Changes between Version 3 and Version 4 of LicenseAgreements/AddOnLicenseAgreement

Author:: peterc (IP: 202.68.89.228)
Timestamp:: 01/09/08 12:26:39 (10 years ago)
Comment:: --

Legend:

: Unmodified
: Added
: Removed
: Modified

LicenseAgreements/AddOnLicenseAgreement

v3	v4
21	21	IT IS AGREED as follows:
22	22
23		1. Definitions
	23	1. Definitions
24	24
25	25	In this Agreement, unless inconsistent with the context or otherwise
90	90	"Website" means the libRocket website located at www.[2]librocket.com.
91	91
92		2. Grant of Licence
93
94		1. Upon payment of any applicable Licence Fee or in the event no
95		Licence Fee is payable pursuant to clause 5.1, on any use being
96		made of the Software, ("Commencement Date") the Licensor grants
97		to the Licensee subject to the terms and conditions contained in
98		this Agreement, a non-exclusive licence for the use of the
99		Software in relation to the Project ("Licence"). Subject to the
100		payment of any applicable Licence Fee as provided for in clause
101		5, the Licence allows the Licensee to use the Software for the
102		Licensee's own internal purposes in relation to the Project
103		including as applicable in the course of the Licensee's ordinary
104		business activities as they relate to the Project and also to
105		incorporate the Software into products related to the Project
106		offered for sale or for free use to the public ("Products") by
107		the Licensee, provided that the Software is not the main
108		component of such Products and such Products do not provide for
109		the Software to be directly accessed and utilised in its own
110		right.
111
112		2. The Licence shall not entitle the Licensee to have access to the
113		Source Code in respect of the Software or to create or to attempt
114		to create the same.
115
116		3. Notwithstanding clause 2.1 the Licensee acknowledges that to make
117		use of the Software the Licensee will need to have installed on
118		the Equipment a current version of:
119
120		1. the standard libRocket software which can be acquired from
121		[3]www.librocket.com;
122
123		2. the Boost Python software which can be acquired from
124		[4]www.boost.org; and
125
126		3. the Python software which can be acquired from
127		www.python.org.
128
129		3. Licence Term
130
131		1. The Licence shall commence on the Commencement Date and shall
132		continue until terminated in accordance with the provisions of
133		this Agreement ("Term").
134
135		2. Under no circumstance will the Licensee be entitled to grant a
136		sub-licence in respect of the Licence or any part of the Licence
137		or otherwise deal with its rights and obligations in respect of
138		the Licence.
139
140		4. Support and Maintenance Services Term
141
142		1. The Support and Maintenance Services shall commence on the
143		Commencement Date and shall continue until the end of the Term.
144
145		5. Payment
146
147		1. In the event that the Licensee uses the Software only for their
148		own personal use or where the Products are distributed for free
149		in a Very Low Volume, the Licensee will not be required to pay a
150		Licence Fee to the Licensor but in return for the benefit the
151		Licensee receives from using the Software the Licensee
152		acknowledges that they will at all times still be bound by the
153		terms of this Agreement.
154
155		2. In the event that the Licensee incorporates the Software into
156		Products, but such Products are sold in Very Low Volume, the
157		Licensee will only be required to pay a Licence Fee of
158		fifty United States dollars ($50.00 USD).
159
160		3. To qualify for the Licence Fee exception pursuant to clause 5.1
161		or the Licence Fee outlined in clause 5.2, the Licensee must also
162		ensure that:
163
164		1. they are an individual or partnership and not a registered company;
165
166		4. the Project to which the Licence is to apply produces Products that
167		are of a shareware or hobby type nature and which if sold are sold
168		for ten New Zealand dollars or less ($10.00 NZD); and
169
170		5. they obtain the approval of the Licensor that the Project to which
171		the Licence is to apply comes within the terms of clauses 5.1 or
172		5.2 as applicable and clauses 5.3.1 and 5.3.2.
173
174		4. In the event that the Licensee incorporates the Software into
175		Products which are sold or distributed for free in any volumes
176		greater than Very Low Volumes the Licensee will be required to pay a
177		Licence Fee of two hundred and fifty United States dollars ($250.00 USD).
178
179		5. It is the Licensee's responsibility to ensure they have paid any
180		applicable Licence Fee provided for in clauses 5.2 and 5.4 prior to
181		making any use of the Software. Once paid the Licence Fee is
182		non-refundable and the Licensor may terminate or suspend any Licence
183		granted pursuant to this Agreement immediately on notice to the
184		Licensee in the event any applicable Licence Fees due as defined in
185		clauses 5.2 and 5.4 are unpaid and the Licensee will also indemnify
186		the Licensor on demand for any direct and indirect costs of any
187		nature whatsoever reasonably incurred by the Licensor in the course
188		of securing the payment of any such unpaid Licence Fees.
189
190		6. The Licensee shall pay the Licence Fee to the Licensor by way of
191		credit card payment in the manner provided for via the Website.
192
193		7. The Licence Fee is exclusive of any applicable Taxes including
194		without limitation Goods and Services Tax ("GST") pursuant to the
195		Goods and Services Tax Act 1985.
196
197		8. Notwithstanding clause 5.7 in the event that the Licensee is or
198		becomes liable to pay or otherwise account for any Taxes, the payment
199		of any amounts due under this Agreement will be adjusted to ensure
200		that after the payment or accounting for of such Taxes the Licensor
201		will receive the original amount that was due to it under this
202		Agreement.
203
204		6. Delivery
205
206		1. The Licensee shall download the Software from the Website.
207
208		7. Support and Maintenance Services
209
210		1. During the Term the Licensor shall upon receipt of a Support Request
211		provide the Licensee with the following Support and Maintenance
212		Services by email in the following manner:
213
214		1. Where an Error occurs the Licensee shall supply in writing to the
215		Licensor a detailed description of the Error requiring Error
216		Correction and the circumstances in which it arose, and shall
217		submit sufficient material and information to enable the Licensor
218		to duplicate the Error, following which the Licensor will provide
219		Error Correction in respect of the Error.
220
221		6. Exclusions:
222
223		a. The Licensor shall be under no obligation to provide Support and
224		Maintenance Services in respect of:
225
226		i. any defects or errors resulting from any modifications or
227		customisation of the Software made by any other person other than
228		the Licensor;
229
230		ii. incorrect or unauthorised use of the Software or operator error
231		where these are defined as use or operation not in accordance
232		with the Documentation;
233
234		iii. any fault in the Equipment or in any programs used in
235		conjunction with the Software;
236
237		iv. any defects or errors caused by the use of the Software on or
238		with any Equipment which is not approved in writing by the
239		Licensor or in conjunction with any other software which is not
240		approved in writing by the Licensor;
241
242		v. any software or programs other than the Software;
243
244		vi. any other of the Licensee's computer hardware, other equipment,
245		or any data feeds or external data; and
246
247		vii. the Licensee's failure to install and use upon the Equipment in
248		substitution for the previous release any new release of the
249		Software which includes updates or bug fixes in respect of the
250		Licensee's version of the Software within 90 days of such new
251		release of the Software being available for download from the
252		Website.
253
254		1. The Licensor will respond to any Support Request by email within 48
255		hours of its receipt and will attempt to provide the required Support
256		and Maintenance Services within the same time period.
257
258		2. In addition to making use of the Support and Maintenance Services
259		provided for in clauses 7.1 and 7.2 the Licensee is also entitled to
260		make use of the Forums on such the terms and conditions as are
261		specified on the Website from time to time in respect of use of the
262		Forums.
263
264		3. Notwithstanding clauses 7.1, 7.2 and 7.3, the Licensee acknowledges
265		that in the event they are not required to pay a Licence Fee as
266		provided for by clause 5.1, the Licensee will not be entitled to make
267		use of the Support and Maintenance Services as described in clauses
268		7.1 and 7.2 but will be entitled to make use of the Forums as
269		provided for by clause 7.3.
270
271		8. New Releases
272
273		1. During the Term the Licensor shall notify the Licensee by email,
274		where the Licensee has registered on the Website to receive such
275		notification, of any new release of the Software that is available
276		for download from the Website.
