MASTER SAAS SUBSCRIPTION AGREEMENT

DEEP LEARNING CAFE PROPRIETARY LIMITED

Registration number 2018/302658/07 | (“Provider”)

Effective date: 19 August 2021

1

GRANTING OF RIGHTS

  1. By executing an order form of the Provider that references this Agreement, the Customer agrees to the terms of this Agreement.

  2. Provided the Customer adheres to the terms in this Agreement, the Provider grants to the Customer the right to access and use the Services.

2

RIGHT, TITLE, AND INTEREST IN AND TO THE SERVICES

  1. The Provider retains all right, title, and interest in and to the Services, including all software included in and used to provide the Services and all logos and trademarks reproduced through the Services.

  2. This Agreement does not grant the Customer:

    1. any right to reproduce, modify, distribute, or publicly display or perform the software included in the Services; or

    2. any other right to the Services not specifically stipulated in this Agreement.

3

SUBSCRIPTION

  1. Unless otherwise provided in the order form:

    1. access to Services is purchased as subscriptions for the term stated in the order form;

    2. subscriptions for 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 when the subscriptions are added, and

    3. any added subscriptions will terminate on the same date as the underlying subscriptions.

  2. The Customer must not:

    1. Third parties. Make available the SaaS to any third-party;

    2. Disassembly. Disassemble or modify the SaaS;

    3. Reverse engineer. Reverse engineer, modify, or create derivate works of the SaaS;

    4. Laws. Use the SaaS in violation of applicable laws;

    5. Security. Secircumvent or disable any security features or other aspect of the SaaS;

    6. Access. Attempt to gain unauthorised access to the source code of the SaaS;

    7. Unlawfull material. Use the SaaS to transmit unlawful material, or to store or transmit material in violation of third-party privacy rights;

    8. Infringement of third party rights. use the SaaS to store or transmit any material that may infringe the software or other rights of third parties; and

    9. Usage. Knowingly or negligently use the SaaS in a way that abuses or disrupts servers, user accounts, or other services.

4

INDEMNITY AGAINST THIRD-PARTY INTELLECTUAL PROPERTY (IP) CLAIMS

  1. The Provider must indemnify the Customer against losses relating to a claim or proceedings instituted against the Customer by a third party because of the product or service directly infringing on a third party’s IP rights.

  2. The Provider only has to indemnify the Customer if the loss was:

    1. not because of the Customer’s misconduct or fraud; and

    2. because of Provider’s act or omission.

Losses covered

    1. The losses covered by the indemnity in 5.1 are general damages.

Formalities

    1. The Provider is not obligated or liable to the Customer for any claim in 5.1 if the Provider is not:

      1. promptly notified in writing of such claim;

      2. granted the sole right to control any discovery, preparation, defence, and settlement of such claim, including the selection of counsel; and

      3. provided full reasonable assistance and cooperation by the Customer in such discovery, preparation, settlement, or defence of the claim.

    2. The Provider is not obligated or liable to the Customer for any claim in 5.1 if:

      1. there is unauthorised use or distribution of the Product or Service or use beyond the specifications; or

      2. the claim arises from:

        1. a modification of the Product and the infringement would have been avoided without such modification;

        2. the combination of the Product with any other product, service, or technology; or

        3. any other act or omission of the Customer, any of its subcontractors, suppliers, or customers.

      3. the distribution of the Product is outside the Territory.

Replacement of the product

    1. If a claim in 5.1 is made, or is likely to be made in the Provider’s opinion, then the Provider may modify or replace the Product that is the subject of the claim, in defence or settlement of the claim.

Mitigation

    1. Despite anything else in this Agreement, the Customer must mitigate their loss if there is a claim or proceedings instituted as in 5.1.

Payments under the indemnity

    1. If there is a claim or proceedings instituted as in 5.1, the Provider must pay the Customer:

      1. as soon as the Customer must pay their amount; or

      2. as soon as the Provider suffers the loss.

5

INDEMNITY DATA PROCESSING

  1. The Provider must indemnify the Customer against losses relating to a claim or proceedings instituted against the Customer by a third party due to the Provider breaching their obligations in this Agreement or violating applicable data privacy laws.

  2. The Provider only has to indemnify the Customer if the loss was:

    1. not because of the Customer’s misconduct or fraud; and

    2. because of Provider’s act or omission.

