INTRODUCTION
The terms and conditions contained in this End-User License Agreement ("EULA") shall be enforceable and are valid and binding against all persons that access and/or use the Solution, access and/or use the Platform and/or use or receive any of the Services or any part thereof. The continued use and/or access to the Solution, Platform and/or Services shall be deemed to be consent and an acknowledgement by the User to be bound by and to this EULA and these terms and conditions.
1 DEFINITIONS AND INTERPRETATIONS
1.1 The clause headings in this document have been inserted for convenience only and not for interpretation purposes.
1.2 Reference herein to the singular includes the plural and vice versa.
1.3 The following defined terms shall, wherever used in this EULA, bear the corresponding meaning ascribed to them:
1.3.1 "Access Term" means the period during which the User is entitled to access and make use of the Platform and/or the Services and which shall be determined by the Services Agreement;
1.3.2 "Confidential Information" means all information or data relating to either Party, whether disclosed electronically, orally or in writing and includes, without limitation, any information relating to either Party's, business policies, business plans, pricing models, know-how, trade secrets, methods, specifications, drawings, designs, sketches, models, products, samples, customers and clients (both existing and potential), Intellectual Property, suppliers, technology, systems, demonstrations, processes and any other related material and documentation;
1.3.3 "Deliverables" mean the resulting products of the Solution, being the media, images, text, video, landing pages and all User branded elements, but specifically excludes any aspect and/or elements and/or Intellectual Property in the Solution and/or Platform, or the code or other processes that enable the Deliverables, as more fully detailed in this EULA;
1.3.4 "ECT Act" means the Electronic Communications and Transactions Act, No. 25 of 2002;
1.3.5 "Intellectual Property" means all software, source code, object code, utilities, tools, routines, interfaces, processes, methodologies, components, technologies, algorithms, techniques, designs, reports, trade secrets, formulae, ideas, inventions, programmer interfaces, specifications, know-how, clients and customers, drawings, concepts and documentation, regardless of whether Intellectual Property Rights actually inhere in any such items;
1.3.6 "Intellectual Property Rights" means any and all rights in and to the Intellectual Property, anywhere in the world (whether registered or unregistered) owned, possessed or controlled by either Party, directly or indirectly, including, without limitation, patents, trademarks, service marks, design rights, copyright (including all copyright in any designs and computer software), source codes, moral rights, database rights, trade, product or business names, whether capable of registration or not, but including any right to register same;
1.3.7 "Multiplied" means Multiplied Studio (Pty) Ltd, and its employees, and its subsidiaries and any affiliated companies and agents;
1.3.8 "Module" means a specific component of functionality of the Solution and/or the Platform;
1.3.9 "Personal Information" means the personal information of any person or entity accessing or using the Services, including, but not limited to:
1.3.9.1 names and/or surnames;
1.3.9.2 addresses, both physical and electronic;
1.3.9.3 non-specific browsing habits and patterns;
1.3.9.4 internet protocol addresses; and
1.3.9.5 any other information which may be provided through the User's use of the Services and/or the Platform.
1.3.10 "Platform" means the software, application and/or programs that are capable of delivering data-driven media, automated content, personalised messaging, video and web design, personalisation, automated rendering of data and information based on the User Content. The Platform shall include any website, network, infrastructure or platform owned and/or operated by Multiplied, the upload “Portal" to capture User Content when required; and all related Intellectual Property therein, subject to clause 9, comprised of various Modules;
1.3.11 "Privacy Policy" means the privacy policy of Multiplied as more fully detailed in clause 12 and as available on Multiplied’s website and as updated from time to time by Multiplied;
1.3.12 "Services" means any and all supporting actions required for the delivery of the Deliverables and the provision of the Solution and/or access to the Platform and associated services provided by Multiplied to the User;
1.3.13 "Services Agreement" means the user engagement and services agreement that is entered into between the User and Multiplied, or a third party acting for, or providing directly to the User, the Services from time to time;
1.3.14 "Solution" means collectively the specific Services or processes that come together to create the resulting Deliverables; these could be (but are not limited to) the storage, management, automation and processing of data into dynamic media, and the delivery and hosting of the technical and/or user experiences and also includes any integration to a User's systems to be able to deliver the Services, and includes any associated Intellectual Property therein;
1.3.15 "User" means any person and/or entity that accesses, receives and/or makes use of the Platform, Solution and/or the Services; and
1.3.16 "User Content" means:
1.3.16.1 any and all Personal Information;
1.3.16.2 any and all information, data, third-party data services, media, materials and/or images that are owned by, or lawfully licensed to, a User, and which the User is required to provide to Multiplied, via the Platform, in order for the User to make use of the Services;
1.3.16.3 any other lawfully available public and unprotected data and/or information that may be scraped from open sources; including any and all Intellectual Property and Intellectual Property Rights therein.
