Changes between Version 3 and Version 4 of LicenseAgreements/SoftwareLicenseAgreement

Author:: peterc (IP: 202.68.89.228)
Timestamp:: 01/09/08 12:25:54 (10 years ago)
Comment:: --

Legend:

: Unmodified
: Added
: Removed
: Modified

LicenseAgreements/SoftwareLicenseAgreement

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
92	92	"Website" means the libRocket website located at www.[4]librocket.com.
93	93
94		2. Grant of Licence
95
96		1. Upon payment of any applicable Licence Fee or in the event no
97		Licence Fee is payable pursuant to clause 5.1, on any use being
98		made of the Software, ("Commencement Date") the Licensor grants
99		to the Licensee subject to the terms and conditions contained in
100		this Agreement, a non-exclusive licence for the use of the
101		Software in relation to the Project ("Licence"). Subject to the
102		payment of any applicable Licence Fee as provided for in clause
103		5, the Licence allows the Licensee to use the Software for the
104		Licensee's own internal purposes in relation to the Project
105		including as applicable in the course of the Licensee's ordinary
106		business activities as they relate to the Project and also to
107		incorporate the Software into products related to the Project
108		offered for sale or for free use to the public ("Products") by
109		the Licensee, provided that the Software is not the main
110		component of such Products and such Products do not provide for
111		the Software to be directly accessed and utilised in its own
112		right.
113
114		2. The Licence shall not entitle the Licensee to have access to the
115		Source Code in respect of the Software or to create or to attempt
116		to create the same.
117
118		3. Licence Term
119
120		1. The Licence shall commence on the Commencement Date and shall
121		continue until terminated in accordance with the provisions of
122		this Agreement ("Term").
123
124		2. Under no circumstance will the Licensee be entitled to grant a
125		sub-licence in respect of the Licence or any part of the Licence
126		or otherwise deal with its rights and obligations in respect of
127		the Licence.
128
129		4. Support and Maintenance Services Term
130
131		1. The Support and Maintenance Services shall commence on the
132		Commencement Date and shall continue until the end of the Term.
133
134		5. Payment
135
136		1. In the event that the Licensee uses the Software only for their
137		own personal use or where the Products are distributed for free
138		in a Very Low Volume, the Licensee will not be required to pay a
139		Licence Fee to the Licensor but in return for the benefit the
140		Licensee receives from using the Software the Licensee
141		acknowledges that they will at all times still be bound by the
142		terms of this Agreement.
143
144		2. In the event that the Licensee incorporates the Software into
145		Products, but such Products are sold in Very Low Volume, the
146		Licensee will only be required to pay a Licence Fee of two
147		hundred and fifty United States dollars ($250.00 USD).
148
149		3. To qualify for the Licence Fee exception pursuant to clause 5.1
150		or the Licence Fee outlined in clause 5.2, the Licensee must also
151		ensure that:
152
153		1. they are an individual or partnership and not a registered
154		company;
155
156		2. the Project to which the Licence is to apply produces
157		Products that are of a shareware or hobby type nature and
158		which if sold are sold for ten New Zealand dollars or less
159		($NZ10.00); and
160
161		3. they obtain the approval of the Licensor that the Project
162		to which the Licence is to apply comes within the terms of
163		clauses 5.1 or 5.2 as applicable and clauses 5.3.1 and
164		5.3.2.
165
166		4. In the event that the Licensee incorporates the Software into
167		Products which are sold or distributed for free in any volumes
168		greater than Very Low Volumes the Licensee will be required to
169		pay a Licence Fee of three thousand United States dollars ($3000.00 USD).
170
171		5. It is the Licensee's responsibility to ensure they have paid any
172		applicable Licence Fee provided for in clauses 5.2 and 5.4 prior
173		to making any use of the Software. Once paid the Licence Fee is
174		non-refundable and the Licensor may terminate or suspend any
175		Licence granted pursuant to this Agreement immediately on notice
176		to the Licensee in the event any applicable Licence Fees due as
177		defined in clauses 5.2 and 5.4 are unpaid and the Licensee will
178		also indemnify the Licensor on demand for any direct and indirect
179		costs of any nature whatsoever reasonably incurred by the
180		Licensor in the course of securing the payment of any such unpaid
181		Licence Fees.
182
183		6. The Licensee shall pay the Licence Fee to the Licensor by way of
184		credit card payment in the manner provided for via the Website.