Losses that are covered

    1. The losses covered by the indemnity in 5.1 are general damages.

    2. The Provider is not obligated or liable to the Customer for any claim in 5.1 if the Provider is not:

      1. promptly notified in writing of such claim;

      2. granted the sole right to control any discovery, preparation, defence, and settlement of such claim, including the selection of counsel; and

      3. provided full reasonable assistance and cooperation by the Customer in such discovery, preparation, settlement, or defence of the claim.

Mitigation

    1. Despite anything else in this Agreement, the Provider is obligated to mitigate their loss if there is a claim or proceedings instituted as in 5.1.

Payments under the indemnity

    1. If there is a claim or proceedings instituted as in 5.1, the Provider must pay the Customer:

      1. as soon as the Customer must pay their amount; or

      2. as soon as the Customer suffers the loss.

6

NO FURTHER REPRESENTATION OR WARRANTIES

The Parties have not relied upon any representation or warranties not stipulated in this Agreement.

7

LIMITATION ON LIABILITY

The liability cap

    1. To the extent permitted under applicable law, the maximum aggregate liability that the Provider their affiliates, employees, contractors or customers can incur in connection with the Agreement, whether in contract, delict, breach of statutory duty or otherwise, is limited to the value of the Agreement.

    2. The liability cap contemplated above includes any interest and costs that may be applicable.

Unrecoverable losses or damages

    1. The Provider or any of their affiliates or representatives will not be liable for indirect, special or incidental losses or damages of any kind, including loss of profit, revenue, savings, business or goodwill but only to the extent such damages or losses relate to this Agreement or any Service or Product provided under this Agreement.

8

EMBEDDED SOFTWARE

  1. Embedded software may be provided with third-party terms applicable to the Customer’s use of that software.

Where no such terms are provided, then:

  1. The Customer may only use embedded software in conjunction with the Provider’s Software, solely to use the Services as per the Agreement;

  2. The Customer must not install, access, configure, or use any embedded software (including any API, tool, database, or other components of any embedded software) separately from the Provider’s Software, whether for production, technical support or any other purpose, or attempt to gain direct access to any embedded software component;

  3. Notwithstanding any other provision of this Agreement, the Provider must not display, modify, reproduce, or distribute any embedded software, including any source code provided with that software;

  4. The Customer must not benchmark or analyse performance information for individual embedded software elements;

  5. The Customer acknowledges that third-party licensors retain ownership of all intellectual property rights in embedded software and that they are intended third-party beneficiaries of this Agreement and may enforce this Agreement directly against the Customer;

  6. The Customer will be responsible to the applicable third-party licensor for any loss, claim, or damage suffered by that third party as a result of breaching this Agreement; and

  7. Embedded software may include or accompany appropriate or necessary third-party technology to use with embedded software. This technology is licensed to You only to use with the software and subject to third-party licence terms.

9

FORCE MAJEURE

  1. Neither Party is liable for failure or delay to perform their obligations under the Agreement to the extent caused by events beyond their control and includes events or acts of:

    1. terrorism;

    2. fires, floods, earthquakes, and other elements of nature;

    3. riots and civil disorders;

    4. pandemics;

or similar events, provided that the relief in 9 will not apply if:

      1. the default or the delay was caused by the non-performing Party; or

      2. such default or delay could have been prevented by precautions and could have been circumvented by the non-performing Party using alternate sources, workaround plans, or other means.

    1. If an event in 9 occurs:

      1. the non-performing Party must immediately notify the other Party and provide full information about the event;

      2. the non-performing Party must use reasonable endeavours to overcome the event; and

      3. the non-performing Party must continue to perform their obligations as far as practicable.

    2. Should either Partybe prevented from carrying on their contractual obligations due to an event above lasting continuously for [●] days, the Parties will consult each other on the future implementation of the Agreement.

    3. If the Parties don’t mutually arrive at an acceptable arrangement within [●] days after that, either Party can terminate the Agreement immediately on written notice.

10

FURTHER ASSISTANCE

  1. The Parties agree that they will co-operate fully to do further acts and execute further documents as required to give full effect to the arrangements in this Agreement.

  2. During this Agreement, the Parties will observe the principles of good faith towards one another in performing their obligations under this Agreement, which will include the Parties:

    1. always acting reasonably, honestly, and in good faith during this Agreement; and

    2. performing their obligations arising from this Agreement diligently and with care.

11

PUBLIC DISCLOSURES

  1. All public disclosures by either Party relating to this Agreement will be coordinated with and approved by the other Party before release.

  2. The provisions of 11.1 will not apply to:

    1. announcements intended solely for internal distribution; or

    2. disclosures required to meet legal requirements beyond the control of the Disclosing Party.

