“CMS” means the content management system used in conjunction with the mobile application known as Konversed as well as any archival copies of such computer programs and documentation permitted by this SLA.

“Konversed Software” means the Konversed content management system (“CMS”) used with the Apple iOS applications (“APP”) Software LICENSE and Xcode Licenses.

“Install” means placing the CMS on a computer’s hard disk, CD-ROM or other secondary storage device, including mobile phone devices or web-based storage.

“License Fee” means the per annum or monthly price payable.
“Use” means:

(i) executing or loading the CMS into computer RAM or other primary memory; or

(ii) copying the CMS for archival or emergency restart purposes.

“User” is a person who is granted the right to use the Konversed Software.

“Xcode” and “Swift” are a suite of tools developed by Apple for developing software for Mac OS X and iOS. Konversed is an APP developed using Xcode and Swift. Konversed is deployed in conjunction with an Apple Inc. software licence agreement for Xcode and Swift.

KONVERSED grants the Licensee a non-exclusive license to use the CMS for UNLIMITED users. Licensee will make no other copies of the CMS except as authorised herein. Title to the CMS will remain vested in KONVERSED, and nothing in this SLA will give or convey any right, title or interest therein to Licensee except as a licensee under the terms of this SLA.

KONVERSED reserve the right to refuse to grant a License to anyone for any reason at any time.

(a) Upon the execution of this Agreement, the Licensee must pay KONVERSED, either a monthly or annual license fee.

(b) The License Fee payable by the Licensee (as defined in Clause 1 above) shall entitle the Licensee to the following services in addition to use of the Konversed Software:

(i) support via the Internet, telephone or email;
and

(ii) all updates for the Konversed Software.

(c) The Licensee agrees that the SLA will not be granted by KONVERSED to the Licensee unless and until all fees payable under Clause 3(a) above have been paid in full.

(d) The Licensee acknowledges and agrees that, subject to the terms and conditions of this Agreement, failure by the Licensee to pay the License Fee as and when it becomes due and payable is a default under this Agreement and entitles KONVERSED to terminate this Agreement upon the giving to the Licensee of 28 days notice to remedy the default and provided that such default is not cured by the Licensee within 14 days thereof.

(e) Any new versions of Konversed that are released by KONVERSED will be made available to the Licensee and are included under the License Fee.

(f) Invoices rendered by KONVERSED to the Licensee for payment of services provided are payable within 7 days of the date of the invoice, failing which KONVERSED may charge interest on the outstanding amount at a rate of ten per cent per annum (10%p.a.) from the due date for payment until payment is received in full.

(a) The Licensee agrees that it will use the CMS and APP only in its own business, and not directly or indirectly for the use or benefit of anyone other than the Licensee, and only pursuant to the scope of the grant of the License set forth herein.

(b) The Licensee will not decode, alter, decompile, reverse engineer, perform reverse analysis on or disassemble the CMS and/or APP.

(a) This License is personal to the Licensee and may not be conveyed in any way without the prior written consent of KONVERSED. Any purported sale, assignment, transfer or sublicense without such consent will be voided, and will automatically terminate this SLA.

(b) The Licensee may not transfer this SLA without first obtaining prior permission in writing from KONVERSED. There may be some costs attached to transferring the SLA, and the Licensee must discuss the transfer with KONVERSED and obtain the aforementioned permission in writing before concluding any agreement with another party for the transfer of the SLA.

(c) Konversed Software is licensed to the Licensee, not sold. Only KONVERSED can grant a licence to use Konversed Software. Konversed Software cannot be legally acquired from any other person or company and all acquisitions other than from KONVERSED are invalid.

(a) The License commences as of the date of this SLA, and remains in force until termination of this Agreement by either party pursuant to the terms and conditions set forth herein.

(b) Upon termination of this SLA, the Licensee will:

(i) return all copies of the CMS to KONVERSED without demand or notice; or

(ii) permanently delete or destroy all copies of the CMS in its possession.

(c) Except as set forth in the provisions of this SLA that provide for automatic termination in the event of breach of confidentiality or unauthorized transfer, if the Licensee breaches any other provision of this SLA, KONVERSED may terminate this SLA provided, however, that KONVERSED has given Licensee at least fourteen (14) days’ written notice of and opportunity to cure the breach and that any such breach is not cured within the notice period. Termination for breach shall not alter or affect KONVERSED’s right to exercise any other remedies for breach

(d) In the event that KONVERSED terminates this Agreement due to failure of the Licensee to comply with the terms and conditions as set out herein, KONVERSED shall remove the Konversed APP from the Licensee via its Konversed Apple Developer Account from the iTunes Store as well as data stored on the Konversed Cloud Service including logins. Removal will occur within fourteen (14) days of the date of the email to the Licensee advising termination of the Agreement.

(e) The Licensee may terminate this Agreement at any time.