277
278		2. Notwithstanding clause 8.1, although the Licensee will be entitled to
279		download any new releases of the Software as part of the Support and
280		Maintenance Services, for the avoidance of doubt the Licensee will
281		not be entitled to download and use any later version of the Software
282		without paying a further applicable Licence Fee as defined in clauses
283		5.2 and 5.4 in respect of that new version of the Software.
284
285		3. In the event of any confusion as to whether a new release of the
286		Software is actually a new version of the Software the Licensor's
287		decision shall be final.
288
289		1. The Licensor may from time to time, acting entirely at its own
290		discretion, make such modifications to the current release of the
291		Software as shall ensure that the current release conforms to any
292		legal requirements or change of legislation. In the event that the
293		Licensor acting reasonably does not believe that it is technically
294		possible or commercially justifiable for it to make such
295		modifications then the Licensor shall be entitled to terminate this
296		Agreement on 30 days written notice to the Licensee. Where the
297		Licensor does make modifications to the current release of the
298		Software ("Modified Software") in accordance with the terms of this
299		Agreement, the Licensor shall make such Modified Software available
300		for download from the Website. The Licensee shall be required to as
301		soon as reasonably possible adopt such Modified Software. Failure by
302		the Licensee to adopt such Modified Software within 90 days of any
303		such new release of the Software being made available for download
304		from the Website, shall entitle the Licensor to terminate this
305		Agreement immediately on written notice to the Licensee.
306
307		2. Any new release of the Software or Modified Software adopted by the
308		Licensee shall become the current release and the provisions of this
309		Agreement shall apply accordingly.
310
311		9. Licensee's Obligations
312
313		1. The Licensee shall operate the Software in accordance with the
314		Specification and Documentation.
315
316		10. Restrictions on Alterations
317
318		1. If the Software within the Licensee's control pursuant to the
319		Licence is modified or altered by the Licensee, the Licensee will
320		fully indemnify the Licensor against all liability which may be
321		incurred by the Licensor if such modifications or alterations
322		infringe any Intellectual Property Rights of a third person or
323		otherwise cause the Licensor to suffer loss, damages or expense.
324
325		2. The Software within the Licensee's control pursuant to the
326		Licence remains the property of the Licensor in all respects.
327
328		11. Security and Control
329
330		1. The Licensee shall during the continuance of the Licence effect
331		and maintain security measures in accordance with accepted
332		industry standards to safeguard the Software from access or use
333		by any unauthorised person.
334
335		12. Proprietary Rights
336
337		1. The Product Materials and the Intellectual Property Rights of
338		whatever nature in the Product Materials (excluding any third
339		party rights in respect of Third Party Software) are and shall
340		remain the property of the Licensor.
341
342		2. The Licensee shall notify the Licensor immediately if the
343		Licensee becomes aware of any unauthorised use of the whole or
344		any part of the Product Materials by any person.
345
346		3. The Third Party Software at all times remains the property of the
347		applicable third party and the Licensee's use of such Third Party
348		Software is at all times governed by the provisions of any
349		applicable licence relating to any such Third Party Software.
350
351		13. Intellectual Property Rights
352
353		1. The Licensee acknowledges that the Licence granted pursuant to
354		clause 2 does not grant any transfer of title or ownership to the
355		Licensee of any Licensor's Intellectual Property Rights including
356		without limitation in the Product Materials. The Licensee's right
357		to use the Licensor's Intellectual Property Rights as provided
358		for in this Agreement will cease upon the termination of this
359		Agreement or as otherwise provided for in this clause 13.
360
361		2. The Licensee acknowledges that the grant of the Licence or any
362		other terms of this Agreement do not in any way confer any right
363		or licence upon the Licensee to use, exploit or otherwise utilise
364		any rights relating to the Licensor's Intellectual Property
365		Rights other than in accordance with the terms of this Agreement.
366
367		3. The Licensee agrees not to represent in any way that it has any
368		title, right or interest in the ownership of the Licensor's
369		Intellectual Property Rights nor do anything which might be
370		contrary to the rights or interest of the Licensor in its
371		Intellectual Property Rights nor seek to apply to register in its
372		own name or that of any third party any part of the Licensor's
373		Intellectual Property Rights and will assist the Licensor in any
374		application to register any such Intellectual Property Rights
375		belonging to the Licensor at the cost of the Licensor.
376
377		4. The Licensee agrees with the Licensor that it will notify the
378		Licensor in writing as soon as practicable of any infringement,
379		suspected infringement or alleged infringement relating to the
380		Licensor's Intellectual Property Rights which comes to its
381		knowledge provided that the Licensee will be deemed to have
382		knowledge of any infringement, suspected infringement or alleged
383		infringement if such infringement would have come to the
384		Licensee's knowledge but for any negligence or wilful misconduct
385		on the part of the Licensee.
386
387		5. In the event that proceedings are brought or threatened by a
388		third party against the Licensee or the Licensor, alleging that
389		the Licensee's use of the Product Materials constitutes an
390		infringement of a third party's Intellectual Property Rights, the
391		Licensor may at its option and at its own expense conduct the
392		defence of such proceedings. As requested by the Licensor the
393		Licensee shall provide all necessary co-operation, information
394		and assistance to the Licensor in the conduct of the defence of
395		such proceedings.
396
397		6. In the circumstances provided for in clause 13.5, but also where
398		the Licensor acting entirely at its own discretion believes that
399		there is a reasonable likelihood that infringement may currently
400		exist or is likely to occur, the Licensee agrees with the
401		Licensor that it will permit the Licensor, acting entirely in the
402		Licensor's discretion to;
403
404		1. modify, alter or substitute the infringing or potentially
405		infringing part of the Product Materials, at the Licensor's expense
406		in order to avoid the infringement or potential infringement; or
407
408		7. procure for the Licensee the authority to continue with the use and
409		possession of the infringing or potentially infringing part of the
410		Product Materials.
411
412		7. If the remedies set out in clause 13.6 above are not in the
413		Licensor's opinion reasonably available, then the Licensor shall be
414		entitled to terminate the Licence and this Agreement immediately on
415		written notice to the Licensee at which point the Licensee shall
416		destroy all copies of the Product Materials within its possession and
417		provide a written certificate from one of the Licensee's directors to
418		the Licensor that such copies have been destroyed provided that the
419		Licensor shall be entitled to enter upon the Licensee's premises to
420		repossess any copies of the Product Materials in the possession,
421		custody or control of the Licensee not returned or destroyed as
422		provided for above.
423
424		8. The Licensee acknowledges that the Licensor will have no obligation
425		to indemnify the Licensee against any damages, costs and losses
426		incurred by the Licensee whether direct or consequential (including
427		but without limitation any economic loss or other loss of turnover,
428		profits, business or goodwill) in connection with any proceedings
429		bought by a third party against the Licensee alleging that the
430		Licensee's use of the Product Materials constitutes an infringement
431		of that third party's Intellectual Property Rights.
432
433		9. The Licensee shall indemnify the Licensor against any loss, costs,
434		expenses, demands or liability, whether direct or indirect, arising
435		out of a claim by a third party pursuant to clause 13.5 where:
436
437		1. the claim arises from:
438
439		b. use of the Product Materials in combination with any equipment or
440		programs where such use is not authorised by the terms of this
441		Agreement or otherwise approved by the Licensor;
442
443		c. use of the Product Materials in a manner or for a purpose not
444		specifically provided for by this Agreement or authorised by the
445		Licensor;
446
447		d. modification or alteration of the Product Materials by the
448		Licensee or any third party on behalf of the Licensee; and
449
450		e. any transaction entered into by the Licensee relating to the
451		Product Materials without the Licensor's prior consent in writing
452		which is not otherwise authorised by the terms of this Agreement;
453		or
454
455		8. the ability of the Licensor to defend the claim has been prejudiced
456		by the failure of the Licensee to comply with any requirements of
457		clauses 13.4, 13.5 or 13.6.
458
459		10. The Licensee acknowledges that the Licensor is in no way liable to
460		the Licensee in respect of any liability arising from the Licensee's
461		use of any Third Party Software and the Licensee agrees to indemnify
462		the Licensor on demand in the event of any liability suffered by the
463		Licensor arising from the Licensee's use of the Third Party Software.
464
465		14. Warranties
466
467		1. To the fullest extent permitted at law, the Licensor:
468
469		1. disclaims all warranties with respect to the Software, either
470		express or implied, including but not limited to any implied
471		warranties relating to quality, fitness for any particular purpose
472		or ability to achieve a particular result;
473
474		9. makes no warranty that the Software is error free or that use of
475		the Software will be uninterrupted and the Licensee acknowledges
476		and agrees that the existence of such errors shall not constitute a
477		breach of this Agreement; and
478
479		10. does not give any warranty in respect of the Third Party Software.