2. NOT A SALE
2.1 Under no circumstances should the provisions of this EULA be considered or interpreted as being a sale to, or purchase by, the User or any other entity of the Solution, Platform and/or Services, or other rights thereto.
2.2 Multiplied retains all Intellectual Property Rights in and to its Intellectual Property at all times as more fully detailed in, and subject to, clause 8 below.
2.3 For the avoidance of doubt, this is only a license of use in terms of, and as restricted by, the provisions of this EULA and Multiplied reserves all rights not expressly granted herein to the User.
3. LICENSE TO ACCESS
3.1 Multiplied hereby grants a non-exclusive, non-transferable licence to the User to access and make use of the Solution, Platform and/or the Services for the Access Term.
3.2 The User may also grant access to the Solution, Platform and/or Services to those of the User’s employees, directors, agents and subcontractors who require such access for the User’s internal business purposes, provided said persons agree to be bound to any and all terms and conditions, including this EULA, that the User would be bound to, and further that said persons adhere to the terms and conditions thereof at all times.
3.3 The User is solely responsible for securing and safeguarding their login information and data, including but not limited to usernames, passwords, one-time pins ("OTPS").
3.4 The costs and/or fees associated with the access, registration and use of the Services, shall be based on the Services Agreement.
3.5 Save to the extent to which the contrary is specifically provided for in this EULA, the licence granted to the User in terms of this EULA may not be transferred to any party without Multiplied’s prior written consent, and the User acknowledges that Multiplied may immediately terminate the Users access and use to the Platform, or the provision of the Services, including the licence, without liability, at Multiplied’s sole election, in the event that Multiplied is of the opinion that the User:
3.5.1 has failed to comply with any obligations imposed on it under this EULA;
3.5.2 has acted, or failed to act, in accordance with any applicable law;
3.5.3 has created, published and/or provided any inaccurate and/or misleading information; or
3.5.4 may, through its continued use of the Solution and/or Platform, create a negative public impression on Multiplied.
3.6 Multiplied will make reasonable commercial efforts to make the Solution, Platform and Services available for use by the User at all times, except where:
3.6.1 An interruption, irrespective of whether such interruption is scheduled or due to emergency circumstances, occurs; or
3.6.2 any event beyond the reasonable control of Multiplied disrupts the availability of the Solution, Services and/or the Platform, including, without limitation, any interruption to any third party service used by Multiplied in the supply of the Services, cyber infection, unauthorized access, power failure or any other event beyond the control of Multiplied.
4. DISCLAIMER AND LIMITATION OF LIABILITY
4.1 Multiplied shall not be liable for any damage, loss or liability of any nature incurred by whomever and resulting from any User's:
4.1.1 access to, or inability to access, and use of the Deliverables;
4.1.2 access, or inability to access, to and use of the Solution;
4.1.3 access, or inability to access, to and use of the Platform;
4.1.4 access, or inability to access, to and use of the Services;
4.1.5 access to, or inability to access, websites linked to the Platform;
4.1.6 content available on the Platform;
4.1.7 services available from the Platform;
4.1.8 downloads and use of content from the Platform; or
4.1.9 any other reason not directly related to Multiplied, or its agents’, gross negligence.
4.2 Further to the above, the User acknowledges and understands that Multiplied relies, from time to time, on services being provided to Multiplied by third parties in order to provide the Services to the User. As a result, Multiplied shall not be liable for any damage, loss or liability of any nature whatsoever, incurred by the User, or any third party on behalf of the User, as a result of any act or omission by any third party provider of services to Multiplied.
4.3 The User acknowledges and agrees that the Services have not been compiled to meet the User's individual requirements. It is the responsibility of the User to satisfy themselves, prior to using the Services that the Services meet the User's individual requirements and is compatible with the User's computer and/or other relevant systems’ hardware and/or software.
4.4 Information, ideas and opinions expressed through the Services should not be regarded as professional advice or the official opinion of Multiplied and the Users undertake to seek professional advice before taking any course of action related to the information, ideas or opinions expressed through the Services.
4.5 Multiplied does not make any warranties or representations that the content and Services available will in all cases be true, correct or free from any errors. Multiplied shall take all reasonable steps to ensure the quality and accuracy of content available from the Services, and Users undertake to report incorrect and untrue information, subject to the right of Multiplied to determine, in its sole and absolute discretion, the contents of the Services.
