Terms and Conditions of Sale and Rental of PROKON Product Licenses
1.
Definitions
1.1
For the
purposes of this document:
1.2
"PROKON" means PROKON Software
Consultants (Pty) Ltd, a South African Company with its principal place of
business located at 10 Guild House,
1.3
"client" means a third party desiring to use
one or more of the PROKON Products for his/her own design needs;
1.4
"module" means a program that is
marketed in the PROKON suite of programs with a unique product code and product
name eg A03:Frame
Analysis;
1.5
"set" means a number
of PROKON modules that have been grouped for use to a client’s
needs
1.6
"workstation" means a set of PROKON modules,
that can be accessed directly or via a network, on a single machine by a
user;
1.7
"update" means a free replacement of an
older version of a PROKON module by a newer version of that
module;
1.8
"license purchase agreement" means an
agreement whereby a client purchases licenses for usage of a number of PROKON
workstations in one or more sets to be used for an indefinite period. This
agreement pertains to usage of the PROKON modules as distributed by PROKON at
PROKON’s discretion on the purchase or shipping date, or any date thereafter,
including updates that are permitted by PROKON in the
agreement;
1.9
"license rental agreement" means an
agreement whereby a client rents licenses for usage of a number of PROKON
workstations in one or more sets to be used for a definite period. This
agreement pertains to usage of the PROKON modules as distributed by PROKON at
PROKON’s discretion on the purchase or shipping date, or any date thereafter,
including updates that are permitted by PROKON in the
agreement;
1.10
"branch discount" means a discount that may
be offered by PROKON to a client for purchase or rental of any PROKON license
for a module which is being bought or rented by another branch of the client’s
business;
1.11
"multiple workstation discount" means a
discount that may be offered by PROKON to a client for purchase or rental of any
PROKON license for a module which is being bought or rented by themselves for
use by the client at the same premises of the
business;
1.12
"upgrade discount" means a discount that may
be offered by PROKON to a loyal client for regular
upgrades;
1.13
"maintenance" means an ongoing annual
agreement between PROKON and a client for automatic updates of PROKON products
licenses that the client uses under a license purchase agreement. It
includes free updates and any other services as PROKON may supply under the
agreement during a prepaid year. PROKON automatically invoices the client
for the next year of updates and services until PROKON or the client terminates
the agreement in writing before expiry of any annual term of maintenance;
1.14
"upgrade" means the purchase of new PROKON
modules to replace an old set/sets that have not been maintained. PROKON
may at its own discretion grant a discount to loyal clients for frequent
upgrades;
1.15
"renewal" means the reinstatement of a
license rental agreement between a client who currently has a rental license
agreement and PROKON for a new term before the expiry of the current agreement;
1.16
"support" means the assistance to a client
in the correct usage of a PROKON product by PROKON staff on a medium suitable
for the process;
1.17
"package" means the physical media on which
the software is supplied to the client, including any documentation, agreements,
forms or additional materials and media supplied in conjunction with the
software;
2.
Client Requirements:
Before an agreement exists the client shall:
2.1
complete in
full, the order form sent to him/her by fax, standard mail, e-mail,
electronically or directly on the internet.
2.2
return the
completed document of 2.1 to PROKON in a format that is easily legible in a
language that is understandable to the staff of PROKON. English is the
language of preference, but enquiries may be made for other languages.
2.3
on receipt of
an invoice, pay the full amount AND COMMUNICATE PROOF OF PAYMENT TO PROKON IN A
FORMAT THAT IS LEGIBLE IN A LANGUAGE THAT IS UNDERSTANDABLE TO PROKON. See
2.2 for language preferences.
2.4
on receipt of
the package, acquaint himself/herself with the license agreement, and choose to
accept the agreement. This agreement is also available to the client
before placing any order. Should the client not agree with the license
agreement, he /she should stop the install or deactivate and uninstall all
products and return it in the original packaging to PROKON within 7 days of
receipt of said products. After 7 days the client shall have no recourse
in this regard.
3.
