TERMS OF MATERIAL USE
Tenthouse Structures Pte Ltd (202123910C) a private limited company duly incorporated in the Republic of Singapore, and Tenthouse Structures (Pty) Ltd (2018/832576/07) a limited liability private company duly incorporated in the Republic of South Africa, and their respective affiliates (together “Tenthouse”) and the Client as identified the supply agreement (together the “Parties”) have an existing commercial relationship under which it is permissible for the Client to make use of the Tenthouse Material (as defined) under limited circumstances. The purpose of this document (the “Terms of Use”) is to formalise and govern the permissible use of the Tenthouse Material by the Client. Insofar as any provision of these Terms of Use may be in conflict with a provision of another agreement between the Parties, these Terms of Use shall apply and take precedence in relation to permitted use of the Tenthouse Material between the Parties, while the provisions of the other agreement(s) shall apply and take precedence in all other circumstances.
1. INTERPRETATION
1.1. In these Terms of Use:
1.2. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Terms of Use; a reference to “person” shall include a natural or juristic or artificial person, including, without limitation, a firm, company, voluntary association, or partnership; the termination of these Terms of Use shall not affect such of the provisions of the Terms of Use which of necessity must continue to have effect after such termination, notwithstanding that the clauses themselves do not expressly provide for this; the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply.
1.3. “Copyright” means all rights of copyright subsisting in the Works as provided for in the South African Copyright Act no. 98 of 1978 or any similar or equivalent legislation in any jurisdiction in which the Parties operate or the Tenthouse Materials are to be used.
1.4. “Field” means non-commercial use of the Tenthouse Material in advertising, marketing or proportional materials of the Client, including electronic use thereof on any website, social media pages or similar communication media strictly within the field in which the Client operates.
1.5. “Tenthouse Materials” means the Copyright in artworks, video material and designs developed for and on behalf of the Client under any agreement between the Parties, including in particular the animated design, renderings and “walk through videos” developed by Tenthouse on behalf of the Client as part of any construction, build or implementation executed by Tenthouse on behalf of the Client.
1.6. “Territory” means any jurisdiction where Tenthouse holds statutory or common law copyright in the Tenthouse Material.
1.7. “Term” means the term commencing on the date of sharing these Terms of Use with the Client, and ending on the date on which the commercial arrangement between the Parties is terminated, or alternatively, on the date on which Tenthouse notifies the Client of the termination of the Terms of Use (whichever is earlier).
1.8. “Works” means any class of work (in particular artistic works) as defined under the South African Copyright Act No. 98 of 1978 (as amended) including all records, reports, documents, papers, drawings, designs, graphics, logos, typographical arrangements, fonts and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared, developed or created by or on behalf of the Client and included in the Tenthouse Materials. For clarity, the “Works” shall include any computer generated or manipulated works or creations.
2. USE GRANT
2.1. Subject to these Terms of Use Tenthouse herby grants to the Client with effect from the date of these Terms of Use being shared with the Client, and Client accepts, a limited, royalty-free, non-exclusive, non-transferable, non-sublicensable licence to use the Tenthouse Materials in the Territory for the Term in the Field.
2.2. The Parties acknowledge that the purpose of this Terms of Use is formalising the use arrangement of the Tenthouse Material by the Client in the Field, and no consideration is or shall therefore be due to Tenthouse in respect of the licence granted in terms of this Terms of Use.
2.3. The rights granted to the Client in terms of this clause shall terminate automatically upon termination of this Terms of Use.
3. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
3.1. Nothing in these Terms of Use grants or purports to grant or shall be interpreted to imply the assignment of or granting of any right, title or interest in the Tenthouse Material or any associated intellectual property rights to the Client.
3.2. The Client acknowledges that all right, title and interest in and to the Tenthouse Material vests in Tenthouse and that it has no claim of any nature in and to the Tenthouse Material or ancillary intellectual property rights. The Client shall not at any time during or after termination or cancellation of these Terms of Use dispute the validity or enforceability of such rights, or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of that right, title and interest of any of the Tenthouse Material which may be the subject of these Terms of Use and shall not counsel or assist any other person to do so.