185
186		7. The Licence Fee is exclusive of any applicable Taxes including
187		without limitation Goods and Services Tax ("GST") pursuant to the
188		Goods and Services Tax Act 1985.
189
190		8. Notwithstanding clause 5.7 in the event that the Licensee is or
191		becomes liable to pay or otherwise account for any Taxes, the
192		payment of any amounts due under this Agreement will be adjusted
193		to ensure that after the payment or accounting for of such Taxes
194		the Licensor will receive the original amount that was due to it
195		under this Agreement.
196
197		6. Delivery
198
199		1. The Licensee shall download the Software from the Website.
200
201		7. Support and Maintenance Services
202
203		1. During the Term the Licensor shall upon receipt of a Support Request
204		provide the Licensee with the following Support and Maintenance
205		Services by email in the following manner:
206
207		1. Where an Error occurs the Licensee shall supply in writing to the
208		Licensor a detailed description of the Error requiring Error
209		Correction and the circumstances in which it arose, and shall
210		submit sufficient material and information to enable the Licensor
211		to duplicate the Error, following which the Licensor will provide
212		Error Correction in respect of the Error.
213
214		4. Exclusions:
215
216		a. The Licensor shall be under no obligation to provide Support and
217		Maintenance Services in respect of:
218
219		i. any defects or errors resulting from any modifications or
220		customisation of the Software made by any other person other than
221		the Licensor;
222
223		ii. incorrect or unauthorised use of the Software or operator error
224		where these are defined as use or operation not in accordance
225		with the Documentation;
226
227		iii. any fault in the Equipment or in any programs used in
228		conjunction with the Software;
229
230		iv. any defects or errors caused by the use of the Software on or
231		with any Equipment which is not approved in writing by the
232		Licensor or in conjunction with any other software which is not
233		approved in writing by the Licensor;
234
235		v. any software or programs other than the Software;
236
237		vi. any other of the Licensee's computer hardware, other equipment,
238		or any data feeds or external data; and
239
240		vii. the Licensee's failure to install and use upon the Equipment in
241		substitution for the previous release any new release of the
242		Software which includes updates or bug fixes in respect of the
243		Licensee's version of the Software within 90 days of such new
244		release of the Software being available for download from the
245		Website.
246
247		1. The Licensor will respond to any Support Request by email within 48
248		hours of its receipt and will attempt to provide the required Support
249		and Maintenance Services within the same time period.
250
251		2. In addition to making use of the Support and Maintenance Services
252		provided for in clauses 7.1 and 7.2 the Licensee is also entitled to
253		make use of the Forums on such the terms and conditions as are
254		specified on the Website from time to time in respect of use of the
255		Forums.
256
257		3. Notwithstanding clauses 7.1, 7.2 and 7.3, the Licensee acknowledges
258		that in the event they are not required to pay a Licence Fee as
259		provided for by clause 5.1, the Licensee will not be entitled to make
260		use of the Support and Maintenance Services as described in clauses
261		7.1 and 7.2 but will be entitled to make use of the Forums as
262		provided for by clause 7.3.
263
264		8. New Releases
265
266		1. During the Term the Licensor shall notify the Licensee by email,
267		where the Licensee has registered on the Website to receive such
268		notification, of any new release of the Software that is available
269		for download from the Website.
270
271		2. Notwithstanding clause 8.1, although the Licensee will be entitled to
272		download any new releases of the Software as part of the Support and
273		Maintenance Services, for the avoidance of doubt the Licensee will
274		not be entitled to download and use any later version of the Software
275		without paying a further applicable Licence Fee as defined in clauses
276		5.2 and 5.4 in respect of that new version of the Software.
277
278		3. In the event of any confusion as to whether a new release of the
279		Software is actually a new version of the Software the Licensor's
280		decision shall be final.