5. USE OF THE SERVICES
5.1 The User’s entitlement and access to or instances of the Services shall be as specified in the Services Agreement and any limitations and/or restrictions therein shall apply together with and be subject to the remaining provisions of this EULA.
6. PROHIBITED USE OF THE SERVICES
6.1 Save to the extent that same is provided for in this EULA, or as agreed between the Parties in writing, which may be effected by email, the content from the Solution, may not be used or exploited by Users for any commercial and/or non-private purposes in the absence of prior notice to Multiplied.
6.2 The User may not use or attempt to use any technology or functionality to search and/or copy content from the Solution for any purpose whatsoever, without the prior written consent of Multiplied.
6.3 The User may not at any time, during the subsistence of this Agreement, its Access Term or any time before or thereafter:
6.3.1 reverse engineer, deconstruct, decompile or otherwise modify or access the assets of the Deliverables and/or Solution, including but not limited to and without derogating from the generality of the aforegoing the code, HTML and/or other backend infrastructure and software of the Deliverables and/or Solution;
6.3.2 data mine, scrape, crawl, or use any robot or other automatic device, script, technology or process(s) that send automated queries to the Solution or use other similar methods or tools, to gather or extract content from the aforementioned;
6.3.3 modify the manner in which the Solution, is displayed by the User or any other user, nor may the User use any device, software or routine to interfere or attempt to interfere with the proper functioning or display of the Solution;
6.3.4 do or permit others to:
6.3.4.1 use such trademarks and copyrightable information in any way, except as expressly provided herein and by the owner thereto; or
6.3.4.2 remove, alter, cover or obscure any confidentiality, trade secret, proprietary or copyright notices, trade-marks or other intellectual property or identifying marks or designs from any component of the Deliverables and/or Solution and any information thereon;
6.4 Users may only access and use the Deliverables and/or Solution as provided for herein or as set out in the Services Agreement, and may not use the Deliverables and/or Solution for:
6.4.1 harmful purposes;
6.4.2 unlawful purposes;
6.4.3 reverse engineering the Solution and/or Platform and/or Services as more fully detailed in clause 6.3 above;
6.4.4 disclosing, sharing, or publishing material that may be offensive, unethical, defamatory (or harmful in any way whatsoever), regulated, copyrighted, incorrect, untrue, prohibited, infringing or damaging to any person; and/or
6.4.5 the creation, storage and sending of unsolicited commercial communications.
6.5 If any User uses the Deliverables and/or Solution and/or content therefrom or the Platform itself in breach of the provisions detailed herein:
6.5.1 Multiplied reserves the right to, without notice, terminate immediately the User’s access to and/or use of the Solution;
6.5.2 Multiplied reserves the right to claim damages from the User;
6.5.3 Multiplied reserves the right to institute criminal proceedings against the User; and/or
6.5.4 Multiplied shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the User or any third party who obtained any content from the User.
6.6 Hyperlinks from any third party sources to the Solution shall be directed to the home page of the Multiplied, determined by and at the sole discretion of Multiplied ("Home Page"). Links to any other pages and/or aspects of the Platform beyond the Home Page may only be used with Multiplied’s prior written consent.
6.7 In the event that the User makes use of or provides any links to content beyond the Home Page without permission, the User hereby indemnifies Multiplied against any loss, liability or damage that may result from such breach of this EULA, and shall do so at their own risk and indemnify Multiplied against any loss, liability or damage that may result from the use of the Services from the Platform, if such content was accessed through a hyperlink not directed at the home page of the Platform.
6.8 No person may frame any network associated to, or used in conjunction with, the Platform in any manner whatsoever, without the prior written consent of Multiplied.
6.9 Save to the extent that same may be necessary, in Multiplied's sole discretion, in order for Multiplied to provide the Services in accordance with this EULA, no information published in the Deliverables and/or via the Solution and/or on the Platform and/or through the Services may be incorporated into any database used for electronic marketing or similar purposes.
7. MULTIPLIED INTELLECTUAL PROPERTY RIGHTS
7.1 All licences and/or permissions granted in terms of this EULA are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Multiplied at any time without prior notice or reason.
7.2 All Intellectual Property Rights contained in the Solution, Platform and/or Services are the property of, or licensed to, Multiplied and as such, the User shall not acquire any right, title, and/or interest in or to Multiplied’s Intellectual Property save to the extent that same is provided for herein.
7.3 The User shall not be entitled to use any logos, icons, photos, pictures, graphics, trademarks or related content from the Solution, Platform and/or Services, excluding any User Content and/or Deliverables, for any reason whatsoever without Multiplied’s prior written consent, which consent shall be at Multiplied’s sole discretion.