480
481		2. The Licensee agrees that its sole remedy in respect of any
482		non-conformance with any warranty that can not be excluded pursuant
483		to clause 14.1 is that the Licensor will remedy such non-conformance
484		(either by itself or through a third party) and if, in the Licensor's
485		reasonable opinion, it is unable to remedy such non-conformance, the
486		Licensor shall be entitled to terminate the Licence and this
487		Agreement immediately on written notice to the Licensee at which
488		point the Licensee shall destroy all copies of the Product Materials
489		within its possession and provide a written certificate from one of
490		the Licensee's directors to the Licensor that such copies have been
491		destroyed provided that the Licensor shall be entitled to enter upon
492		the Licensee's premises to repossess any copies of the Product
493		Materials in the possession, custody or control of the Licensee not
494		returned or destroyed as provided for above.
495
496		3. The Licensee will not disable or alter the display of the Software
497		logo, as such is incorporated into any Products or generally
498		displayed as a result of the use of the Software.
499
500		15. Liability
501
502		1. Except as provided for in clauses 13.9, 15.2, 15.3, 15.5 and 15.6
503		and to the greatest extent permitted at law, under no
504		circumstances will either party ("the first party"), its
505		employees or its agents be liable to the other party ("the second
506		party") in contract, tort, equity, statute, regulation or
507		otherwise for any loss, damage, costs, legal costs, professional
508		and other expenses of any nature whatsoever incurred or suffered
509		by the second party, or by any other third party, whether direct
510		or consequential (including but without limitation any economic
511		loss or other loss of turnover, profits, business or goodwill)
512		arising out of any dispute or contractual, tortuous or other
513		claims or proceedings bought by the second party or which are
514		alternatively bought against the second party as a result of the
515		second party's breach of this Agreement.
516
517		2. Clause 15.1 shall not exclude any liability of the first party to
518		the second party which arises from:
519
520		1. wilful misconduct or gross negligence on the part of the first
521		party;
522
523		11. where the Licensee is the first party, any act or omission by any
524		persons to whom the Licensee is permitted to disclose Information
525		(as defined in clause 16.1) as set out in this Agreement, which, if
526		done or omitted to be done by the Licensee, would be a breach of
527		the Licensee's obligations under this Agreement,
528
529		and in respect of which the first party will indemnify the second party.
530
531		3. In the event that any limitation or provision contained in this
532		Agreement is held to be invalid or unenforceable for any reason and
533		the first party becomes liable for loss or damage that would
534		otherwise have been excluded, to the greatest extent permitted at
535		law, and also in respect of any liability pursuant to clause 15.2,
536		the first party's maximum liability to the second party under the
537		Agreement shall be limited to an amount equivalent to the Licence Fee
538		paid by the Licensee pursuant to this Agreement.
539
540		4. Notwithstanding clause 15.1, to the greatest extent permitted at law,
541		the parties agree that the first party shall not be liable to the
542		second party in contract, tort, equity, statute, regulation or
543		otherwise for any loss, damage, cost, legal costs, professional and
544		other expenses of a consequential nature (including but without
545		limitation any economic loss or other loss of turnover, profits,
546		business or goodwill).
547
548		5. Notwithstanding clauses 15.1, 15.2, 15.3 and 15.4 the liability of
549		the Licensee to the licensor shall not be limited in respect of any
550		liability arising from the Licensee's breach of the Licensor's
551		Intellectual Property Rights or any third party's Intellectual
552		Property Rights.
553
554		6. The parties acknowledge and agree that the limitations contained in
555		this clause 15 are reasonable in the light of all the circumstances.
556
557		7. Where the Licensee is obtaining the Product Materials and Support and
558		Maintenance Services for business purposes the Licensee agrees the
559		Consumer Guarantees Act 1993 does not apply.
560
561		8. The parties agree that to the greatest extent permitted at law the
562		Sale of Goods Act 1908, the United Nations Convention on Contracts
563		for the International Sale of Goods (1980) and the Sale of Goods
564		(United Nations Convention) Act 1994 will not apply to this
565		Agreement.
566
567		16. Confidential Information
568
569		1. The Licensee undertakes, except as provided below, to treat as
570		confidential and keep secret all information marked
571		'confidential' or which may reasonably be supposed to be
572		confidential, including, without limitation, information
573		contained or embodied in the Product Materials, the Specification
574		and other information supplied by the Licensor to the Licensee
575		(in this Agreement collectively referred to as 'the Information')
576		with the same degree of care as the Licensee employs with regard
577		to the Licensee's own confidential information of a like nature
578		and in any event in accordance with best current commercial
579		security practices, provided that, this clause shall not extend
580		to any information which was rightfully in the possession of the
581		Licensee prior to the commencement of this Agreement or which is
582		already public knowledge or becomes so at a future date
583		(otherwise than as a result of a breach of this clause).
584
585		2. The Licensee shall not without the prior written consent of the
586		Licensor divulge any part of the Information to any person
587		except:
588
589		1. to the Licensee's employees and then only to those employees to
590		whom it is necessary to make such disclosure in order for the
591		Licensee to meet its obligations under this Agreement;
592
593		2. to such other parties as may be reasonably necessary to enable the
594		Licensee to meet its obligations under this Agreement;
595
596		12. to the Licensee's solicitors, insurers, accountants and auditors;
597		and
598
599		13. where such disclosure is required, pursuant to any law, regulation,
600		court order or valid government department or agency legal
601		requirement, provided that the Licensee must:
602
603		a. promptly and if practicable before making the disclosure, notify
604		the Licensor of that fact and identify the Information required to
605		be so disclosed so that if practicable in the circumstances a
606		protective order or other appropriate remedy may be sought; and
607
608		a. disclose only the minimum Information required to comply with the
609		applicable law or order.
610
611		3. The Licensee undertakes to ensure that persons and bodies referred to
612		in clause 16.2 are made aware before the disclosure of any part of
613		the Information that the same is confidential and that they owe a
614		duty of confidence to the Licensor.
615
616		4. The Licensee shall promptly notify the Licensor if it becomes aware
617		of any breach of confidence by any person to whom the Licensee has
618		divulged all or any part of the Information and the Licensee shall
619		give the Licensor all reasonable assistance in connection with any
620		proceedings which the Licensor may institute against such person for
621		breach of confidence.
622
623		5. The foregoing obligations as to confidentiality shall remain in full
624		force and effect notwithstanding any termination of the Licence or
625		this Agreement.
626
627		6. The Licensor shall be entitled to identify the Licensee as a licensee
628		of the Products in the Licensor's publicity materials.
629
630		1. If the Licensor authorises the Licensee to disclose any Information
631		to any person the Licensee agrees at the request of the Licensor
632		prior to such disclosure to have such person execute an
633		acknowledgement to the effect that the Information is disclosed to
634		that person in confidence.
635
636		17. Termination
637
638		1. Either party may terminate this Agreement immediately by notice in
639		writing to the other if the other:
640
641		1. commits a material breach of this Agreement which is not capable of
642		remedy; or
643
644		14. commits a breach of this Agreement which is capable of a remedy,
645		and such breach is not remedied within 14 days of receipt by the
646		other, of a notice from the innocent party identifying the breach
647		and requiring its remedy; or
648
649		15. is unable to pay its debts or is deemed to be, or enters into
650		liquidation (other than with the prior written agreement of the
651		other party for the purpose of effecting a reconstruction or
652		amalgamation in such manner that the company resulting from such
653		reconstruction or amalgamation if a different legal entity agrees
654		to be bound by and assume the obligations of the relevant party
655		under this Agreement) or compounds with or compromises with or
656		convenes a meeting of its creditors or has a receiver appointed
657		over all or any part of its assets or takes or suffers any similar
658		action in consequence of a debt, or ceases for any reason to carry
659		on business.