281
282		1. The Licensor may from time to time, acting entirely at its own
283		discretion, make such modifications to the current release of the
284		Software as shall ensure that the current release conforms to any
285		legal requirements or change of legislation. In the event that the
286		Licensor acting reasonably does not believe that it is technically
287		possible or commercially justifiable for it to make such
288		modifications then the Licensor shall be entitled to terminate this
289		Agreement on 30 days written notice to the Licensee. Where the
290		Licensor does make modifications to the current release of the
291		Software ("Modified Software") in accordance with the terms of this
292		Agreement, the Licensor shall make such Modified Software available
293		for download from the Website. The Licensee shall be required to as
294		soon as reasonably possible adopt such Modified Software. Failure by
295		the Licensee to adopt such Modified Software within 90 days of any
296		such new release of the Software being made available for download
297		from the Website, shall entitle the Licensor to terminate this
298		Agreement immediately on written notice to the Licensee.
299
300		2. Any new release of the Software or Modified Software adopted by the
301		Licensee shall become the current release and the provisions of this
302		Agreement shall apply accordingly.
303
304		9. Licensee's Obligations
305
306		1. The Licensee shall operate the Software in accordance with the
307		Specification and Documentation.
308
309		10. Restrictions on Alterations
310
311		1. If the Software within the Licensee's control pursuant to the
312		Licence is modified or altered by the Licensee, the Licensee will
313		fully indemnify the Licensor against all liability which may be
314		incurred by the Licensor if such modifications or alterations
315		infringe any Intellectual Property Rights of a third person or
316		otherwise cause the Licensor to suffer loss, damages or expense.
317
318		2. The Software within the Licensee's control pursuant to the
319		Licence remains the property of the Licensor in all respects.
320
321		11. Security and Control
322
323		1. The Licensee shall during the continuance of the Licence effect
324		and maintain security measures in accordance with accepted
325		industry standards to safeguard the Software from access or use
326		by any unauthorised person.
327
328		12. Proprietary Rights
329
330		1. The Product Materials and the Intellectual Property Rights of
331		whatever nature in the Product Materials (excluding any third
332		party rights in respect of Third Party Software) are and shall
333		remain the property of the Licensor.
334
335		2. The Licensee shall notify the Licensor immediately if the
336		Licensee becomes aware of any unauthorised use of the whole or
337		any part of the Product Materials by any person.
338
339		3. The Third Party Software at all times remains the property of the
340		applicable third party and the Licensee's use of such Third Party
341		Software is at all times governed by the provisions of any
342		applicable licence relating to any such Third Party Software.
343
344		13. Intellectual Property Rights
345
346		1. The Licensee acknowledges that the Licence granted pursuant to
347		clause 2 does not grant any transfer of title or ownership to the
348		Licensee of any Licensor's Intellectual Property Rights including
349		without limitation in the Product Materials. The Licensee's right
350		to use the Licensor's Intellectual Property Rights as provided
351		for in this Agreement will cease upon the termination of this
352		Agreement or as otherwise provided for in this clause 13.
353
354		2. The Licensee acknowledges that the grant of the Licence or any
355		other terms of this Agreement do not in any way confer any right
356		or licence upon the Licensee to use, exploit or otherwise utilise
357		any rights relating to the Licensor's Intellectual Property
358		Rights other than in accordance with the terms of this Agreement.
359
360		3. The Licensee agrees not to represent in any way that it has any
361		title, right or interest in the ownership of the Licensor's
362		Intellectual Property Rights nor do anything which might be
363		contrary to the rights or interest of the Licensor in its
364		Intellectual Property Rights nor seek to apply to register in its
365		own name or that of any third party any part of the Licensor's
366		Intellectual Property Rights and will assist the Licensor in any
367		application to register any such Intellectual Property Rights
368		belonging to the Licensor at the cost of the Licensor.
369
370		4. The Licensee agrees with the Licensor that it will notify the
371		Licensor in writing as soon as practicable of any infringement,
372		suspected infringement or alleged infringement relating to the
373		Licensor's Intellectual Property Rights which comes to its
374		knowledge provided that the Licensee will be deemed to have
375		knowledge of any infringement, suspected infringement or alleged
376		infringement if such infringement would have come to the
377		Licensee's knowledge but for any negligence or wilful misconduct
378		on the part of the Licensee.
379
380		5. In the event that proceedings are brought or threatened by a
381		third party against the Licensee or the Licensor, alleging that
382		the Licensee's use of the Product Materials constitutes an
383		infringement of a third party's Intellectual Property Rights, the
384		Licensor may at its option and at its own expense conduct the
385		defence of such proceedings. As requested by the Licensor the
386		Licensee shall provide all necessary co-operation, information
387		and assistance to the Licensor in the conduct of the defence of
388		such proceedings.