PROKON
Responsibilites
3.1
On receipt of
the client details PROKON shall record the details in their client database
subject to PROKON’s client data privacy protocol.
3.2
An invoice
shall be generated for the order received and sent to the client. An
explanatory letter may accompany this invoice in certain
cases.
3.3
On receipt of
proof of payment, the package shall be constructed for the client and made
available according to the selection of delivery methods on the order
form.
4.
Discounts
4.1
Discounts
mentioned in this section are granted by PROKON to clients at PROKON’s sole
discretion. PROKON retains the right to change any discount value, in any
territory, concerning any or all clients, at any time, without notice.
4.2
For any license
purchase agreement or license rental agreement, the first copy of any module
bought or rented by a client shall be charged at full price as per the current
price list.
4.3
Any further
copies at the same site under the same agreement may qualify for a multiple workstation discount. This is
currently a discount of 66.7%.
4.4
Should a
client’s business consist of several branches or satellite offices he/she may
wish to purchase the same or similar modules for all or some of the branch
offices. In this case the first module at a branch office may be eligible
for a branch discount. The
module must have been included in a current agreement at full price at another
branch to qualify. The branch discount is currently
50%.
4.5
No discounts
apply to D01:PADDS.
4.6
See 8.2 and 8.3
for upgrade discounts.
5.
The License purchase
agreement:
5.1
is a perpetual
agreement for the usage of the software, except for the conditions stated in
5.7;
5.2
currently has
an effective starting date on the first day of the next calendar month after the
order is placed, but PROKON reserves the right to stipulate a starting date to
the client;
5.3
includes one
(1) year maintenance in the purchase price, but PROKON retains the right to
change this benefit at any time, in any territory, concerning any or all
clients, at any time, without notice;
5.4
includes one
(1) year support – via e-mail and telephonic support during office hours.
PROKON retains the right to change any support structure or benefit, in any
territory, concerning any or all clients, at any time, without notice;
5.5
The support
agreement in a territory with a PROKON
accredited dealer is made between the client and the dealer.
Should the dealer lose his/her accreditation during a support period, PROKON is
under no obligation to take over such an agreement, neither does PROKON give any
warranties or guarantees with regard to this support agreement. Should
PROKON then at its own discretion supply support to the client, it shall be
under terms and conditions as stipulated by PROKON at the
time;
5.6
is a prepaid
agreement;
5.7
is terminated
in the following instances:
5.7.1
unlawful use of
any of the PROKON products;
5.7.2
if any attempt
has been made to bypass any security or copy protection measures built into the
PROKON products;
5.7.3
if any
fraudulent information has been given to PROKON, its support staff or any
accredited dealer or reseller, in an attempt to acquire additional working
PROKON product/products;
5.7.4
when a set or
package is split due to non-upgrade/non-maintenance of one or several modules in
a set, the agreement is terminated for the modules that are not maintained or
upgraded
5.7.5
when a set,
workstation or package contains modules under a license purchase agreement and
modules under a license rental agreement, the modules under the license purchase
agreement that are not upgraded or maintained at the same time as the entry into
or renewal of the license rental agreement, shall be deemed to have been removed
from the agreement;
6.
The License rental
agreement:
6.1
is a limited
time agreement for the usage of the software;
6.2
currently has
an effective starting date on the first day of the next calendar month after the
order is placed, for new clients, but PROKON retains the right to specify a
starting date;
6.3
has an
effective starting date on the date that a previous agreement lapsed, for
current clients;
6.4
currently runs
for one (1) year but PROKON retains the right to change the term for the next
renewal at any time, in any territory;
6.5
includes one
(1) year maintenance but PROKON retains the right to change the term or benefit
for the next renewal at any time, in any territory;
6.6
includes one
(1) year support – via e-mail and telephonic support during office hours.
PROKON retains the right to change any support structure or benefit, in any
territory, concerning any or all clients, at any time, without
notice;
6.7
See 5.5 for
conditions of support under a dealership;
6.8
is a prepaid
agreement;
7.