660
661		1. For the avoidance of doubt the Licence will be deemed to terminate
662		upon the termination of the Agreement and upon the termination of the
663		Licence, the Licensee shall destroy all copies of the Product
664		Materials within its possession and provide a written certificate
665		from one of the Licensee's directors to the Licensor that such copies
666		have been destroyed provided that the Licensor shall be entitled to
667		enter upon the Licensee's premises to repossess any copies of the
668		Product Materials in the possession, custody or control of the
669		Licensee not returned or destroyed as provided for above.
670
671		2. Any termination of the Licence or this Agreement (howsoever
672		occasioned) shall not affect any accrued rights or liabilities of
673		either party nor shall it affect the coming into force or the
674		continuance in force of any provision in this Agreement which is
675		expressly stated as continuing in force on or after such termination.
676
677		18. Agency, Partnership
678
679		1. This Agreement shall not constitute or imply any partnership,
680		joint venture, agency, fiduciary relationship or other
681		relationship between the parties other than the contractual
682		relationship expressly provided for in this Agreement.
683
684		19. Amendments
685
686		1. Except where expressly provided for in this Agreement, this
687		Agreement may not be released, discharged, supplemented,
688		interpreted, amended, varied or modified in any manner except by
689		an instrument in writing signed by a duly authorised officer or
690		representative of each of the parties.
691
692		20. Announcements
693
694		1. Except where expressly provided for in this Agreement, no party
695		shall issue or make any public announcement or disclose any
696		information regarding this Agreement unless prior written consent
697		has been obtained from the other party.
698
699		21. Assignment
700
701		1. The Licensee may not assign or otherwise deal with any of its
702		rights or obligations under this Agreement.
703
704		22. Entire Agreement
705
706		1. This Agreement supersedes all prior agreements, arrangements and
707		undertakings between the parties and constitutes the entire
708		agreement between the parties relating to the subject matter of
709		this Agreement. The parties confirm that they have not entered
710		into this Agreement on the basis of any representation that is
711		not expressly incorporated into this Agreement.
712
713		23. Force Majeure
714
715		1. Neither party is in breach of this Agreement if its breach is
716		caused by an act of God, fire, act of government or state, war,
717		terrorism, sabotage, civil commotion, insurrection, embargo,
718		prevention from or hindrance in obtaining any raw materials,
719		energy or other supplies, labour disputes of whatever nature
720		including strikes and lockouts, piracy, destruction of essential
721		equipment by fire, explosion, storm, flood or earthquake, medical
722		epidemic and delay caused by failure of power supplies or
723		transport facilities or any other reason beyond the reasonable
724		control of a party.
725
726		24. Notices
727
728		1. All notices in relation to this Agreement must be served by email
729		to the email address used by either party from time to time to
730		communicate with the other party.
731
732		25. Schedules
733
734		1. The provisions of Schedule 1 shall form part of this Agreement as
735		if set out here.
736
737		26. Severance
738
739		1. If any provision of this Agreement is prohibited by law or judged
740		by a court to be unlawful, void or unenforceable, the provision
741		shall, to the extent required, be severed from this Agreement and
742		rendered ineffective as far as possible without modifying the
743		remaining provisions of this Agreement, and shall not in any way
744		affect any other circumstances of or the validity or enforcement
745		of this Agreement.
746
747		27. Waiver
748
749		1. No delay, neglect or forbearance on the part of either party in
750		enforcing against the other party any term or condition of this
751		Agreement shall either be or be deemed to be a waiver or in any
752		way prejudice any right of that party under this Agreement. No
753		right, power or remedy in this Agreement conferred upon or
754		reserved for either party is exclusive of any other right, power
755		or remedy available to that party.
756
757		28. Subcontracting
758
759		1. The Licensee agrees that the Licensor may perform any or all of
760		its obligations under this Agreement through agents or
761		sub-contractors.
762
763		29. Survival of Agreement
764
765		1. The provisions of clauses 12 (Proprietary Rights), 13
766		(Intellectual Property Rights), 14 (Warranties), 15 (Liability),
767		16 (Confidential Information) clauses 17.2 and 17.3 (Termination)
768		and this clause 29 survive the termination or expiry of this
769		Agreement for whatever reason.
770
771		30. Language
772
773		1. This Agreement is made only in the English language. If there is
774		any conflict in the meaning between the English language version
775		of this Agreement and any version or translation of it in any
776		other language, the English language version shall prevail.
777
778		31. Proper Law and Jurisdiction
779
780		1. This Agreement and all matters arising from it and any dispute
781		resolutions referred to below shall be governed by and construed in
782		accordance with New Zealand law notwithstanding the conflict of law
783		provisions and other mandatory legal provisions.
784
785		2. Subject to clause 31.8 and 31.11 the procedures set out in clauses
786		31.3 to 31.9 shall apply to all disputes arising under this
787		Agreement.
788
789		3. Where there is a dispute, the aggrieved party shall notify the other
790		party in writing of the nature of the dispute, with as much detail as
791		possible about the deficient performance of the other party. A
792		representative from senior management of each of the parties
793		("representatives") shall meet in person or communicate by telephone
794		within 5 business days of the date of the written notification in
795		order to reach an agreement about the nature of the deficiency and
796		the corrective action to be taken by the respective parties.
797
798		1. If the dispute pursuant to clause 31.3 cannot be resolved within 10
799		business days of the date of the written notification provided for in
800		clause 31.3, or if the agreed upon completion dates in any written
801		plan of corrective action are exceeded, the parties will refer the
802		dispute to a single arbitrator to be chosen by the parties or, if
803		they cannot agree, chosen by the President of the New Zealand Law
804		Society, or the President's nominee and such arbitration will be
805		conducted in New Zealand in accordance with the Rules in Schedules 1
806		and 2 of the Arbitration Act 1996.
807
808		2. The parties must always act in good faith and co-operate with each
809		other to promptly resolve any dispute.
810
811		3. The arbitrator will fix the procedures and time frames for the
812		arbitration if the parties cannot agree.
813
814		4. The parties must continue to comply with their obligations under this
815		Agreement during the dispute resolution process.
816
817		5. This clause will not apply to:
818
819		1. a dispute arising in connection with any attempted re-negotiation
820		of this Agreement; or
821
822		1. any application by either party for urgent interlocutory relief.
823
824		6. If the parties cannot resolve the dispute by the procedure set out
825		above, the parties shall irrevocably submit to the exclusive
826		jurisdiction of the courts of New Zealand for the purposes of hearing
827		and determining any dispute arising out of this Agreement.
828
829		7. Each party recognises that the other party's business relies upon the
830		protection of its Intellectual Property Rights and that in the event
831		of a breach of Intellectual Property Rights, the other party will be
832		caused irreparable damage and such other party may therefore be
833		entitled to injunctive or other equitable relief in order to prevent
834		a breach or threatened breach of its Intellectual Property Rights.
835
836		8. Notwithstanding clause 31.1 to 31.7 and clause 31.9, the parties
837		agree that:
838
839		1. the Licensor shall have the right to sue to recover any amounts
840		owing to it in any jurisdiction in which the Licensee is operating
841		or has assets; and
842
843		1. in the event of any breach or potential breach of its Intellectual
844		Property Rights the Licensor shall have the right to sue for breach
845		of its Intellectual Property Rights (whether in connection with
846		this Agreement or otherwise) in any country where it believes that
847		infringement or a breach or potential infringement or breach of
848		this Agreement relating to its Intellectual Property Rights is or
849		is likely to take place.
	92	2. Grant of Licence
	93
	94	2.1 Upon payment of any applicable Licence Fee or in the event no
	95	Licence Fee is payable pursuant to clause 5.1, on any use being
	96	made of the Software, ("Commencement Date") the Licensor grants
	97	to the Licensee subject to the terms and conditions contained in
	98	this Agreement, a non-exclusive licence for the use of the
	99	Software in relation to the Project ("Licence"). Subject to the
	100	payment of any applicable Licence Fee as provided for in clause
	101	5, the Licence allows the Licensee to use the Software for the
	102	Licensee's own internal purposes in relation to the Project
	103	including as applicable in the course of the Licensee's ordinary
	104	business activities as they relate to the Project and also to
	105	incorporate the Software into products related to the Project
	106	offered for sale or for free use to the public ("Products") by
	107	the Licensee, provided that the Software is not the main
	108	component of such Products and such Products do not provide for
	109	the Software to be directly accessed and utilised in its own
	110	right.