389
390		6. In the circumstances provided for in clause 13.5, but also where
391		the Licensor acting entirely at its own discretion believes that
392		there is a reasonable likelihood that infringement may currently
393		exist or is likely to occur, the Licensee agrees with the
394		Licensor that it will permit the Licensor, acting entirely in the
395		Licensor's discretion to;
396
397		1. modify, alter or substitute the infringing or potentially
398		infringing part of the Product Materials, at the Licensor's expense
399		in order to avoid the infringement or potential infringement; or
400
401		5. procure for the Licensee the authority to continue with the use and
402		possession of the infringing or potentially infringing part of the
403		Product Materials.
404
405		7. If the remedies set out in clause 13.6 above are not in the
406		Licensor's opinion reasonably available, then the Licensor shall be
407		entitled to terminate the Licence and this Agreement immediately on
408		written notice to the Licensee at which point the Licensee shall
409		destroy all copies of the Product Materials within its possession and
410		provide a written certificate from one of the Licensee's directors to
411		the Licensor that such copies have been destroyed provided that the
412		Licensor shall be entitled to enter upon the Licensee's premises to
413		repossess any copies of the Product Materials in the possession,
414		custody or control of the Licensee not returned or destroyed as
415		provided for above.
416
417		8. The Licensee acknowledges that the Licensor will have no obligation
418		to indemnify the Licensee against any damages, costs and losses
419		incurred by the Licensee whether direct or consequential (including
420		but without limitation any economic loss or other loss of turnover,
421		profits, business or goodwill) in connection with any proceedings
422		bought by a third party against the Licensee alleging that the
423		Licensee's use of the Product Materials constitutes an infringement
424		of that third party's Intellectual Property Rights.
425
426		9. The Licensee shall indemnify the Licensor against any loss, costs,
427		expenses, demands or liability, whether direct or indirect, arising
428		out of a claim by a third party pursuant to clause 13.5 where:
429
430		1. the claim arises from:
431
432		b. use of the Product Materials in combination with any equipment or
433		programs where such use is not authorised by the terms of this
434		Agreement or otherwise approved by the Licensor;
435
436		c. use of the Product Materials in a manner or for a purpose not
437		specifically provided for by this Agreement or authorised by the
438		Licensor;
439
440		d. modification or alteration of the Product Materials by the
441		Licensee or any third party on behalf of the Licensee; and
442
443		e. any transaction entered into by the Licensee relating to the
444		Product Materials without the Licensor's prior consent in writing
445		which is not otherwise authorised by the terms of this Agreement;
446		or
447
448		6. the ability of the Licensor to defend the claim has been prejudiced
449		by the failure of the Licensee to comply with any requirements of
450		clauses 13.4, 13.5 or 13.6.
451
452		10. The Licensee acknowledges that the Licensor is in no way liable to
453		the Licensee in respect of any liability arising from the Licensee's
454		use of any Third Party Software and the Licensee agrees to indemnify
455		the Licensor on demand in the event of any liability suffered by the
456		Licensor arising from the Licensee's use of the Third Party Software.
457
458		14. Warranties
459
460		1. To the fullest extent permitted at law, the Licensor:
461
462		1. disclaims all warranties with respect to the Software, either
463		express or implied, including but not limited to any implied
464		warranties relating to quality, fitness for any particular purpose
465		or ability to achieve a particular result;
466
467		7. makes no warranty that the Software is error free or that use of
468		the Software will be uninterrupted and the Licensee acknowledges
469		and agrees that the existence of such errors shall not constitute a
470		breach of this Agreement; and
471
472		8. does not give any warranty in respect of the Third Party Software.
473
474		2. The Licensee agrees that its sole remedy in respect of any
475		non-conformance with any warranty that can not be excluded pursuant
476		to clause 14.1 is that the Licensor will remedy such non-conformance
477		(either by itself or through a third party) and if, in the Licensor's
478		reasonable opinion, it is unable to remedy such non-conformance, the
479		Licensor shall be entitled to terminate the Licence and this
480		Agreement immediately on written notice to the Licensee at which
481		point the Licensee shall destroy all copies of the Product Materials
482		within its possession and provide a written certificate from one of
483		the Licensee's directors to the Licensor that such copies have been
484		destroyed provided that the Licensor shall be entitled to enter upon
485		the Licensee's premises to repossess any copies of the Product
486		Materials in the possession, custody or control of the Licensee not
487		returned or destroyed as provided for above.
