> Terms of Service
1.1 The following expressions have the following meanings:
FE Studio hereby grants Customer a non-exclusive, non-transferable, worldwide right to access and use the Platform, Application and the Service, solely for Customer’s own internal business purposes, subject to this Agreement. All rights not expressly granted to you are reserved by FE Studio, its parent, affiliates and licensors.
Customer shall not:
Any rights granted to the Customer under this Agreement cannot be shared, accessed or used by more than one individual user of Customer. However, the designated user may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the Platform, Application, or the Service. The Platform may only be used by the Customer’s authorized user.
Customer may use the Platform, Application, or the Service only for Customer’s internal business purposes and shall not:
Customer acknowledges and agrees that it has no right to access the object code or source code of the Platform, either during or after the Term. Customer shall not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
Customer agrees not to use the Platform in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Any advertising of the Platform, Application, or the Services on FE Studio’s website constitutes a solicitation and not an offer. Your order for the Platform and the Services constitutes an offer to FE Studio to contract. No contract will come into force between FE Studio and Customer until A Statement of Services has been agreed to by Customer and FE Studio. In order to enter into the Agreement, You must take the following steps:
Upon acceptance, Customer will be able to choose whether to pay for each order delivered as “available for download” under the Statement of Services for the Application Packaging Service on a Pay-As-You-Go basis following invoice at the end of each calendar month, or a monthly or annual settlement to be invoiced monthly or annually in advance for the right to use the Packaging Tool, Catalogue, Monitor, Maintenance or Maintenance Plus services.
FE Studio will send You a counter-signed Statement of Services thereby creating a binding contract. Alternatively, FE Studio will reject your offer and no contract will be formed.
Upon acceptance, the contract will continue in force for the agreed duration and automatically renew thereafter unless terminated in accordance with this Agreement.
FE Studio will provide access to the Platform and/or copies of the Application to You by as soon as practicable following the Effective Date.
Customer may use the Application strictly in accordance with any documentation provided and only for Customer’s internal business purposes.
Customer agrees that it shall not:
Customer agrees and acknowledges that all intellectual property rights in and to the Application is the exclusive property of FE Studio.
During the duration of this Agreement, FE Studio will provide customer support services (“Support Services”) to Customer. FE Studio may apply upgrades to the Platform and the Application, in accordance with this Agreement from time to time.
You agree that FE Studio may sub-contract Support Services without the need to obtain any future consent from Customer.
From time to time FE Studio and You may agree that FE Studio will customize the Platform and/or the Application in accordance with specifications agreed in writing using the change control procedure (“Change Procedure”) set forth below.
From the time when a customization is first made available to Customer (“Customization Date”), the customization shall form part of the Platform or Application where appropriate under this Agreement. Accordingly, from the Customization Date, the rights to use the customization shall be governed by this Agreement.
All Intellectual Property Rights in and to any Customization shall be the exclusive property of FE Studio.
Customer agrees to provide FE Studio with:
You agree to be responsible for procuring any third-party co-operation required by FE Studio to enable FE Studio to fulfil any of its obligations.
You hereby grant FE Studio a non-exclusive license to store, copy and otherwise use Your Materials, constituting of source media, discovery output, completed application packages (optionally) a copy of your base image, for the purposes of operating the Platform, Application and providing the Services. All intellectual property rights in Your Materials will remain the property of Customer.
You warrant and represent to FE Studio that Your Materials, and their use by FE Studio in accordance with the terms of the Agreement, will not:
FE Studio shall cause Your Materials to be stored and processed by the Platform and Application separately from, and are not co-mingled with, any of the materials of other customers of FE Studio.
The provisions of this section apply to any customization requested by Customer or FE Studio. Either party may request a change at any time.
When requesting a change, the requesting party will notify the other party and provide a “Change Control Notification” (“CCN”). The CCN will set out, at a minimum, the following details:
The other party will consider any proposed change within the CCN Consideration Period.
Either party may:
Following the agreement of a CCN, each party will confirm the same to the CCN by:
Until a CCN recording a proposed change has been signed or agreed to in writing by each party, the proposed change will not take effect.
Customer agrees to be liable for all activity occurring under your user account(s) and agrees to abide by all applicable local, state and Federal and foreign laws, if any, in connection with Customer’s use of the Service, including, but not limited to, data privacy, international communications, and the transmission of technical and personal data.
