Master Subscription Agreement

“GANOOSH” (HEREAFTER REFERRED TO AS “THE SERVICE”) IS A SOFTWARE APPLICATION WITH ASSOCIATED SERVICES WHICH IS OWNED, DEVELOPED AND PROVIDED BY HEBRON CHANGE ENABLEMENT SERVICES (PTY)LTD (HEREAFTER REFERRED TO AS “HEBRON”).

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS A CUSTOMER’S ACQUISITION AND USE OF THE GANOOSH SOFTWARE APPLICATION & SERVICES.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Hebron’s direct competitors within the sphere of the GANOOSH APPLICATION are prohibited from accessing the Service and Application, except with Hebron’s prior written consent. This Agreement was last updated on April 29, 2020. It is effective between Customer and Hebron as of the date of Customer’s accepting this Agreement.

DEFINITIONS
• “Agreement” means this Master Subscription Agreement.
• “Beta Services” means GANOOSH services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
• “Content” means information obtained by GANOOSH from publicly available sources or its third-party content providers and made available to Customer through the Services, Application, Beta Services or pursuant to the Order Form, as more fully described in the Documentation.
• “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into this Agreement.
• “Affiliate” means any entity or individual that directly or indirectly controls, is controlled by, or is under common control with the subject entity (i.e. “Customer”).
• “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity (i.e. “Customer”).
• “Customer Data” means electronic data and information submitted by or for Customer to the GANOOSH Application and Services.
• “Free Services” means Services that Hebron makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
• “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
• “Order Form” means an ordering document or online order specifying the Service to be provided hereunder that is entered into between Customer and Hebron or any of their Affiliates, including any addenda and supplements thereto for the use of the GANOOSH application and services. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
• “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial (as applicable).
• “Services” mean the products and services that are ordered by Customer under an Order Form or online order mechanism or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Hebron, including associated Hebron offline or mobile components, as applicable.
• “Optional Services” mean services or features that Hebron may offer from time to time which is over and above the core GANOOSH functionality. Optional Services will have a separate fee structure as and when made available and selected by Customer on the Order Form.
• “Services” exclude Content and Non-GANOOSH
• “Hebron” means the Hebron Change Enablement Services (Pty)Ltd company described in the “Hebron Contracting Entity, Notices, Governing Law, and Venue” section below.
• “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription. Users may include, for example, teachers, contractors, agents, staff of Customer, and third parties (e.g. parents & caregivers) with which Customer transacts business.

1. HEBRON RESPONSIBILITIES
   • Provision of Purchased Services.
     Hebron will (a) make the Services and Content (i.e. GANOOSH) available to Customer applicable to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Hebron standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased (as applicable), (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Hebron shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Hebron’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Hebron employees), Internet service provider failure or delay, Non-Hebron Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Hebron’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
   • Protection of Customer Data.
     Hebron will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in this Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer and/or Users)
   • Hebron Personnel.
     Hebron will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Hebron’s obligations under this Agreement, except as otherwise specified in this Agreement.
   • Beta Services.
     From time to time, Hebron may make Beta Services relating to GANOOSH available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the Beta Services terms to be published with each BETA Service release.
   • Free Trial.
     If Customer registers on the GANOOSH or an Affiliate’s website for a free trial (as applicable) for the GANOOSH service, Hebron will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Hebron in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
     
     ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., SKY EDITION TO HAPPY EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
   • Free Services.
     Hebron may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation and as applicable. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Hebron, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Hebron will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Hebron terminates Customer’s account, except as required by law Hebron will provide Customer a reasonable opportunity to retrieve its Customer Data.
     
     NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY “HEBRON” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND HEBRON SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES.
2. USE OF SERVICES AND CONTENT
   • Subscriptions.
     Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing mechanism, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Hebron regarding future functionality or features.
   • Usage Limits.
     Services and Content including optional services or free services are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Hebron may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Hebron’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Hebron’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
   • Customer Responsibilities.
     Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Hebron promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Hebron Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Hebron’s judgment threatens the security, integrity or availability of Hebron’s services, may result in Hebron’s immediate suspension of the Services, however Hebron will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
   • Usage Restrictions.
     Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Hebron Application to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Hebron intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
   • Removal of Content and Non-Hebron Applications.
     If Customer receives notice that Content must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Hebron’s judgment continued violation is likely to reoccur, Hebron may disable the applicable Content, Service and/or Non-Hebron Application. If requested by Hebron, Customer shall confirm such deletion and discontinuance of use in writing and Hebron shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Hebron is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Hebron may discontinue Customer’s access to Content through the Services.
3. NON-HEBRON PRODUCTS AND SERVICES
   • Non-Hebron Products and Services.
     Hebron or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Hebron Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Hebron provider, product or service is solely between Customer and the applicable Non-Hebron provider. Hebron does not warrant or support Non-Hebron Applications or other Non-Hebron products or services, whether or not they are designated by Hebron as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Hebron is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Hebron Application or its provider.
   • Integration with Non-Hebron Applications.
     The Services may contain features designed to interoperate with Non-Hebron Applications. Hebron cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Hebron Application ceases to make the Non-Hebron Application available for interoperation with the corresponding Service features in a manner acceptable to Hebron.
4. FEES AND PAYMENT
   • Fees.
     Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form. Fees consist of the following components and terms:
     • The fee associated with the Subscription option selected on the Order Form by Customer. This includes:
       • The fee associated with the “Usage” of GANOOSH. “Usage” refers to the number of learners enrolled on the GANOOSH platform by the facility as at close of business (17:00) on the 25th of each month or the first business day following the 25th for the duration of the subscription.
       • The fee(s) associated with any optional service(s) and/or feature(s) (e.g. Customisation feature, SMS Notification feature, etc.) selected by Customer on the Order Form or any addendum to the Order Form;
       • The fee associated with an optional service or feature will either be calculated monthly based on usage or a fixed monthly fee depending on the nature of the feature or service as indicated on the Order Form or addendum.
     • Payment obligations are non-cancellable and fees paid are non-refundable.
     • All fees are calculated (where applicable) and charged in advance (for the coming month).
     • Learners enrolled onto the GANOOSH platform by the facility during the course of the month (i.e. any working day up to close of business (17:00) on the 25th of each month or the first working day after the 25th) will only be activated at the start of the following month and invoice cycle.
   • Invoicing and Payment.
     • Customer will provide Hebron with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Hebron.
     • If Customer provides credit card information to Hebron, Customer authorizes Hebron to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the Order Form as applicable.
     • Charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form.
     • Invoices will be created and distributed on or before the last working day of every month.
     • Invoiced fees associated with usage will be calculated with data (i.e. number of learners enrolled onto the GANOOSH platform) gathered by Hebron as at close of business (17:00) on the 25th of each month or the first business day following the 25th.
     • Invoice fees will be calculated on a pro-rata basis for the month in which the GANOOSH subscription is activated.
     • Invoices will be distributed via email to the Customer email address as specified on the Order Form or to a changed email address as confirmed by Customer in writing.
     • If the Order Form specifies that payment will be by a method other than a credit card, Hebron will invoice Customer in advance on or before the last working day of every month and otherwise in accordance with the relevant Order Form.
     • Unless otherwise stated in the Order Form, invoiced fees are due net 5 working days from the invoice date.
     • Customer is responsible for providing complete and accurate billing and contact information to Hebron and notifying Hebron of any changes to such information.
   • Overdue Charges.
     If any invoiced amount is not received by Hebron by the due date, then without limiting Hebron’s rights or remedies, (a) those charges may accrue late interest at the rate of the maximum rate permitted by law, and/or (b) Hebron may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
   • Suspension of Service and Acceleration.
     • Customer will provide Hebron with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Hebron.
     • If any charge owing by Customer under this or any other agreement for services is 5 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Hebron to charge to Customer’s credit card), Hebron may, without limiting its other rights and remedies and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Hebron will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
   • Payment Disputes.
     Hebron will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. All payment disputes and queries can be sent to GANOOSH administration on its generally available contact details.
   • Taxes.
     Hebron's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added tax, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. For clarity, Hebron is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES
   • Reservation of Rights.
     Subject to the limited rights expressly granted hereunder, Hebron, its Affiliates and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
   • Access to and Use of Content.
     Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
   • License by Customer to Use Feedback.
     Customer grants to Hebron and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Hebron’s or its Affiliates’ services (i.e. GANOOSH).
6. CONFIDENTIALITY
   • Definition of Confidential Information.
     “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Hebron includes the Services and Content (i.e. GANOOSH), and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of Hebron services.
   • Protection of Confidential Information.
     As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Hebron may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Hebron Application Provider to the extent necessary to perform Hebron’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
   • Compelled Disclosure.
     The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
   • Representations.
     Each party represents that it has validly entered into this Agreement and has the legal power to do so.
   • Hebron Warranties.
     Hebron warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Hebron will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Hebron Applications” (as applicable) section above, Hebron will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
   • Disclaimers.
     EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
8. MUTUAL INDEMNIFICATION
   • Indemnification by Hebron.
     If Hebron receives information about an infringement or misappropriation claim related to a Service, Hebron may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Hebron’s warranties under “Hebron Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Hebron, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-Hebron Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
   • Indemnification by Customer.
     Customer will defend Hebron and its Affiliates against any claim, demand, suit or proceeding made or brought against Hebron by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Hebron Application provided by Customer, or (c) the combination of a Non-Hebron Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Hebron”), and will indemnify Hebron from any damages, attorney fees and costs finally awarded against Hebron as a result of, or for any amounts paid by Hebron under a settlement approved by Customer in writing of, a Claim Against Hebron, provided Hebron (a) promptly gives Customer written notice of the Claim Against Hebron, (b) gives Customer sole control of the defense and settlement of the Claim Against Hebron (except that Customer may not settle any Claim Against Hebron unless it unconditionally releases Hebron of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Hebron arises from Hebron’s breach of this Agreement, the Documentation or applicable Order Forms.
9. TERM AND TERMINATION
   • Term of Agreement.
     This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
   • Term of Purchased Subscriptions.
     The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
   • Termination.
     A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
   • Refund or Payment upon Termination.
     If this Agreement is terminated by Customer in accordance with the “Termination” section above, Hebron will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Hebron in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Hebron for the period prior to the effective date of termination.
   • Surviving Provisions.
     The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers, “Refund or Payment upon Termination,” “Removal of Content and Non-Hebron Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Hebron retains possession of Customer Data.
10. ENERAL PROVISIONS
    • Export Compliance.
      The Services, Content, other Hebron technology, and derivatives thereof may be subject to export laws and regulations. Hebron and Customer each represents that it is not named on any government denied-party list. Customer will not permit any User to access or use any Service or Content in violation of any South African law or export regulation.
    • Anti-Corruption.
      Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
    • Entire Agreement and Order of Precedence.
      This Agreement is the entire agreement between Hebron and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
    • Relationship of the Parties.
      The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
    • Third-Party Beneficiaries.
      There are no third-party beneficiaries under this Agreement.
    • Waiver.
      No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
    • Severability.
      If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
    • Assignment.
      Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Hebron will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    • Contracting Entity, Notices, Governing Law, and Venue.
      Hebron is the contracting entity with which Customer contracts when obtaining licences for the use of GANOOSH. By entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit will be that of the Republic of South Africa.
    • Manner of Giving Notice.
      Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer (as applicable).