  3. Despite 11.1, the Provider can list the Customer as a customer and describe in general terms the Services provided by the Provider under this Agreement in proposals and other marketing materials.

12

CONFIDENTIALITY

  1. No Party will disclose this Agreement, or any information exchanged between the Parties under this Agreement to any third party without first obtaining written consent from the other Party.

  2. If the law or a regulatory body requires the disclosure of information in 12.1, the Parties will consult with each other, if entitled to by law, before complying with such requirement.

  3. The provisions of 12 do not apply to the disclosure of this Agreement to representatives of the Parties whose function requires them to have the information provided.

  4. All persons to whom information is disclosed as per 12.3 will receive instructions to treat the information as confidential.

  5. The provisions of 12 will survive the failure or termination of this Agreement.

13

ENFORCEMENT COSTS

  1. The defaulting Party must pay all costs incurred by the other Party in connection with enforcing or preserving any rights under this Agreement, including legal fees on an attorney and client scale.

14

ALTERNATIVE DISPUTE RESOLUTION

  1. If there is a dispute between the Parties relating to this Agreement, the Parties must first refer the dispute to mediation under the AFSA Mediation Rules.

  2. If the mediation fails, the Parties must proceed with arbitration proceedings as explained in the AFSA Arbitration Rules.

  3. An arbitrator’s decision may be made an order of court at the request of any Party to the arbitration.

  4. The Parties will treat as confidential and not disclose to any third party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration without the written consent of all the disputants.

  5. The Parties agree that any costs awarded will be recoverable under the High Court tariff, determined on an attorney-and-client scale.

  6. Nothing in this Agreement will prevent a Party from applying to the appropriate court for urgent, interim relief or judgment for a liquidated claim.

  7. The provisions of this clause will be binding on the Parties despite any expiration, termination, or cancellation of this Agreement.

15

TERMINATION – BREACH OF THE AGREEMENT

  1. Unless otherwise provided in the Agreement, if one of the Parties does not fulfil an obligation within 7 days after the aggrieved Party provides a written notice requiring the defaulting Party to fulfil the obligation, then –

  2. the aggrieved Party can:

    1. claim specific performance from the defaulting Party; and

    2. claim damages from the defaulting Party.

  3. or the aggrieved Party can:

    1. if a material term of the Agreement is breached, cancel this Agreement with immediate effect; and

    2. claim damages from the defaulting Party.

    3. Unless otherwise provided in the Agreement, the relief stipulated above will not limit the aggrieved Party’s rights and the aggrieved Party will have all rights that are available in terms of law.

16

TERMINATION – OTHER WAYS TO TERMINATE THE AGREEMENT

Financial ability of the Party

    1. Despite anything contrary in this Agreement, this Agreement may be terminated immediately by a Party if the other Party:

      1. is deemed unable or admits their inability to pay their debts as they become due;

      2. suspends making payments on any of their debts; and

      3. commences negotiations with their creditors to reschedule their indebtedness because of actual or anticipated financial difficulties.

Corrupt acts

    1. Despite anything contrary in this Agreement, this Agreement may be terminated immediately by a Party if the other Party:

      1. commits any offence related to corruption as per the Prevention and Combatting of Corrupt Activities Act No. 12 of 2004.

Ability to conduct business

    1. Despite anything contrary in this Agreement, this Agreement may be terminated immediately by a Party if the other Party’s:

      1. ability to conduct their business is curtailed by the action of any governmental authority or any material authorisation required by the Party to conduct their business ceases to be valid, and the situation is not remedied within 7 days after receipt of a written demand from the other Party.

17

GENERAL

  1. The Agreement is governed by and must be interpreted according to the laws of the Republic of South Africa.

  2. A waiver must be in writing and signed by the waiving Party to waive a right under the Agreement.

  3. Any variation to the Agreement must be in writing and signed by both Parties.

  4. A Party must deliver a notice under the Agreement via email to an email address notified by the other Party for this purpose.

  5. A notice will be accepted as given if sent by email on the same day of transmission with a receipt confirming the successful completion of the transmission.

  6. Any illegality, unenforceability, or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

  7. This Agreement is for the Parties and their permitted successors and assigns, and is not for any other person, nor may any other person enforce any provision.

  8. The Agreement sets out everything agreed by the Parties and supersedes anything discussed, exchanged, or agreed before the Agreement’s start.

  9. Neither Party may assign, subcontract, or transfer any right or obligation under the Agreement without the prior written approval of the other.