	111
	112	2.2 The Licence shall not entitle the Licensee to have access to the
	113	Source Code in respect of the Software or to create or to attempt
	114	to create the same.
	115
	116	2.3 Notwithstanding clause 2.1 the Licensee acknowledges that to make
	117	use of the Software the Licensee will need to have installed on
	118	the Equipment a current version of:
	119
	120	2.3.1 the standard libRocket software which can be acquired from
	121	[3]www.librocket.com;
	122
	123	2.3.2 the Boost Python software which can be acquired from
	124	[4]www.boost.org; and
	125
	126	2.3.3 the Python software which can be acquired from
	127	www.python.org.
	128
	129	3. Licence Term
	130
	131	3.1 The Licence shall commence on the Commencement Date and shall
	132	continue until terminated in accordance with the provisions of
	133	this Agreement ("Term").
	134
	135	3.2 Under no circumstance will the Licensee be entitled to grant a
	136	sub-licence in respect of the Licence or any part of the Licence
	137	or otherwise deal with its rights and obligations in respect of
	138	the Licence.
	139
	140	4. Support and Maintenance Services Term
	141
	142	4.1 The Support and Maintenance Services shall commence on the
	143	Commencement Date and shall continue until the end of the Term.
	144
	145	5. Payment
	146
	147	5.1 In the event that the Licensee uses the Software only for their
	148	own personal use or where the Products are distributed for free
	149	in a Very Low Volume, the Licensee will not be required to pay a
	150	Licence Fee to the Licensor but in return for the benefit the
	151	Licensee receives from using the Software the Licensee
	152	acknowledges that they will at all times still be bound by the
	153	terms of this Agreement.
	154
	155	5.2 In the event that the Licensee incorporates the Software into
	156	Products, but such Products are sold in Very Low Volume, the
	157	Licensee will only be required to pay a Licence Fee of of
	158	fifty United States dollars ($50.00 USD).
	159
	160	5.3 To qualify for the Licence Fee exception pursuant to clause 5.1
	161	or the Licence Fee outlined in clause 5.2, the Licensee must also
	162	ensure that:
	163
	164	5.3.1 they are an individual or partnership and not a registered company;
	165
	166	5.3.2 the Project to which the Licence is to apply produces Products that
	167	are of a shareware or hobby type nature and which if sold are sold
	168	for ten New Zealand dollars or less ($NZ10.00); and
	169
	170	5.3.3 they obtain the approval of the Licensor that the Project to which
	171	the Licence is to apply comes within the terms of clauses 5.1 or
	172	5.2 as applicable and clauses 5.3.1 and 5.3.2.
	173
	174	5.4 In the event that the Licensee incorporates the Software into
	175	Products which are sold or distributed for free in any volumes
	176	greater than Very Low Volumes the Licensee will be required to pay a
	177	Licence Fee of two hundred and fifty United States dollars ($250.00 USD).
	178
	179	5.5 It is the Licensee's responsibility to ensure they have paid any
	180	applicable Licence Fee provided for in clauses 5.2 and 5.4 prior to
	181	making any use of the Software. Once paid the Licence Fee is
	182	non-refundable and the Licensor may terminate or suspend any Licence
	183	granted pursuant to this Agreement immediately on notice to the
	184	Licensee in the event any applicable Licence Fees due as defined in
	185	clauses 5.2 and 5.4 are unpaid and the Licensee will also indemnify
	186	the Licensor on demand for any direct and indirect costs of any
	187	nature whatsoever reasonably incurred by the Licensor in the course
	188	of securing the payment of any such unpaid Licence Fees.
	189
	190	5.6 The Licensee shall pay the Licence Fee to the Licensor by way of
	191	credit card payment in the manner provided for via the Website.
	192
	193	5.7 The Licence Fee is exclusive of any applicable Taxes including
	194	without limitation Goods and Services Tax ("GST") pursuant to the
	195	Goods and Services Tax Act 1985.
	196
	197	5.8 Notwithstanding clause 5.7 in the event that the Licensee is or
	198	becomes liable to pay or otherwise account for any Taxes, the payment
	199	of any amounts due under this Agreement will be adjusted to ensure
	200	that after the payment or accounting for of such Taxes the Licensor
	201	will receive the original amount that was due to it under this
	202	Agreement.
	203
	204	6. Delivery
	205
	206	6.1 The Licensee shall download the Software from the Website.
	207
	208	7. Support and Maintenance Services
	209
	210	7.1 During the Term the Licensor shall upon receipt of a Support Request
	211	provide the Licensee with the following Support and Maintenance
	212	Services by email in the following manner:
	213
	214	7.1.1 Where an Error occurs the Licensee shall supply in writing to the
	215	Licensor a detailed description of the Error requiring Error
	216	Correction and the circumstances in which it arose, and shall
	217	submit sufficient material and information to enable the Licensor
	218	to duplicate the Error, following which the Licensor will provide
	219	Error Correction in respect of the Error.
	220
	221	7.1.2 Exclusions:
	222
	223	a) The Licensor shall be under no obligation to provide Support and
	224	Maintenance Services in respect of:
	225
	226	i) any defects or errors resulting from any modifications or
	227	customisation of the Software made by any other person other than
	228	the Licensor;
	229
	230	ii) incorrect or unauthorised use of the Software or operator error
	231	where these are defined as use or operation not in accordance
	232	with the Documentation;
	233
	234	iii) any fault in the Equipment or in any programs used in
	235	conjunction with the Software;
	236
	237	iv) any defects or errors caused by the use of the Software on or
	238	with any Equipment which is not approved in writing by the
	239	Licensor or in conjunction with any other software which is not
	240	approved in writing by the Licensor;
	241
	242	v) any software or programs other than the Software;
	243
	244	vi) any other of the Licensee's computer hardware, other equipment,
	245	or any data feeds or external data; and
	246
	247	vii) the Licensee's failure to install and use upon the Equipment in
	248	substitution for the previous release any new release of the
	249	Software which includes updates or bug fixes in respect of the
	250	Licensee's version of the Software within 90 days of such new
	251	release of the Software being available for download from the
	252	Website.
	253
	254	7.2 The Licensor will respond to any Support Request by email within 48
	255	hours of its receipt and will attempt to provide the required Support
	256	and Maintenance Services within the same time period.
	257
	258	7.3 In addition to making use of the Support and Maintenance Services
	259	provided for in clauses 7.1 and 7.2 the Licensee is also entitled to
	260	make use of the Forums on such the terms and conditions as are
	261	specified on the Website from time to time in respect of use of the
	262	Forums.
	263
	264	7.4 Notwithstanding clauses 7.1, 7.2 and 7.3, the Licensee acknowledges
	265	that in the event they are not required to pay a Licence Fee as
	266	provided for by clause 5.1, the Licensee will not be entitled to make
	267	use of the Support and Maintenance Services as described in clauses
	268	7.1 and 7.2 but will be entitled to make use of the Forums as
	269	provided for by clause 7.3.
	270
	271	8. New Releases
	272
	273	8.1 During the Term the Licensor shall notify the Licensee by email,
	274	where the Licensee has registered on the Website to receive such
	275	notification, of any new release of the Software that is available
	276	for download from the Website.
	277
	278	8.2 Notwithstanding clause 8.1, although the Licensee will be entitled to
	279	download any new releases of the Software as part of the Support and
	280	Maintenance Services, for the avoidance of doubt the Licensee will
	281	not be entitled to download and use any later version of the Software
	282	without paying a further applicable Licence Fee as defined in clauses
	283	5.2 and 5.4 in respect of that new version of the Software.
	284
	285	8.3 In the event of any confusion as to whether a new release of the
	286	Software is actually a new version of the Software the Licensor's
	287	decision shall be final.