The Licensee agrees:

(a) to observe complete confidentiality with respect to the Konversed Software, and may not and agree not to or enable others to, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the Konversed Software or any services provided by KONVERSED or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Konversed Software). Any breach of confidentiality by the Licensee will automatically terminate this SLA. The Licensee agrees that KONVERSED’s remedies at law for breach of confidentiality may be inadequate and that KONVERSED will be entitled to equitable relief including, without limitation, injunctive relief, specific performance and/or other remedies in addition to any other remedies available at law; and

(b) that this Agreement and the information as contained herein are strictly private and confidential in nature as between the KONVERSED and the Licensee. Any unauthorised use or dissemination of this information will be considered a breach of this agreement.

The Licensee will immediately notify KONVERSED of any infringement or attempted infringement of KONVERSED’s rights in the CMS of which it becomes aware. The Licensee will affirmatively cooperate with KONVERSED in any legal or equitable action that KONVERSED may undertake to protect any of its rights in connection with the CMS.

KONVERSED warrants that it is the lawful owner of the CMS and/or that it has the authority to grant the License specified herein.

(a) KONVERSED warrants that the CMS has been developed in a workmanlike manner, and in conformity with generally prevailing industry standards. The Licensee must report any material deficiencies in the CMS to KONVERSED in writing within thirty (30) days of the date of this SLA.

(b) The Licensee’s exclusive remedy for the breach of the above warranty will be the correction of the material deficiency within a commercially reasonable time.

(c) This warranty is exclusive and is in lieu of all other warranties, whether express or implied, including any warranties of merchantability or fitness for a particular purpose and any oral or written representations, proposals or statements made on or prior to the effective date of this SLA. KONVERSED expressly disclaims all other warranties.

(a) Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the CMS, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages.

(b) This limitation is applicable to all software developed that utilises mobile platforms, including but not limited to iPhone, iPod Touch etc. KONVERSED will not be held responsible for any issues in the Konversed Software arising out of future upgrades released for the operating system or carrier upgrades after the completion and launch of the Konversed Software. Such issues will be treated as change requests and are not covered under the warranty clause.

(c) KONVERSED’s total liability under this SLA with respect to the CMS, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by the Licensee under this SLA.

(d) The Licensee agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or any of KONVERSED’s services must be filed by the Licensee within one (1) year after such claim or cause of action arose or such claim shall be forever barred.

(e) The Licensee will indemnify and hold KONVERSED harmless against any claims incurred by KONVERSED arising out of or in conjunction with the Licensee’s use of the CMS, as well as all reasonable costs, expenses and solicitors’ fees incurred therein.

(f) KONVERSED agrees to indemnify, defend, and hold harmless the Licensee and its successors, officers, directors, and employees from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings and damages (including reasonable solicitors fees):

(i) arising from KONVERSED’s performance or lack of performance of its duties under this Agreement; or

(ii) arising from its breach of any warranty and/or representation
or

(iii) arising from a breach of this Agreement generally.

(a) KONVERSED acknowledges that all material and information supplied by the Licensee which has or will come into KONVERSED’s possession or knowledge in connection with its performance hereunder, is to be considered the Licensee’s confidential and proprietary information. KONVERSED’s undertakings and obligations under this section will not apply, however, to any confidential information which:

(i) is or becomes generally known to the public through no action on KONVERSED’s part;

(ii) is generally disclosed to third parties by the Licensee without restriction on such third parties;
or

(iii) is approved for release by written authorization of the Licensee.

(a) The Licensee will obtain all necessary permissions and authorities with respect to the use of all copy, graphics, images, logos, names and trademarks and any other material (the “Material”) supplied by the Licensee to KONVERSED for use in or with the Konversed Software.

(b) The supply of said Material by the Licensee to KONVERSED shall be regarded as a guarantee from the Licensee that all such permissions and authorities have been sought and obtained for said Material.

(c) The supply of said Material by the Licensee to KONVERSED shall be regarded as a guarantee from the Licensee that the Material does not violate or infringe any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.

(d) No responsibility will be accepted by KONVERSED for damages or losses incurred by the Licensee from the use of Material for which permission or authority has not been obtained.

(e) The Licensee acknowledges and agrees that it will be solely responsible for all Material that it shares through the Konversed Software whether publicly posted or privately transmitted. The Licensee shall assume all risks associated with the use of the Material, including any reliance on its accuracy, completeness, or usefulness.

(f) The Licensee agrees to indemnify and hold KONVERSED and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, harmless from any claim or demand, including reasonable solicitor’s fees, due to or arising out of the Material, the Licensee’s use of the Materials, the Licensee’s connection to the Konversed Software or Materials, the Licensee’s use and access of personal information of other Users, the actions of any member of the Licensee, the Licensee’s access to or use of sites or linked sites and the Licensee’s connections therewith, any claim that the Material caused damage to someone else, any dealings between the Licensee and anyone else advertising or promoting via the Konversed Software or Materials, the Licensee’s violation of these terms and conditions, or the Licensee’s violation of any rights of another, including any intellectual property rights.