1. INTERPRETATION
The following rules of interpretation and definitions apply in these Seat-Based License Terms:
1.1. Rules of Interpretation:
These Seat-Based License Terms shall be read and construed in line with the provisions of the T&Cs and in line with the provisions of the Principal Agreement.
1.2. Definitions:
Services: shall be interpreted broadly as to cover any and all types of services which Bluefort shall provide to the Customer, a more detailed reference to which shall be provided by means of the Principal Agreement.
2. GENERAL
2.1 In line with the provisions contained in these Seat-Based License Terms, in the execution of the Services by Bluefort, the Customer will be required to purchase third party software licenses (referred to as “Software” for the purposes of these Seat-Based License Terms). The said Software products and/or licenses may be for Microsoft products or otherwise of other independent software vendors (hereinafter “Independent Software Vendors”).
2.2 The Customer understands that seat-based subscription Software refers to Software which will be used by the Customer over a period of time, is provided in the form of a service and, by its own nature and model of subscription-based usage, is Software which will give rise to periodic invoicing covering the service in question. This is further explained and shown in the remaining provisions of these Seat-Based License Terms.
3. PURCHASE ORDERS
3.1 The Customer shall address any such requirements in the form of a purchase order (“Purchase Order”) to Bluefort which shall use its best endeavours to source, obtain and deliver to the Customer the Software in question in accordance with the provisions of these Seat-Based License Terms.
3.2 Each Purchase Order shall be subject to written acceptance by Bluefort. No contract shall come into being between the Parties until Bluefort has given such written acceptance to the Customer or if performance of the applicable Purchase Order has already commenced.
3.3 Bluefort shall supply the Software set out in each Purchase Order that is accepted by Bluefort.
3.4 Bluefort shall deliver the Software and any associated documentation to the location agreed in the Principal Agreement unless otherwise instructed by the Customer.
3.5 Bluefort shall install the Software upon the equipment specified in the Purchase Order and all costs associated with installation (including but not limited to configurations, testing and deployment) shall be at the Customer’s charge in line with the Hourly Rates specified in the Principal Agreement.
3.6 While Bluefort will use reasonable commercial efforts to meet delivery times, the Customer’s only remedy for unreasonable delay in delivery will be the right to terminate the relevant Purchase Order. No other remedies shall exist in favour of the Customer against Bluefort. Risk in all media will pass to the Customer upon delivery of the Software. Title to any media will pass to the Customer when Bluefort has been paid for the related Software and any associated documentation in full in line with the terms and provisions of these Seat-Based License Terms.
4. THIRD PARTY LICENSE TERMS AND RELATED CONDITIONS AND LIMITATIONS
4.1 The Customer hereby agrees that the Software to be supplied to it by Bluefort under these Seat-Based License Terms may contain license terms which the Customer hereby undertakes to fully observe and fully adhere to. In addition, the sourcing and supply by Bluefort of any such Software may be subject to the condition that Bluefort and/or the Customer agree to a third party license or equivalent agreement (such as, but not limited to Microsoft cloud solution provider agreements) a copy of which shall be provided to the Customer and to which terms the Customer shall fully adhere. The Customer shall abide with any and all terms and conditions attached to any such third party Software. Any such terms may cover a wide range of obligations which usually include issues concerning exclusivity, term, object and source code, number of users, copying of the software, updates, modifications, sub-licensing, use of the software within a group company structure, reservation of rights, warranties, reporting of defects, termination and renewal of use of the software, intellectual property rights, confidentiality, limitation of liability and other terms of use.
5. FINANCIAL CONSIDERATIONS
5.1 Once a Purchase Order is accepted by Bluefort, Bluefort shall immediately raise an invoice for the relative costs and fees of the Software products for Independent Software Vendors covering a period of one (1) month and, thereafter similar invoices shall be issued covering costs and fees to be incurred every subsequent month. For the purposes of clarity all such invoices shall be issued monthly in advance.
5.2 In addition to the invoice raised in terms clause 5.1 above, Bluefort shall, if applicable, raise an invoice which shall cover the costs and fees associated with Software products relating to Microsoft cloud (subscription based) licensing for a period of one (1) month and, thereafter, invoices shall be issued covering costs and fees to be incurred every subsequent month. For the purposes of clarity all such invoices shall be issued monthly in advance. The said invoices shall be set off and fully paid from the Subscription Deposit amount as provided for by the provisions of clause 5.4 below.
5.3 The payment terms referred to in clauses 5.1 and 5.2 above shall hereinafter be referred to as the “Payment Term(s)”.
5.4 On the basis of the information provided in the Purchase Order and, in addition to the invoices raised in terms of clauses 5.1 and 5.2 above, Bluefort shall immediately issue a request for payment (hereinafter the ‘Request for Payment’) amounting to one (1) calendar year’s worth of all costs and fees for the Software products relating to Microsoft cloud (subscription based) licensing and Independent Software Vendors software, which amount (hereinafter the ‘Subscription Deposit’) shall be held on account by Bluefort.
5.5 Any amounts paid in excess by the Customer, due to a decrease in the number of licences, shall be credited to the Customer’s account and set-off against future invoices. Requests for Payment shall be issued yearly, or where 10% or less of the amount of the Subscription Deposit paid for the previous year remains on account.
5.6 A Request for Payment issued in terms of clause 5.4 above shall be paid by no later than fifteen (15) days from the date that the Request for Payment is received by the Customer.
5.7 The Customer agrees that should there be changes in circumstances relating to the type and extent of use of the Software (including but not limited to requests from the part of the Customer to increase the use of the Software such as by adding more users or client accounts) then Bluefort shall raise a relative invoice to the Customer for any additional costs and fees.
5.8 The Customer shall pay each invoice of Bluefort within fifteen (15) calendar days of receipt.
5.9 If the Customer fails to make any payment due to Bluefort by the due date for payment, then, without limiting Bluefort’s remedies in terms of these Seat-Based License Terms, the T&Cs and the Principal Agreement or at law, the Customer shall pay interest on the overdue amount at the rate of six percent (6%) per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after any possible Court judgment to such effect. The Customer shall pay the interest together with the overdue amount.
5.10 All amounts due in connection with these Seat-Based License Terms shall be exclusive of VAT and shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. CONFIGURATION SERVICES AND SUPPORT & MAINTENANCE SERVICES
6.1 Any and all types of configuration services to the Software which the Customer shall request Bluefort to attend to shall be considered to be part of the Services which may be addressed by other agreements entered into with Bluefort or by the provisions of the Principal Agreement.
6.2 Any and all types of software support and/or maintenance services which the Customer shall request Bluefort to attend to shall be considered to be part of the Services dealt with as provided in the previous paragraph of this clause.