	288
	289	8.4 The Licensor may from time to time, acting entirely at its own
	290	discretion, make such modifications to the current release of the
	291	Software as shall ensure that the current release conforms to any
	292	legal requirements or change of legislation. In the event that the
	293	Licensor acting reasonably does not believe that it is technically
	294	possible or commercially justifiable for it to make such
	295	modifications then the Licensor shall be entitled to terminate this
	296	Agreement on 30 days written notice to the Licensee. Where the
	297	Licensor does make modifications to the current release of the
	298	Software ("Modified Software") in accordance with the terms of this
	299	Agreement, the Licensor shall make such Modified Software available
	300	for download from the Website. The Licensee shall be required to as
	301	soon as reasonably possible adopt such Modified Software. Failure by
	302	the Licensee to adopt such Modified Software within 90 days of any
	303	such new release of the Software being made available for download
	304	from the Website, shall entitle the Licensor to terminate this
	305	Agreement immediately on written notice to the Licensee.
	306
	307	8.5 Any new release of the Software or Modified Software adopted by the
	308	Licensee shall become the current release and the provisions of this
	309	Agreement shall apply accordingly.
	310
	311	9. Licensee's Obligations
	312
	313	9.1 The Licensee shall operate the Software in accordance with the
	314	Specification and Documentation.
	315
	316	10. Restrictions on Alterations
	317
	318	10.1 If the Software within the Licensee's control pursuant to the
	319	Licence is modified or altered by the Licensee, the Licensee will
	320	fully indemnify the Licensor against all liability which may be
	321	incurred by the Licensor if such modifications or alterations
	322	infringe any Intellectual Property Rights of a third person or
	323	otherwise cause the Licensor to suffer loss, damages or expense.
	324
	325	10.2 The Software within the Licensee's control pursuant to the
	326	Licence remains the property of the Licensor in all respects.
	327
	328	11. Security and Control
	329
	330	11.1 The Licensee shall during the continuance of the Licence effect
	331	and maintain security measures in accordance with accepted
	332	industry standards to safeguard the Software from access or use
	333	by any unauthorised person.
	334
	335	12. Proprietary Rights
	336
	337	12.1 The Product Materials and the Intellectual Property Rights of
	338	whatever nature in the Product Materials (excluding any third
	339	party rights in respect of Third Party Software) are and shall
	340	remain the property of the Licensor.
	341
	342	12.2 The Licensee shall notify the Licensor immediately if the
	343	Licensee becomes aware of any unauthorised use of the whole or
	344	any part of the Product Materials by any person.
	345
	346	12.3 The Third Party Software at all times remains the property of the
	347	applicable third party and the Licensee's use of such Third Party
	348	Software is at all times governed by the provisions of any
	349	applicable licence relating to any such Third Party Software.
	350
	351	13. Intellectual Property Rights
	352
	353	13.1 The Licensee acknowledges that the Licence granted pursuant to
	354	clause 2 does not grant any transfer of title or ownership to the
	355	Licensee of any Licensor's Intellectual Property Rights including
	356	without limitation in the Product Materials. The Licensee's right
	357	to use the Licensor's Intellectual Property Rights as provided
	358	for in this Agreement will cease upon the termination of this
	359	Agreement or as otherwise provided for in this clause 13.
	360
	361	13.2 The Licensee acknowledges that the grant of the Licence or any
	362	other terms of this Agreement do not in any way confer any right
	363	or licence upon the Licensee to use, exploit or otherwise utilise
	364	any rights relating to the Licensor's Intellectual Property
	365	Rights other than in accordance with the terms of this Agreement.
	366
	367	13.3 The Licensee agrees not to represent in any way that it has any
	368	title, right or interest in the ownership of the Licensor's
	369	Intellectual Property Rights nor do anything which might be
	370	contrary to the rights or interest of the Licensor in its
	371	Intellectual Property Rights nor seek to apply to register in its
	372	own name or that of any third party any part of the Licensor's
	373	Intellectual Property Rights and will assist the Licensor in any
	374	application to register any such Intellectual Property Rights
	375	belonging to the Licensor at the cost of the Licensor.
	376
	377	13.4 The Licensee agrees with the Licensor that it will notify the
	378	Licensor in writing as soon as practicable of any infringement,
	379	suspected infringement or alleged infringement relating to the
	380	Licensor's Intellectual Property Rights which comes to its
	381	knowledge provided that the Licensee will be deemed to have
	382	knowledge of any infringement, suspected infringement or alleged
	383	infringement if such infringement would have come to the
	384	Licensee's knowledge but for any negligence or wilful misconduct
	385	on the part of the Licensee.
	386
	387	13.5 In the event that proceedings are brought or threatened by a
	388	third party against the Licensee or the Licensor, alleging that
	389	the Licensee's use of the Product Materials constitutes an
	390	infringement of a third party's Intellectual Property Rights, the
	391	Licensor may at its option and at its own expense conduct the
	392	defence of such proceedings. As requested by the Licensor the
	393	Licensee shall provide all necessary co-operation, information
	394	and assistance to the Licensor in the conduct of the defence of
	395	such proceedings.
	396
	397	13.6 In the circumstances provided for in clause 13.5, but also where
	398	the Licensor acting entirely at its own discretion believes that
	399	there is a reasonable likelihood that infringement may currently
	400	exist or is likely to occur, the Licensee agrees with the
	401	Licensor that it will permit the Licensor, acting entirely in the
	402	Licensor's discretion to;
	403
	404	13.6.1 modify, alter or substitute the infringing or potentially
	405	infringing part of the Product Materials, at the Licensor's expense
	406	in order to avoid the infringement or potential infringement; or
	407
	408	13.6.2 procure for the Licensee the authority to continue with the use and
	409	possession of the infringing or potentially infringing part of the
	410	Product Materials.
	411
	412	13.7 If the remedies set out in clause 13.6 above are not in the
	413	Licensor's opinion reasonably available, then the Licensor shall be
	414	entitled to terminate the Licence and this Agreement immediately on
	415	written notice to the Licensee at which point the Licensee shall
	416	destroy all copies of the Product Materials within its possession and
	417	provide a written certificate from one of the Licensee's directors to
	418	the Licensor that such copies have been destroyed provided that the
	419	Licensor shall be entitled to enter upon the Licensee's premises to
	420	repossess any copies of the Product Materials in the possession,
	421	custody or control of the Licensee not returned or destroyed as
	422	provided for above.
	423
	424	13.8 The Licensee acknowledges that the Licensor will have no obligation
	425	to indemnify the Licensee against any damages, costs and losses
	426	incurred by the Licensee whether direct or consequential (including
	427	but without limitation any economic loss or other loss of turnover,
	428	profits, business or goodwill) in connection with any proceedings
	429	bought by a third party against the Licensee alleging that the
	430	Licensee's use of the Product Materials constitutes an infringement
	431	of that third party's Intellectual Property Rights.
	432
	433	13.9 The Licensee shall indemnify the Licensor against any loss, costs,
	434	expenses, demands or liability, whether direct or indirect, arising
	435	out of a claim by a third party pursuant to clause 13.5 where:
	436
	437	13.9.1 the claim arises from:
	438
	439	a) use of the Product Materials in combination with any equipment or
	440	programs where such use is not authorised by the terms of this
	441	Agreement or otherwise approved by the Licensor;
	442
	443	b) use of the Product Materials in a manner or for a purpose not
	444	specifically provided for by this Agreement or authorised by the
	445	Licensor;
	446
	447	c) modification or alteration of the Product Materials by the
	448	Licensee or any third party on behalf of the Licensee; and
	449
	450	d) any transaction entered into by the Licensee relating to the
	451	Product Materials without the Licensor's prior consent in writing
	452	which is not otherwise authorised by the terms of this Agreement;
	453	or
	454
	455	13.9.2 the ability of the Licensor to defend the claim has been prejudiced
	456	by the failure of the Licensee to comply with any requirements of
	457	clauses 13.4, 13.5 or 13.6.
	458
	459	13.10 The Licensee acknowledges that the Licensor is in no way liable to
	460	the Licensee in respect of any liability arising from the Licensee's
	461	use of any Third Party Software and the Licensee agrees to indemnify
	462	the Licensor on demand in the event of any liability suffered by the
	463	Licensor arising from the Licensee's use of the Third Party Software.
	464
	465	14. Warranties
	466
	467	14.1 To the fullest extent permitted at law, the Licensor:
	468
	469	14.1.1 disclaims all warranties with respect to the Software, either
	470	express or implied, including but not limited to any implied
	471	warranties relating to quality, fitness for any particular purpose
	472	or ability to achieve a particular result;
	473
	474	14.1.2 makes no warranty that the Software is error free or that use of
	475	the Software will be uninterrupted and the Licensee acknowledges
	476	and agrees that the existence of such errors shall not constitute a
	477	breach of this Agreement; and
	478
	479	14.1.3 does not give any warranty in respect of the Third Party Software.