7.4 Save for any instances of negligence or wilful misconduct by Multiplied, the User is solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any and all other damages resulting from the User’s use of or access to the Solution, Platform and/or Services and/or Deliverables.
8. USER CONTENT AND INTELLECTUAL PROPERTY
8.1 The User warrants that it has all necessary rights to supply the User Content to Multiplied.
8.2 All Intellectual Property Rights contained in the User Content and Deliverables, are the property of, or licensed to, the User and as such, the Multiplied shall not, subject to the remain provisions of this clause 9, or elsewhere in this EULA, acquire any right, title, and/or interest in or to the User Content.
8.3 The User hereby grants Multiplied a worldwide, non-exclusive, fully paid up, perpetual right to make use of the User Content and/or Deliverables, for the sole purposes of demonstrating and/or marketing the Solution, Platform and/or Services and its service offering to third parties, save that this right shall not apply to any Personal Information of any natural persons which is contained in any User Content.
8.4 Save for any instances of negligence or wilful misconduct by Multiplied, the User is solely liable for any damages resulting from a claim by a third party for any infringement of copyright, trademark, or other proprietary right, or any and all other damages resulting from Multiplied's use of the User Content and/or Deliverables.
9. SOFTWARE AND EQUIPMENT
It is the responsibility of the User to acquire and maintain, at its own expense, the necessary computer hardware, software, communication lines, systems and internet access accounts required to access and make use of the Solution, Services and/or Platform.
10. DISCLOSURES
10.1 It is recorded that the User's access to, and use of, the Platform may be classified as "electronic transactions" in terms of the ECT Act. As such, Multiplied has, amongst others, the duty to disclose the following information to the User, which the User hereby acknowledges and takes note of:
10.1.1 The full name and legal status of the Platform and Solution owner (or lawful licensee thereof): Multiplied Studio Proprietary Limited;
10.1.2 Registration Number: 2018/562333/07;
10.1.3 Physical Address: 80 Strand St, Cape Town City Centre, Cape Town, 8001;
10.1.4 E-mail address: hello@multiplied.co;
10.1.5 Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:
10.1.5.1 access to the Deliverables and/or Solution, its Platform and/or associated Services;
10.1.5.2 the inability to access the Deliverables and/or Solution, its Platform and/or associated Services; or
10.1.5.3 this EULA,
shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Johannesburg in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client;
10.1.6 Users may lodge complaints concerning the Platform and/or the Services at hello@multiplied.co. Users hereby cede and assign the copyright in such complaints to Multiplied and understand that Multiplied may use, disclose and publish such complaints and is furthermore under no duty to answer, address or resolve such complaints, which are made solely for Multiplied's internal processing, use and knowledge.
11. LAWFUL PROCESSING OF PERSONAL INFORMATION AND PRIVACY
11. 1 In order for Multiplied to provide the Services, it may be required to process, collect, store and/or otherwise process information, including personal information from the User from time to time.
11.2 All processing by Multiplied in terms of clause 12.1 shall be carried out in terms of Multiplied’s Privacy Policy, which is available at https://multiplied.co/privacy-policy.html, and which is freely accessible and as such it will be assumed by Multiplied that continued engagement with Multiplied by the User shall indicate the User is aware of, read an understood the Privacy Policy.
11.3 Multiplied shall take all reasonable steps as required by the Protection of Personal Information Act and the Promotion of Access to Information Act, to protect the Personal Information of Users that it collects or has access to through Users' use of and/or access to the Solution.
11.4 By using the Deliverables and/or making use of and/or accessing the Solution, the User hereby accepts and consents to the practices described in this clause as well as Multiplied’s Privacy Policy accessible on Multiplied’s website at https://multiplied.co and as set out in clause 12.2.
11.5 Where there is conflict between the terms of this clause 12 and the Privacy Policy, the Privacy Policy shall take precedence to the extent that such conflict exists.
11.6 The User further warrants that the information provided to Multiplied belongs to the User and is correct.
12. HYPERLINKS TO THIRD PARTY SITES
12.1 Multiplied may from time to time provide links to third party websites ("target sites"). Such links do not imply or constitute any endorsement, agreement on or support for the content of such target sites.
12.2 Multiplied shall not be liable, in any manner whatsoever, for the access to, inability to access or content available on or through such target sites, which access, and use shall be at the User's sole election and discretion.
13. SECURITY
13.1 Multiplied shall take all reasonable steps to secure the content of the Solution, and the User Content provided by, and collected from Users from unauthorised access and/or disclosure. However, Multiplied does not make any warranties or representations that such content shall be safe and/or secure from any and all threats, which the User acknowledges and understands.