Maintenance
:
7.1
is an agreement
that may be entered into with PROKON if the client has a license purchase
agreement;
7.2
may be entered
into before the first year maintenance after the original purchase
expires;
7.3
may be entered
into within a year after an upgrade;
7.4
is currently
charged at 15% of the prevailing purchase price per module per year of
maintenance;
7.5
is an agreement
on which discounts may apply, at PROKON’s discretion – see section
4;
7.6
is
automatic. PROKON will automatically invoice the client annually and the
client is bound by the agreement until one of the parties terminates the
agreement in writing before the end of the current maintenance
year;
7.7
entitles the
client to updates during the maintenance year, which may be downloaded from the
PROKON website, or may be provided to the client by other means and at intervals
deemed practical to PROKON;
7.8
entitles the
client to free support during the maintenance year - via e-mail and telephonic
support during office hours. PROKON retains the right to change any
support structure or benefit, in any territory, concerning any or all clients,
at any time, without notice;
7.9
See 5.5 for
conditions of support under a dealership;
7.10
is a prepaid
agreement;
8.
Upgrade
:
8.1
is a license
purchase agreement of new PROKON modules to replace older PROKON
modules;
8.2
PROKON may
grant a discount to clients who loyally upgrade often, but do not wish to enter
into a maintenance agreement;
8.3
Currently the
discounts are as follows:
8.3.1
80% before the
end of the first year;
8.3.2
60% before the
end of the second year;
8.3.3
40% before the
end of the third year;
8.3.4
20% before the
end of the fourth year;
8.4
is a license
purchase agreement under which discounts, updates and support apply as for all
license purchase agreements;
8.5
has an
effective starting date on the day of the month that a previous agreement
lapsed, unless the upgrade takes place without an upgrade
discount;
9.
Update
:
9.1
is a free
software upgrade within:
9.1.1
the first year
after purchase;
9.1.2
a license
rental agreement;
9.1.3
a year after an
upgrade;
9.1.4
a maintenance
agreement;
10.
Further
provisions
10.1
PROKON Software
is shipped on a CD. PROKON retains the right to change the method of
shipping the software in any territory, concerning any or all clients, at any
time, without notice;
10.2
Usage of the
installed software is only possible after activation of the workstation.
This may currently be done by calling the PROKON staff during office hours, over
the internet or by e-mail. Similarly the workstation may be deactivated
using these three methods. PROKON retains the right to change the method
of activation of the software in any territory, concerning any or all clients,
at any time, without notice;
10.3
Any client
office may receive a CD with two (2) sets of programs. There may be as
many workstations per set as the client requires. Should the client
require more than two sets per site, he/she will forfeit the multiple
workstation discount. PROKON may at its own discretion apply the branch
office discount in this case.
10.4
The PROKON
programs may be downloaded from the internet at the PROKON website http://www.prokon.com.
When they have been installed, they will run in “DEMO” mode.
10.5
DEMO mode gives
the user functioning modules to demonstrate the working of the program.
They have however been adjusted in order to make it difficult to do commercial
working designs on them.
10.6
The programs in
DEMO mode constitute PROKON’s student version. Post graduate students may
apply for limited time “Evaluation” copies for more intricate models or design
examples.
10.7
Evaluation
software is a full set of PROKON programs, activated for a limited time, running
in full working mode. Potential clients may request an evaluation from
PROKON.
11
Warranty, Limitation of
Liability and Jurisdiction
11.1
With this
document PROKON makes and you receive no express warranties. Any
statements or representations in this document or any communication with you
about this document constitute technical information and not any warranty or
guarantee. PROKON specifically disclaims any other warranty including without
limitation, any implied warranties.
11.2
In no event
shall PROKON or its licensors have any liability for any incidental, special,
indirect, direct, or consequential damages, loss of profits, revenue, data, or
cost of cover. In addition PROKON and its licensors have any liability for
changes to this document or any of PROKON’s
policies.
11.3
PROKON retains
the right to change any clauses in this document without notice and with
immediate effect.
11.4
All agreements
in this document and/or any other agreements proposed by PROKON and accepted by
the client are governed by the laws of the