488
489		3. The Licensee will not disable or alter the display of the Software
490		logo, as such is incorporated into any Products or generally
491		displayed as a result of the use of the Software.
492
493		15. Liability
494
495		1. Except as provided for in clauses 13.9, 15.2, 15.3, 15.5 and 15.6
496		and to the greatest extent permitted at law, under no
497		circumstances will either party ("the first party"), its
498		employees or its agents be liable to the other party ("the second
499		party") in contract, tort, equity, statute, regulation or
500		otherwise for any loss, damage, costs, legal costs, professional
501		and other expenses of any nature whatsoever incurred or suffered
502		by the second party, or by any other third party, whether direct
503		or consequential (including but without limitation any economic
504		loss or other loss of turnover, profits, business or goodwill)
505		arising out of any dispute or contractual, tortuous or other
506		claims or proceedings bought by the second party or which are
507		alternatively bought against the second party as a result of the
508		second party's breach of this Agreement.
509
510		2. Clause 15.1 shall not exclude any liability of the first party to
511		the second party which arises from:
512
513		1. wilful misconduct or gross negligence on the part of the first
514		party;
515
516		9. where the Licensee is the first party, any act or omission by any
517		persons to whom the Licensee is permitted to disclose Information
518		(as defined in clause 16.1) as set out in this Agreement, which, if
519		done or omitted to be done by the Licensee, would be a breach of
520		the Licensee's obligations under this Agreement,
521
522		and in respect of which the first party will indemnify the second party.
523
524		3. In the event that any limitation or provision contained in this
525		Agreement is held to be invalid or unenforceable for any reason and
526		the first party becomes liable for loss or damage that would
527		otherwise have been excluded, to the greatest extent permitted at
528		law, and also in respect of any liability pursuant to clause 15.2,
529		the first party's maximum liability to the second party under the
530		Agreement shall be limited to an amount equivalent to the Licence Fee
531		paid by the Licensee pursuant to this Agreement.
532
533		4. Notwithstanding clause 15.1, to the greatest extent permitted at law,
534		the parties agree that the first party shall not be liable to the
535		second party in contract, tort, equity, statute, regulation or
536		otherwise for any loss, damage, cost, legal costs, professional and
537		other expenses of a consequential nature (including but without
538		limitation any economic loss or other loss of turnover, profits,
539		business or goodwill).
540
541		5. Notwithstanding clauses 15.1, 15.2, 15.3 and 15.4 the liability of
542		the Licensee to the licensor shall not be limited in respect of any
543		liability arising from the Licensee's breach of the Licensor's
544		Intellectual Property Rights or any third party's Intellectual
545		Property Rights.
546
547		6. The parties acknowledge and agree that the limitations contained in
548		this clause 15 are reasonable in the light of all the circumstances.
549
550		7. Where the Licensee is obtaining the Product Materials and Support and
551		Maintenance Services for business purposes the Licensee agrees the
552		Consumer Guarantees Act 1993 does not apply.
553
554		8. The parties agree that to the greatest extent permitted at law the
555		Sale of Goods Act 1908, the United Nations Convention on Contracts
556		for the International Sale of Goods (1980) and the Sale of Goods
557		(United Nations Convention) Act 1994 will not apply to this
558		Agreement.
559
560		16. Confidential Information
561
562		1. The Licensee undertakes, except as provided below, to treat as
563		confidential and keep secret all information marked
564		'confidential' or which may reasonably be supposed to be
565		confidential, including, without limitation, information
566		contained or embodied in the Product Materials, the Specification
567		and other information supplied by the Licensor to the Licensee
568		(in this Agreement collectively referred to as 'the Information')
569		with the same degree of care as the Licensee employs with regard
570		to the Licensee's own confidential information of a like nature
571		and in any event in accordance with best current commercial
572		security practices, provided that, this clause shall not extend
573		to any information which was rightfully in the possession of the
574		Licensee prior to the commencement of this Agreement or which is
575		already public knowledge or becomes so at a future date
576		(otherwise than as a result of a breach of this clause).