	480
	481	14.2 The Licensee agrees that its sole remedy in respect of any
	482	non-conformance with any warranty that can not be excluded pursuant
	483	to clause 14.1 is that the Licensor will remedy such non-conformance
	484	(either by itself or through a third party) and if, in the Licensor's
	485	reasonable opinion, it is unable to remedy such non-conformance, the
	486	Licensor shall be entitled to terminate the Licence and this
	487	Agreement immediately on written notice to the Licensee at which
	488	point the Licensee shall destroy all copies of the Product Materials
	489	within its possession and provide a written certificate from one of
	490	the Licensee's directors to the Licensor that such copies have been
	491	destroyed provided that the Licensor shall be entitled to enter upon
	492	the Licensee's premises to repossess any copies of the Product
	493	Materials in the possession, custody or control of the Licensee not
	494	returned or destroyed as provided for above.
	495
	496	14.3 The Licensee will not disable or alter the display of the Software
	497	logo, as such is incorporated into any Products or generally
	498	displayed as a result of the use of the Software.
	499
	500	15. Liability
	501
	502	15.1 Except as provided for in clauses 13.9, 15.2, 15.3, 15.5 and 15.6
	503	and to the greatest extent permitted at law, under no
	504	circumstances will either party ("the first party"), its
	505	employees or its agents be liable to the other party ("the second
	506	party") in contract, tort, equity, statute, regulation or
	507	otherwise for any loss, damage, costs, legal costs, professional
	508	and other expenses of any nature whatsoever incurred or suffered
	509	by the second party, or by any other third party, whether direct
	510	or consequential (including but without limitation any economic
	511	loss or other loss of turnover, profits, business or goodwill)
	512	arising out of any dispute or contractual, tortuous or other
	513	claims or proceedings bought by the second party or which are
	514	alternatively bought against the second party as a result of the
	515	second party's breach of this Agreement.
	516
	517	15.2 Clause 15.1 shall not exclude any liability of the first party to
	518	the second party which arises from:
	519
	520	15.2.1 wilful misconduct or gross negligence on the part of the first
	521	party;
	522
	523	15.2.2 where the Licensee is the first party, any act or omission by any
	524	persons to whom the Licensee is permitted to disclose Information
	525	(as defined in clause 16.1) as set out in this Agreement, which, if
	526	done or omitted to be done by the Licensee, would be a breach of
	527	the Licensee's obligations under this Agreement,
	528
	529	and in respect of which the first party will indemnify the second party.
	530
	531	15.3 In the event that any limitation or provision contained in this
	532	Agreement is held to be invalid or unenforceable for any reason and
	533	the first party becomes liable for loss or damage that would
	534	otherwise have been excluded, to the greatest extent permitted at
	535	law, and also in respect of any liability pursuant to clause 15.2,
	536	the first party's maximum liability to the second party under the
	537	Agreement shall be limited to an amount equivalent to the Licence Fee
	538	paid by the Licensee pursuant to this Agreement.
	539
	540	15.4 Notwithstanding clause 15.1, to the greatest extent permitted at law,
	541	the parties agree that the first party shall not be liable to the
	542	second party in contract, tort, equity, statute, regulation or
	543	otherwise for any loss, damage, cost, legal costs, professional and
	544	other expenses of a consequential nature (including but without
	545	limitation any economic loss or other loss of turnover, profits,
	546	business or goodwill).
	547
	548	15.5 Notwithstanding clauses 15.1, 15.2, 15.3 and 15.4 the liability of
	549	the Licensee to the licensor shall not be limited in respect of any
	550	liability arising from the Licensee's breach of the Licensor's
	551	Intellectual Property Rights or any third party's Intellectual
	552	Property Rights.
	553
	554	15.6 The parties acknowledge and agree that the limitations contained in
	555	this clause 15 are reasonable in the light of all the circumstances.
	556
	557	15.7 Where the Licensee is obtaining the Product Materials and Support and
	558	Maintenance Services for business purposes the Licensee agrees the
	559	Consumer Guarantees Act 1993 does not apply.
	560
	561	15.8 The parties agree that to the greatest extent permitted at law the
	562	Sale of Goods Act 1908, the United Nations Convention on Contracts
	563	for the International Sale of Goods (1980) and the Sale of Goods
	564	(United Nations Convention) Act 1994 will not apply to this
	565	Agreement.
	566
	567	16. Confidential Information
	568
	569	16.1 The Licensee undertakes, except as provided below, to treat as
	570	confidential and keep secret all information marked
	571	'confidential' or which may reasonably be supposed to be
	572	confidential, including, without limitation, information
	573	contained or embodied in the Product Materials, the Specification
	574	and other information supplied by the Licensor to the Licensee
	575	(in this Agreement collectively referred to as 'the Information')
	576	with the same degree of care as the Licensee employs with regard
	577	to the Licensee's own confidential information of a like nature
	578	and in any event in accordance with best current commercial
	579	security practices, provided that, this clause shall not extend
	580	to any information which was rightfully in the possession of the
	581	Licensee prior to the commencement of this Agreement or which is
	582	already public knowledge or becomes so at a future date
	583	(otherwise than as a result of a breach of this clause).
	584
	585	16.2 The Licensee shall not without the prior written consent of the
	586	Licensor divulge any part of the Information to any person
	587	except:
	588
	589	16.2.1 to the Licensee's employees and then only to those employees to
	590	whom it is necessary to make such disclosure in order for the
	591	Licensee to meet its obligations under this Agreement;
	592
	593	16.2.2 to such other parties as may be reasonably necessary to enable the
	594	Licensee to meet its obligations under this Agreement;
	595
	596	16.2.3 to the Licensee's solicitors, insurers, accountants and auditors; and
	597
	598	16.2.4 where such disclosure is required, pursuant to any law, regulation,
	599	court order or valid government department or agency legal
	600	requirement, provided that the Licensee must:
	601
	602	a) promptly and if practicable before making the disclosure, notify
	603	the Licensor of that fact and identify the Information required to
	604	be so disclosed so that if practicable in the circumstances a
	605	protective order or other appropriate remedy may be sought; and
	606
	607	b) disclose only the minimum Information required to comply with the
	608	applicable law or order.
	609
	610	16.3 The Licensee undertakes to ensure that persons and bodies referred to
	611	in clause 16.2 are made aware before the disclosure of any part of
	612	the Information that the same is confidential and that they owe a
	613	duty of confidence to the Licensor.
	614
	615	16.4 The Licensee shall promptly notify the Licensor if it becomes aware
	616	of any breach of confidence by any person to whom the Licensee has
	617	divulged all or any part of the Information and the Licensee shall
	618	give the Licensor all reasonable assistance in connection with any
	619	proceedings which the Licensor may institute against such person for
	620	breach of confidence.
	621
	622	16.5 The foregoing obligations as to confidentiality shall remain in full
	623	force and effect notwithstanding any termination of the Licence or
	624	this Agreement.
	625
	626	16.6 The Licensor shall be entitled to identify the Licensee as a licensee
	627	of the Products in the Licensor's publicity materials.
	628
	629	16.7 If the Licensor authorises the Licensee to disclose any Information
	630	to any person the Licensee agrees at the request of the Licensor
	631	prior to such disclosure to have such person execute an
	632	acknowledgement to the effect that the Information is disclosed to
	633	that person in confidence.
	634
	635	17. Termination
	636
	637	17.1 Either party may terminate this Agreement immediately by notice in
	638	writing to the other if the other:
	639
	640	17.1.1 commits a material breach of this Agreement which is not capable of
	641	remedy; or
	642
	643	17.1.2 commits a breach of this Agreement which is capable of a remedy,
	644	and such breach is not remedied within 14 days of receipt by the
	645	other, of a notice from the innocent party identifying the breach
	646	and requiring its remedy; or
	647
	648	17.1.3 is unable to pay its debts or is deemed to be, or enters into
	649	liquidation (other than with the prior written agreement of the
	650	other party for the purpose of effecting a reconstruction or
	651	amalgamation in such manner that the company resulting from such
	652	reconstruction or amalgamation if a different legal entity agrees
	653	to be bound by and assume the obligations of the relevant party
	654	under this Agreement) or compounds with or compromises with or
	655	convenes a meeting of its creditors or has a receiver appointed
	656	over all or any part of its assets or takes or suffers any similar
	657	action in consequence of a debt, or ceases for any reason to carry
	658	on business.