3.3. The Client shall notify Tenthouse promptly in writing, giving full particulars, if any of the following matters come to its attention: any actual, suspected or threatened infringement of any of the Tenthouse Material included in this Terms of Use; any claim made or threatened that exploitation of the Tenthouse Material included in this Terms of Use infringes the rights of any third party; any other form of attack, charge or claim to which any Tenthouse Material included in this Terms of Use may be subject.
3.4. The Client acknowledges that these Terms of Use and any information related to use of the Tenthouse Material constitutes confidential information of Tenthouse and shall be treated as confidential, whether it is indicated as such or not. For clarity, any discussions, conversations or disclosures relating to the Tenthouse Material or the commercial arrangements under this Terms of Use will constitute confidential information and will be treated as such.
3.5. Tenthouse makes no representations or warrantees of any kind and disclaims all express or implied obligations, warranties and liabilities, regarding the Tenthouse Material including but not limited to: its fitness for merchantability or any other particular purpose; infringement of third party intellectual property; or Tenthouse’s proprietorship or title.
4. USE OF THE TENTHOUSE MATERIAL
4.1. The Client shall not use the Tenthouse Material in a manner that is abusive or detrimental to its distinctive nature or may jeopardise Tenthouse’s rights in the Tenthouse Material. The Client will not alter or modify the Tenthouse Material in any way, or make any adaptations or reverse engineer the Tenthouse Material.
4.2. The Client shall not under any circumstances use the Tenthouse Material in such a way that it competes with the Tenthouse business, which shall include but not be limited to: the Client refraining from sharing any “raw files” with any third party; the Client using the Tenthouse Material through any other service provider to develop or erect any similar structures to those depicted in the Tenthouse Material; the Client shall not anywhere in the Territory, whether directly or indirectly, and whether alone or together with or as an agent for any other person, partnership, company, body corporate or association of any nature whatsoever utilise the Tenthouse Material in a manner which may have an adverse effect on the Tenthouse business or its commercial objectives.
5. TERMINATION
5.1. These Terms of Use shall automatically terminate on the date of termination of the commercial relationship between Tenthouse and the Client.
5.2. Either Party may further terminate or cancel this Terms of Use at any time, and without having to justify of explain its reasoning, on written notice to the other Party.
5.3. Upon termination of the license granted in these Terms of Use all rights of the Client to use the Tenthouse Material shall terminate immediately, and the Client shall discontinue immediately all use of the Tenthouse Material, or any imitation thereof in or on any medium; delete the Tenthouse Material from or at the discretion of Tenthouse, destroy all unused documentation or other items bearing any of the Tenthouse Material.
6. GENERAL
The validity and interpretation of this Terms of Use will be governed by the laws of the Republic of South Africa. It is and will remain the obligation of each Party to comply with any applicable law relating to this Terms of Use or use of the Tenthouse Material. The Client shall not without the prior written consent of Tenthouse cede, assign, transfer or otherwise make over the rights hereby granted either wholly or in part to any third party. If any provision of this Terms of Use is held to be illegal, invalid or unenforceable, such provision shall be eliminated to the extent that it is illegal, invalid or unenforceable without invalidating the remainder of such provision or the remaining provisions of this Terms of Use. This Terms of Use supersedes all previous oral and written agreements, if any, among the Parties regarding the use of the Tenthouse Material and expresses the entire agreement between the Parties with respect to the use of the Tenthouse Material. Any modifications of or changes to this Terms of Use shall be in writing and signed by Tenthouse. Unless otherwise provided in these Terms of Use, all notices, required under this Terms of Use shall be in writing and shall be effective for all purposes upon receipt. Failure to enforce any provisions of these Terms of Use shall not constitute a waiver of any term hereof. Each of the provisions in this Terms of Use is severable from all others, notwithstanding the manner in which they may be linked together grammatically or otherwise. This Terms of Use are extended electronically by Tenthouse and constitutes a binding agreement between the Parties without any additional signature required – by making use of the Tenthouse Material in any manner whatsoever the Client acknowledges that it is bound by these Terms of Use.