13.2 Users may not deliver or attempt to deliver, whether intentionally or negligently, any damaging code or software, including, but not limited to, computer viruses, robots or spy ware, to the Deliverables and/or Solution and/or any networks that support the Platform or Services.
13.3 Notwithstanding criminal prosecution, in the event that the User delivers or attempts to deliver any damaging code to the Deliverables and/or Solution and/or its associated networks, whether intentionally or negligently, shall, without any limitation, indemnify and hold Multiplied harmless against any and all liabilities, damages, risks and losses that Multiplied and its partners and/or affiliates may suffer as a result of the Users actions.
13.4 Users may not develop, distribute or use any device or programme designed to breach or overcome the security measures implemented by the Company from time to time on the Platform, and Multiplied reserves the right to claim damages, whether indirect or direct, from any and all persons involved.
13.5 Users who commit any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable in accordance with this EULA for all liabilities, losses, destruction or damages suffered and/or incurred by Multiplied and its partners and/or affiliates due to such actions.
14. REMOVAL AND CORRECTION OF CONTENT
Users shall report any untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from or on the Platform or through its Services to Multiplied, and Multiplied undertakes to investigate such content and, if deemed necessary, at Multiplied's sole and absolute discretion, remove such content or any parts thereof.
15. TERMINATION
15.1 This EULA shall be perpetual until amended or superseded.
15.2 Multiplied may terminate this EULA, or terminate, suspend or restrict the User’s use of or access to the Solution, at any time, for any other reason (or for no reason), which termination, suspension or restriction may be with or without notice. Upon termination or suspension, the User’s right to access the Solution will immediately cease.
15.3 Multiplied may discontinue, temporarily or permanently, all or part of the Solution, with or without notice. If the User’s access to the Solution is suspended or terminated by Multiplied the User agrees to not attempt to access any of the same by any alias or other disguised or fraudulent identity or otherwise without Multiplied’s express prior written approval which may be granted or withheld in Multiplied’s sole discretion.
15.4 Multiplied reserves the right to terminate Services and suspend or restrict access to the Platform and/or Solution at any time with or without notice.
16. CHANGES AND AMENDMENTS
16.1 Multiplied reserves the right, in its sole and absolute discretion, to do any of the following, at any time and without prior notice or justification:
16.1.1 amend this EULA, or its terms;
16.1.2 amend the contents of the Solution, Platform and/or Services available;
16.1.3 discontinue any aspect and/or Module of the Solution, Platform and/or Services;
16.1.4 change the software and hardware required to access and make use of the Platform; and/or
16.1.5 to delete the Platform.
16.2 Any amendment and/or variation of this EULA shall be deemed to be in force and effect, and binding on the User, on the date of publication of such amended and/or varied EULA to the Platform, or such other location as stipulated by Multiplied.
17. ENTIRE AGREEMENT AND SEVERABILITY
17.1 This EULA shall take precedence over any other agreements, disclaimers and/or legal notices attached to any communications and/or postings received by Multiplied from the User.
17.2 No variation or waiver of any of this EULA will be binding or effectual for any purpose unless expressed in writing by a duly authorised representative of Multiplied, alternatively as published by Multiplied in terms of clause 17.2, and any such waiver will be effective only in the specific instance and for the purpose given.
17.3 Any failure by Multiplied to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision.
17.4 In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
18. AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT
The User and Multiplied agree that:
18.1 The User shall be bound to these Terms and such agreement is concluded in Cape Town (South Africa) at the time the User enters the Platform for the first time;
18.2 The User agrees and warrants that data messages as defined in the ECT Act addressed by the User to Multiplied shall only be deemed to have been received if and when responded to by Multiplied, provided that an automatically generated response received from and/or via the Platform shall not be deemed to be a reply;
18.3 Electronic signatures, encryption and/or authentication shall not be required for valid electronic communications between the User and Multiplied;
18.4 data messages that are sent to Multiplied from a computer, IP address or mobile device normally used by or owned by the User, shall be deemed to have been sent and/or authorised by the User personally; and
18.5 an email sent to the User by Multiplied, shall be deemed to have been received by the User when the User is capable of downloading the email.
19. APPLICABLE AND GOVERNING LAW
The Platform is controlled and operated within the Republic of South Africa and therefore, subject to the remainder of this EULA, the South African law enforced by the South African courts governs the use of, or inability to use, the Platform, its content, Services, and/or any products.
20. LEGAL COSTS
Multiplied, its agents and suppliers, shall not be liable for costs incurred by Users to obtain professional advice relating to this EULA.