	659
	660	17.2 For the avoidance of doubt the Licence will be deemed to terminate
	661	upon the termination of the Agreement and upon the termination of the
	662	Licence, the Licensee shall destroy all copies of the Product
	663	Materials within its possession and provide a written certificate
	664	from one of the Licensee's directors to the Licensor that such copies
	665	have been destroyed provided that the Licensor shall be entitled to
	666	enter upon the Licensee's premises to repossess any copies of the
	667	Product Materials in the possession, custody or control of the
	668	Licensee not returned or destroyed as provided for above.
	669
	670	17.3 Any termination of the Licence or this Agreement (howsoever
	671	occasioned) shall not affect any accrued rights or liabilities of
	672	either party nor shall it affect the coming into force or the
	673	continuance in force of any provision in this Agreement which is
	674	expressly stated as continuing in force on or after such termination.
	675
	676	18. Agency, Partnership
	677
	678	18.1 This Agreement shall not constitute or imply any partnership,
	679	joint venture, agency, fiduciary relationship or other
	680	relationship between the parties other than the contractual
	681	relationship expressly provided for in this Agreement.
	682
	683	19. Amendments
	684
	685	19.1 Except where expressly provided for in this Agreement, this
	686	Agreement may not be released, discharged, supplemented,
	687	interpreted, amended, varied or modified in any manner except by
	688	an instrument in writing signed by a duly authorised officer or
	689	representative of each of the parties.
	690
	691	20. Announcements
	692
	693	20.1 Except where expressly provided for in this Agreement, no party
	694	shall issue or make any public announcement or disclose any
	695	information regarding this Agreement unless prior written consent
	696	has been obtained from the other party.
	697
	698	21. Assignment
	699
	700	21.1 The Licensee may not assign or otherwise deal with any of its
	701	rights or obligations under this Agreement.
	702
	703	22. Entire Agreement
	704
	705	22.1 This Agreement supersedes all prior agreements, arrangements and
	706	undertakings between the parties and constitutes the entire
	707	agreement between the parties relating to the subject matter of
	708	this Agreement. The parties confirm that they have not entered
	709	into this Agreement on the basis of any representation that is
	710	not expressly incorporated into this Agreement.
	711
	712	23. Force Majeure
	713
	714	23.1 Neither party is in breach of this Agreement if its breach is
	715	caused by an act of God, fire, act of government or state, war,
	716	terrorism, sabotage, civil commotion, insurrection, embargo,
	717	prevention from or hindrance in obtaining any raw materials,
	718	energy or other supplies, labour disputes of whatever nature
	719	including strikes and lockouts, piracy, destruction of essential
	720	equipment by fire, explosion, storm, flood or earthquake, medical
	721	epidemic and delay caused by failure of power supplies or
	722	transport facilities or any other reason beyond the reasonable
	723	control of a party.
	724
	725	24. Notices
	726
	727	24.1 All notices in relation to this Agreement must be served by email
	728	to the email address used by either party from time to time to
	729	communicate with the other party.
	730
	731	25. Schedules
	732
	733	25.1 The provisions of Schedule 1 shall form part of this Agreement as
	734	if set out here.
	735
	736	26. Severance
	737
	738	26.1 If any provision of this Agreement is prohibited by law or judged
	739	by a court to be unlawful, void or unenforceable, the provision
	740	shall, to the extent required, be severed from this Agreement and
	741	rendered ineffective as far as possible without modifying the
	742	remaining provisions of this Agreement, and shall not in any way
	743	affect any other circumstances of or the validity or enforcement
	744	of this Agreement.
	745
	746	27. Waiver
	747
	748	27.1 No delay, neglect or forbearance on the part of either party in
	749	enforcing against the other party any term or condition of this
	750	Agreement shall either be or be deemed to be a waiver or in any
	751	way prejudice any right of that party under this Agreement. No
	752	right, power or remedy in this Agreement conferred upon or
	753	reserved for either party is exclusive of any other right, power
	754	or remedy available to that party.
	755
	756	28. Subcontracting
	757
	758	28.1 The Licensee agrees that the Licensor may perform any or all of
	759	its obligations under this Agreement through agents or
	760	sub-contractors.
	761
	762	29. Survival of Agreement
	763
	764	29.1 The provisions of clauses 12 (Proprietary Rights), 13
	765	(Intellectual Property Rights), 14 (Warranties), 15 (Liability),
	766	16 (Confidential Information) clauses 17.2 and 17.3 (Termination)
	767	and this clause 29 survive the termination or expiry of this
	768	Agreement for whatever reason.
	769
	770	30. Language
	771
	772	30.1 This Agreement is made only in the English language. If there is
	773	any conflict in the meaning between the English language version
	774	of this Agreement and any version or translation of it in any
	775	other language, the English language version shall prevail.
	776
	777	31. Proper Law and Jurisdiction
	778
	779	31.1 This Agreement and all matters arising from it and any dispute
	780	resolutions referred to below shall be governed by and construed in
	781	accordance with New Zealand law notwithstanding the conflict of law
	782	provisions and other mandatory legal provisions.
	783
	784	31.2 Subject to clause 31.8 and 31.11 the procedures set out in clauses
	785	31.3 to 31.9 shall apply to all disputes arising under this
	786	Agreement.
	787
	788	31.3 Where there is a dispute, the aggrieved party shall notify the other
	789	party in writing of the nature of the dispute, with as much detail as
	790	possible about the deficient performance of the other party. A
	791	representative from senior management of each of the parties
	792	("representatives") shall meet in person or communicate by telephone
	793	within 5 business days of the date of the written notification in
	794	order to reach an agreement about the nature of the deficiency and
	795	the corrective action to be taken by the respective parties.
	796
	797	31.4 If the dispute pursuant to clause 31.3 cannot be resolved within 10
	798	business days of the date of the written notification provided for in
	799	clause 31.3, or if the agreed upon completion dates in any written
	800	plan of corrective action are exceeded, the parties will refer the
	801	dispute to a single arbitrator to be chosen by the parties or, if
	802	they cannot agree, chosen by the President of the New Zealand Law
	803	Society, or the President's nominee and such arbitration will be
	804	conducted in New Zealand in accordance with the Rules in Schedules 1
	805	and 2 of the Arbitration Act 1996.
	806
	807	31.5 The parties must always act in good faith and co-operate with each
	808	other to promptly resolve any dispute.
	809
	810	31.6 The arbitrator will fix the procedures and time frames for the
	811	arbitration if the parties cannot agree.
	812
	813	31.7 The parties must continue to comply with their obligations under this
	814	Agreement during the dispute resolution process.
	815
	816	31.8 This clause will not apply to:
	817
	818	31.8.1 a dispute arising in connection with any attempted re-negotiation
	819	of this Agreement; or
	820
	821	31.8.2 any application by either party for urgent interlocutory relief.
	822
	823	31.9 If the parties cannot resolve the dispute by the procedure set out
	824	above, the parties shall irrevocably submit to the exclusive
	825	jurisdiction of the courts of New Zealand for the purposes of hearing
	826	and determining any dispute arising out of this Agreement.
	827
	828	31.10 Each party recognises that the other party's business relies upon the
	829	protection of its Intellectual Property Rights and that in the event
	830	of a breach of Intellectual Property Rights, the other party will be
	831	caused irreparable damage and such other party may therefore be
	832	entitled to injunctive or other equitable relief in order to prevent
	833	a breach or threatened breach of its Intellectual Property Rights.
	834
	835	31.11 Notwithstanding clause 31.1 to 31.7 and clause 31.9, the parties
	836	agree that:
	837
	838	31.11.1 the Licensor shall have the right to sue to recover any amounts
	839	owing to it in any jurisdiction in which the Licensee is operating
	840	or has assets; and
	841
	842	31.11.2 in the event of any breach or potential breach of its Intellectual
	843	Property Rights the Licensor shall have the right to sue for breach
	844	of its Intellectual Property Rights (whether in connection with
	845	this Agreement or otherwise) in any country where it believes that
	846	infringement or a breach or potential infringement or breach of
	847	this Agreement relating to its Intellectual Property Rights is or
	848	is likely to take place.
850	849
851	850	SCHEDULE 1