Customer agrees to:
FE Studio does not own any data, content, information or material, that You submit to the Platform in the course of accessing and using the Service (“Customer Data”). You agree to have sole liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. You agree that FE Studio shall not be liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), FE Studio will make available to you a file of Customer Data within thirty (30) days of termination if requested at the time of termination. FE Studio reserves the right to withhold, remove and/or delete any or all Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases. FE Studio shall have no obligation to maintain or forward any Customer Data upon termination for cause.
Customer agrees and acknowledges that FE Studio, (and its parents, subsidiaries, and/or licensors) own all right, title and interest, including all related intellectual property rights, in and to the Platform, Application, Services and related documentation and materials. You agree that any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or your agents relating to the Platform, Application Services, and related documentation and materials shall be conveyed, granted, and owned by FE Studio from You.
Nothing in this Agreement conveys to You any rights of ownership or title in or to the Service, the Platforms, the Application, or related documentation or materials, or any intellectual property rights owned by FE Studio. The FE Studio name, the FE Studio logo, and the product names associated with the Service, the Platform, and Application are trademarks of FE Studio or licensed by FE Studio from its parent affiliate and/or third parties. No right or license is granted to You to use them in any way.
Charges and fees are payable upon receipt of invoice. Customer shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.
All payment obligations are non-cancellable. All amounts paid are non-refundable. You are responsible for paying for all user rights ordered for the entire duration of the Agreement, whether or not such user rights are actively being used. An Authorized License Administrator may add user rights by executing an additional written order. Added user rights are subject to the following:
FE Studio reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer. Said notice may be provided by e-mail. All pricing terms are confidential. You agree not to disclose any pricing terms to any third party.
Any initial setup and training fees shall be subject to separate negotiation and shall be due to be paid upon delivery.
FE Studio shall issue an invoice for each billing as stated herein. FE Studio’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be liable for payment of all such taxes, levies, or duties. You agree to provide FE Studio with complete and accurate billing and contact information during the duration of this Agreement.
Billing and contact information includes Customer’s legal entity name, street address, e-mail address, and name and telephone number of an authorized billing contact and Authorized License Administrator. Customer agrees to update said information within thirty (30) days of any change.
If the contact information you have provided is false or fraudulent, FE Studio reserves the right to terminate your access to the Platform, Application, and Service. If You believe Your bill is incorrect, You must contact FE Studio in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to FE Studio herein, as well as any additional rights and legal remedies available by law, you agree that FE Studio has the right to suspend or terminate this Agreement and your access to the Platform, Application, and Service if Your account becomes 30 days past due. Past due amounts are subject to an interest rate of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all costs and attorneys’ fees of collection.
You agree to be liable for all charges and fees for any period of suspension.
Upon termination of this Agreement, You agree to pay the total balance due on Your account computed in accordance with the foregoing sections. You agree to be liable for unpaid fees in addition to any additional fees and charges as they fall due. You agree to pay any reconnection fee charged by FE Studio in the event of suspension and thereafter request access to the Platform and Service. You agree and acknowledge that FE Studio has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is thirty (30) days past due.
This Agreement commences on the Effective Date as detailed on the Statement of Services.
The Initial Term shall be as set forth in an order on the FE Studio website. Either party may terminate this Agreement or reduce the number of users, effective only upon the expiration of the then current user Term, by notifying the other party in writing at least one (1) month prior to the date of the requested termination. In the event this Agreement is terminated (other than by reason of a customer breach), You agree and acknowledge that FE Studio has no obligation to retain the Customer Data, and may delete such Customer Data, more than thirty (30) days after termination.
Any breach of a payment obligation or any unauthorized use of the Platform, Application, or Service shall be deemed a material breach of this Agreement. FE Studio, in its sole discretion, may terminate your password, account or use of the Platform, Application, or Service due to Customer’s noncompliance with this Agreement.
Customer agrees and acknowledges that FE Studio has no obligation to retain Customer Data, and may immediately delete such Customer Data, for any breach of this Agreement, including but not limited, to Customer’s failure to pay outstanding charges or fees, and such breach has not been cured within thirty (30) days of notice of such breach.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. FE Studio represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof [and that the Service will perform substantially in accordance with the online FE Studio help documentation under normal use and circumstances.]
Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Platform, Application, or Service and that its billing information is true, accurate, and correct. Customer also warrants and represents that it has the full rights to grant FE Studio access to and to manage on Your behalf any third-party software for which FE Studio will be providing Services hereunder.
You shall indemnify and hold FE Studio, its licensors and each such party’s parent, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
FE Studio shall indemnify and hold You harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
FE Studio shall have no indemnification obligation, and You shall indemnify FE Studio pursuant to this Agreement, for claims arising from any intellectual property infringement arising from the combination of the Platform, Application, and Service with any of Your or third-party products, service, hardware or business process(s) used by You.
FE STUDIO, ITS PARENTS, AFFILIATES, AND LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM, APPLICATION, OR SERVICE OR ANY RELATED CONTENT OR DOCUMENTATION AND DO NOT REPRESENT OR WARRANT THAT THE USE OF THE PLATFORM, APPLICATION, OR SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THAT THE PLATFORM, APPLICATION, OR SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR
THAT THE PLATFORM OR THE SERVICE, INCLUDING THE SERVER(S) THAT MAKE THE PLATFORM AND SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE PLATFORM, APPLICATION, AND SERVICE AND ALL CONTENT, MATERIALS, AND DOCUMENTATION IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FE STUDIO, ITS PARENT, AFFILIATES, AND ITS LICENSORS.
THE PLATFORM OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS ANND THEREFORE FE STUDIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Subject to the agreement of the parties, if any dispute or difference shall arise between FE Studio and You on any matter relating to or arising out of the Agreement, such a dispute shall be referred to the arbitration of a single Arbitrator to be agreed upon by the parties or failing agreement to be appointed by the then President of the Law Society of South Africa.
Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings.
Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
The Agreement shall be governed by and construed in accordance with the laws of South Africa. Any dispute concerning it or its interpretation shall be adjudicated in that Jurisdiction.
FE Studio may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in FE Studio’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in FE Studio’s account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email).
FE Studio reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Platform, Application, or Service at any time, effective upon posting of an updated version of this Agreement on the Service. You agree to be responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without the prior written approval of FE Studio but may be assigned without your consent by FE Studio to a parent or subsidiary, or an acquirer of assets, or a successor by merger.
Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of FE Studio directly or indirectly owning or controlling fifty percent (50%) or more of you shall entitle FE Studio to terminate this Agreement for cause immediately upon written notice.
References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
FE Studio will make available, during Business Hours, a live chat and email helpdesk facility for the purposes of: assisting You with the configuration of the Platform and the integration of the Platform with Your other systems; assisting You with the proper use of the Platform; and/or determining the causes of errors and fixing errors in the Platform.
You must make all requests for Support Services through the helpdesk, and all such requests must include at least the following information:
1.3 Response and Resolution Times.
FE Studio will respond to requests for Support Services made through the helpdesk and resolve issues raised by You, promptly based on a reasonable effort within 24-48 hours during Business Days.
FE Studio, in its sole discretion, will determine what constitutes reasonable efforts and in to which severity category an issue raised through the Support Services falls. All Support Services will be provided remotely unless expressly agreed otherwise by FE Studio.
1.4 Limits on Support Services.
Where the total person-hours spent by FE Studio performing the Support Services during any week exceed eight (8) hours, then FE Studio will cease to have an obligation to provide those Support Services to You during that period; providing that FE Studio may provide additional Support Services to You during that period, but the provision of such Support Services will be subject to payment by Customer of additional Charges at FE Studio’s standard hourly rate[s] in effect from time to time.
FE Studio shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:
You acknowledges that from time to time during the Term FE Studio may apply Upgrades to the Platform, and that such Upgrades may result in changes to the appearance and/or functionality of the Platform.
No Upgrade shall disable, delete or significantly impair the Protected Functionality.
FE Studio will give to You reasonable prior written notice of the application of any significant upgrade to the Platform.
You shall not be subject to any additional Charges arising out of the application of the upgrade, where:
1.6 Uptime Commitment.
FE Studio shall use reasonable endeavors to ensure that the Platform is available ninety-eight percent (98%) of the time during Business Days each calendar month; provided the platform is affected by factors within our jurisdiction.