577
578		2. The Licensee shall not without the prior written consent of the
579		Licensor divulge any part of the Information to any person
580		except:
581
582		1. to the Licensee's employees and then only to those employees to
583		whom it is necessary to make such disclosure in order for the
584		Licensee to meet its obligations under this Agreement;
585
586		2. to such other parties as may be reasonably necessary to enable the
587		Licensee to meet its obligations under this Agreement;
588
589		10. to the Licensee's solicitors, insurers, accountants and auditors;
590		and
591
592		11. where such disclosure is required, pursuant to any law, regulation,
593		court order or valid government department or agency legal
594		requirement, provided that the Licensee must:
595
596		a. promptly and if practicable before making the disclosure, notify
597		the Licensor of that fact and identify the Information required to
598		be so disclosed so that if practicable in the circumstances a
599		protective order or other appropriate remedy may be sought; and
600
601		a. disclose only the minimum Information required to comply with the
602		applicable law or order.
603
604		3. The Licensee undertakes to ensure that persons and bodies referred to
605		in clause 16.2 are made aware before the disclosure of any part of
606		the Information that the same is confidential and that they owe a
607		duty of confidence to the Licensor.
608
609		4. The Licensee shall promptly notify the Licensor if it becomes aware
610		of any breach of confidence by any person to whom the Licensee has
611		divulged all or any part of the Information and the Licensee shall
612		give the Licensor all reasonable assistance in connection with any
613		proceedings which the Licensor may institute against such person for
614		breach of confidence.
615
616		5. The foregoing obligations as to confidentiality shall remain in full
617		force and effect notwithstanding any termination of the Licence or
618		this Agreement.
619
620		6. The Licensor shall be entitled to identify the Licensee as a licensee
621		of the Products in the Licensor's publicity materials.
622
623		1. If the Licensor authorises the Licensee to disclose any Information
624		to any person the Licensee agrees at the request of the Licensor
625		prior to such disclosure to have such person execute an
626		acknowledgement to the effect that the Information is disclosed to
627		that person in confidence.
628
629		17. Termination
630
631		1. Either party may terminate this Agreement immediately by notice in
632		writing to the other if the other:
633
634		1. commits a material breach of this Agreement which is not capable of
635		remedy; or
636
637		12. commits a breach of this Agreement which is capable of a remedy,
638		and such breach is not remedied within 14 days of receipt by the
639		other, of a notice from the innocent party identifying the breach
640		and requiring its remedy; or
641
642		13. is unable to pay its debts or is deemed to be, or enters into
643		liquidation (other than with the prior written agreement of the
644		other party for the purpose of effecting a reconstruction or
645		amalgamation in such manner that the company resulting from such
646		reconstruction or amalgamation if a different legal entity agrees
647		to be bound by and assume the obligations of the relevant party
648		under this Agreement) or compounds with or compromises with or
649		convenes a meeting of its creditors or has a receiver appointed
650		over all or any part of its assets or takes or suffers any similar
651		action in consequence of a debt, or ceases for any reason to carry
652		on business.
653
654		1. For the avoidance of doubt the Licence will be deemed to terminate
655		upon the termination of the Agreement and upon the termination of the
656		Licence, the Licensee shall destroy all copies of the Product
657		Materials within its possession and provide a written certificate
658		from one of the Licensee's directors to the Licensor that such copies
659		have been destroyed provided that the Licensor shall be entitled to
660		enter upon the Licensee's premises to repossess any copies of the
661		Product Materials in the possession, custody or control of the
662		Licensee not returned or destroyed as provided for above.
663
664		2. Any termination of the Licence or this Agreement (howsoever
665		occasioned) shall not affect any accrued rights or liabilities of
666		either party nor shall it affect the coming into force or the
667		continuance in force of any provision in this Agreement which is
668		expressly stated as continuing in force on or after such termination.
669
670		18. Agency, Partnership
671
672		1. This Agreement shall not constitute or imply any partnership,
673		joint venture, agency, fiduciary relationship or other
674		relationship between the parties other than the contractual
675		relationship expressly provided for in this Agreement.
676
677		19. Amendments
678
679		1. Except where expressly provided for in this Agreement, this
680		Agreement may not be released, discharged, supplemented,
681		interpreted, amended, varied or modified in any manner except by
682		an instrument in writing signed by a duly authorised officer or
683		representative of each of the parties.
684
685		20. Announcements
686
687		1. