys' fees and costs) resulting from any claim brought or made against Licensor based on any unauthorized use of the Licensed Software by or on behalf of Licensee or any of its Affiliates.
6.1 Confidentiality Obligations. Licensee shall keep the Licensed Software, related documents thereto and any other information communicated under this Agreement (Confidential Information) confidential.
6.2 Exceptions. Licensee shall not be obligated under Section 6.1 above pertaining to any Confidential Information that Licensee can show by written evidence (a) was or becomes publicly known through no fault of Licensee, (b) was known by Licensee before receipt from Licensor, (c) becomes known to Licensee without confidential or proprietary restriction from a source other than Licensor that does not owe a duty of confidentiality to Licensor (or any third party), or (d) is independently developed by Licensee without the use of or reference to any of Licensor's Confidential Information. Licensee may use or disclose Licensor's Confidential Information to the extent such use or disclosure is reasonably necessary to comply with applicable governmental regulations, court order or subpoena, provided that Licensee provides reasonable advance written notice to Licensor of any such disclosure and uses its reasonable efforts to secure confidential treatment of Licensor's Confidential Information prior to its disclosure (whether through protective orders or otherwise) and discloses only the minimum amount of information necessary to comply with such requirements.
7. Dispute Resolution. The Parties shall use their best endeavours to settle amicably any dispute, controversy or claim between the Parties arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a Dispute). Where the Parties wish to seek an amicable settlement through conciliation, the conciliation shall take place in accordance with the UNCITRAL Conciliation Rules, or in accordance with such other procedure as may be agreed to between the Parties. Unless any Dispute is settled amicably in accordance with the preceding Clause within 60 (sixty) calendar days (or such other longer period as agreed by the Parties) after receipt of one Party of the other Party's request for such amicable settlement in writing, such Dispute shall be referred by either Party to arbitration for exclusive resolution of the Dispute under the UNCITRAL Arbitration Rules then in force. The arbitral tribunal, which shall be composed of 1 (one) arbitrator, shall be empowered to order: (i) the return or destruction of goods or any property, whether tangible or intangible, or of any confidential information provided hereunder; (ii) the termination hereof; or (iii) that any other protective measures be taken with respect to the goods, services or any other property, whether tangible or intangible, or of any confidential information provided hereunder, as appropriate, all in accordance with the authority of the arbitral tribunal pursuant to Article 26 (the Interim Measures of Protection) and Article 32 (the Form and Effect of the Award) of the UNCITRAL Arbitration Rules. The arbitral tribunal shall have no authority to award punitive damages. The Parties shall be bound by any arbitration award rendered as a result of such arbitration as the final adjudication of any such Dispute. The language of any such proceedings shall be English.
8. Privileges and Immunities. Nothing in this Agreement or any document entered into in connection with this Agreement shall imply a waiver, express or implied, by ARC Agency of any privileges and immunities enjoyed by them pursuant to the Establishment Agreement, the 1965 OAU General Convention on Privileges and Immunities, the 1980 Additional Protocol to the OAU General Convention on Privileges and Immunities, customary international law, other relevant international or national agreements, and under domestic law.
9. Governing Law. This Agreement and any dispute arising herefrom shall be exclusively governed by general principles of law, to the exclusion of any single national system of law.
10.1 Assignment. This Agreement including without limitation, the Licensed Software, may not be transferred or assigned by Licensee, in whole or in part. Any assignment in violation of this Agreement shall be null and void.
10.2 Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, and (b) all past courses of dealing and industry custom. This Agreement may not be amended and no provision of this Agreement may be waived except in a writing signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights or any other rights.
10.3 Notices. Any notice or other communication required or permitted to be made or given to either party under this Agreement shall be deemed sufficiently made or given on the date of delivery if delivered in person or by overnight commercial courier service with tracking capabilities with costs prepaid, or five (5) days after the date of mailing if sent postage prepaid, to the address of the parties (and addressed to the representative) set forth or such other address (or representative) as may be given from time to time under the terms of this notice provision. Notice or communication delivered to the Licensee shall be to the address provided to the Licensor by the Licensee at a later date.
If to Licensor:
Ms. Ropafadzo Makusha
African Risk Capacity
11 Naivasha Road
Johannesburg, South Africa
10.4 Severability. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.5 Independent Contractor. Each party hereto is acting as, and shall be considered, an independent contractor, and no relationship of partnership, joint venture, employment, franchise, agency or similar arrangement is being created pursuant to or by virtue of this Agreement.
10.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
10.7 Headings. The headings in this Agreement are for convenience of reference only and shall not affect or be utilized in the interpretation of this Agreement.