In the event that, during a calendar month, the Platform fails to meet the availability commitment set out in Paragraph 1.6, then Customer has the right to terminate the Agreement upon written notice.
The maximum service credits available to You in respect of any calendar month shall be the total Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of VAT and other taxes).
1.7 Back-up and Restoration.
FE Studio will: back up Customer Data stored on the Platform and will retain such back-ups for at least one (1) year; and at least once every two (2) weeks. FE Studio will arrange for the off-site storage of a current back-up of Customer Data stored on the Platform (which will be over-written on the following off-site back-up date).
In the event of the loss of, or corruption of, Customer Data stored on the Platform, FE Studio shall if so directed by Customer in writing use reasonable endeavors to restore Customer Data from the most recent available back-up.
1.8 Scheduled Maintenance.
Customer agrees that FE Studio may suspend access from time to time to the Platform in order to carry out scheduled maintenance. Such maintenance to be carried out outside regular business hours and such suspension to be for not more than twelve (12) hours in each calendar month.
FE Studio shall give to You at least five (5) Business Days notice of schedule maintenance, including any details of the expected Platform downtime.
Platform downtime during scheduled maintenance carried out by FE Studio in accordance with this Paragraph 1.8 shall not be counted as downtime for the purposes of Paragraph 1.6.
References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
The Charges under this Agreement shall consist of the charges identified in the Statement of Services at the time of order acceptance by FE Studio and may consist of the following elements:
This Use Policy
This Acceptable Use Policy (the “Use Policy”) sets out the rules governing the use of our web (the “Service”) and any content that you may submit to the Service (“Content”).
By using the Service, you agree to the rules set out in this Use Policy. You expressly agree to the rules set out in this Use Policy.
You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.
You must not use the Service in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
FE Studio grants to You a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, publish, adapt, translate and distribute Your repackaged Content in any existing and future media.
Unlawful and Illegal Material
Customer agrees to not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against You or us or a third party (in each case in any jurisdiction and under any applicable law).
Content (and its publication on the Service) must not:
Customer agrees to not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.
Customer agrees not to submit content that depicts violence in an explicit, graphic or gratuitous manner or that is pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.
Customer agrees to not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.
Customer agrees to not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.
Customer agrees that content will not be untrue, false, inaccurate or misleading and that statements of fact contained in the Content must be true; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true.
Customer agrees that content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause: illness, injury or death; or any other loss or damage.
Marketing and Spam
Customer agrees to use the Service only for purposes related to marketing, advertising, promotion, or the supply and/or sale of goods and/or services and that the content will not constitute spam.
Customer agrees to not use the Service to transmit or send unsolicited commercial communications and not use the Service to market, distribute or post chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar schemes, programs or materials.
Customer agrees to not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions, or any gambling-related activity.
Customer agrees to not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.
Content must be appropriate, civil, tasteful and in accord with generally accepted standards of etiquette and behavior on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
Content should not cause annoyance, inconvenience or needless anxiety.
Customer agrees not to flame or conduct flame wars on the Service (“flaming” is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).
Customer agrees not to troll on the Service (“trolling” is the practice of deliberately upsetting or offending other users).
Customer agrees not to flood the Service with Content focusing upon one particular subject or subject area, whether alone or in coordination with other users.
Customer agrees to use appropriate and informative titles for all Content and to be courteous and polite to other Service users.
Breaches of this Policy
You agree that FE Studio has the right to edit or remove any Content in its sole discretion for any reason, without notice or explanation. If Customer breaches this Use Policy in any way, or if we reasonably suspect that you have breached this Use Policy in any way, we may:
Notwithstanding the provisions of this Use Policy, we do not actively monitor Content.
If you become aware of any material on the Service that contravenes this Use Policy, You agree to notify FE Studio by email.
If you have any questions about this notice or our treatment of your personal information, please write to us by: E-mail to firstname.lastname@example.org or by post to: Manguzi, ZA: FE Studio, PO Box 547, KWANGWANASE, KZN, ZA, 3973; or Freedom Entertainment, Durban, ZA: J747, Ukhozi Road, Durban, KZN, ZA, 4031.
We’ll make sure to only send intersting info, no crappy content or marketing fluff. Just the good stuff, promise!