OCS | OnSiteIMS
Onsite Control Systems (OCS) makes no warranty and (to the extent permitted by applicable law) disclaims all liability for any data or information you may obtain from this web site, including any consequence of acting upon such data or information. OCS does not accept any responsibility or liability for (i) enabling you to link to any site on the internet other than our web site, or (ii) the contents of any other site, whether one from which you may have been on prior to linking to this website, or one to which you may link to, from this website.
All copyright and other intellectual property rights in the design and contents of OCS’s web site are reserved to OCS and its licensors. You may view and print extracts from the pages of this web site for your personal use only. None of the contents of this web site may be incorporated into, reproduced on, or stored in any other web site or otherwise in an electronic retrieval system or in any other work or publication, whether in hard copy, electronic, digital or other form without the written permission of OCS.
OnSiteIMS is a registered product name, including those listed below, are SA registered trademarks of Onsite Control Systems.
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All other copyright and trademarks are acknowledged as the property of their respective owners.
ONSITEIMS SOFTWARE LICENCE AND SERVICES AGREEMENT END USER AGREEMENT
These terms and conditions constitute the conditions upon which Onsite Control Systems CC (hereinafter referred to as “OCS”) licenses You (hereinafter referred to as “You”) to use the OnsiteIMS system (hereinafter referred to as the “Software”) and obtain certain services from OCS.
Unless the contrary is clearly indicated, the following words and/or phrases, when used in this Agreement, shall have the following meaning:
1.1 “Agreement” shall mean this written document together with all written appendices, annexures, exhibits or amendments attached to it from time to time;
1.2 “Confidential or Disclosed Information” shall mean
1.2.1 any information of whatever nature, which has been or may be obtained by any of the Parties from the other, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas;
1.2.2 analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition;
1.2.3 any dispute between the Parties resulting from this Agreement;
1.3 “Intellectual Property Rights” shall include, without limitation, copyright, trade marks, service marks, trade names, domain names, registered designs, patents, petty patents, computer programs (including Source Code and object code), utility models and like rights relating to or otherwise connected with the Software, in each case whether registered or unregistered and including applications for the grant of any of the foregoing; rights in know-how, confidential information, designs, trade secrets, other intellectual property rights and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist in any country in the world;
1.4 “License” shall mean the non-exclusive right granted to You to Use the Software in accordance with Clause 2 of this Agreement;
1.5 “Mobile Device” shall mean a pocket-sized computing device, typically having a display screen with touch input or a miniature keyboard;
1.6 “Parties” shall mean You and OCS;
1.7 “Software” shall mean the OnsiteIMS software program which digitizes almost all aspects of the day to day management of works, quality, efficiency, tracking and control in the building industry. OnSiteIMS uses both a web based login application for laptop interface and Windows Mobile 5.0+ hand held PDA applications on each device issued to main contractor management members on a building contract. The system replaces existing paper based methods of issuing, controlling, tracking information, correspondence and instructions issued on a contract from start to finish and duplicates this functionality digitally;
1.8 “Software Documentation” shall mean the written document(s) containing detailed instructions pertaining to the use of the Software and setting out the operation of the Software; and
1.9 “Use” shall mean that OCS is entitled to allow the Software to operate for the benefit of You on Your own internal operating systems or central processors.
2. GRANT AND NATURE OF LICENSE
2.1 OCS herewith grants a License to You on the terms and conditions set out in this Agreement.
2.2 The License granted to You authorises You to Use the Software until the Agreement is terminated in accordance with Clause 6.
2.3 You shall not have the right to sub-license or transfer the Software in any way, either in whole or in part.
2.4 You shall not copy nor permit any employee, contractor and/or third party to copy the Software.
2.5 You shall not modify, de-compile, disassemble or otherwise reverse-engineer the Software, or attempt to do any of these.
3. LIMITATION OF LIABILITY
3.1 The liability of OCS for faulty execution of the Software as well as all damages suffered by You, whether direct or indirect, as a result of the malfunctioning of such Software, will be limited to OCS rectifying the malfunction, within a reasonable time and free of charge, provided that OCS is notified immediately of the damage or faulty execution of the Software.
3.2 This liability is completely excluded if You attempt to correct or allow third parties to correct or attempt to correct the Software without the prior written approval of Onsite.
3.3 Any other liability on the part of OCS arising from any cause whatsoever is specifically excluded. Without limiting the generality of the aforegoing, OCS shall not be liable for any delay, failure, breakdown, damage or injury caused by:
3.3.1 software, programs and support services supplied by or obtained by You without the consent or knowledge of Onsite; or
3.3.2 software or programs modified by You or any third party not authorised to do so in terms of the Agreement; or
3.3.3 the actions or requirements of any telecommunications or electricity authority or a supplier of telecommunications or electricity services or software.
3.4 In no event shall OCS be liable to You for loss of profits or for incidental, special or consequential damages arising out of or in connection with the Software or the delivery, installation, servicing, performance or use of it in combination with other computer software.
OCS warrants that:
4.1 the Software will perform substantially in accordance with the Software Documentation; and
4.2 Save as set out in clauses 4.1, all warranties, representations and guarantees relating to the Software and any other matter relating to these terms and conditions, including merchantability and fitness for purpose, and whether express or implied by statute, common law usage, or otherwise, are expressly excluded to the maximum extent permitted by law.
5. INTELLECTUAL PROPERTY
5.1 All Intellectual Property rights in the Software are owned by OCS and/or its Licensors.
5.2 You shall not question or dispute the ownership of such rights at any time during the continuation in force of the Agreement or thereafter.
5.3 OCS warrants that, to the best of its knowledge, the Software does not infringe upon or violate any Intellectual Property Rights of any third party.
Without prejudice to any other rights, OCS may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement. In such event, You must destroy all copies of the Software.
7.1 The clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in the interpretation of this Agreement.
7.2 Any reference in this Agreement to the singular includes the plural and vice versa.
7.3 Any reference in this Agreement to natural persons includes legal persons and references to any gender include references to the other genders and vice versa.
8. ENTIRE AGREEMENT AND VARIATIONS
8.1 This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
8.2 No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
8.3 Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this agreement.
9. ASSIGNMENT, CESSION AND DELEGATION
Neither of the Parties shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the other, which consent shall not unreasonably be withheld or delayed
No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right.
No waiver on the part of either party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
13. GOVERNING LAW
The validity and interpretation of this Agreement will be governed by the laws of the Republic of South Africa.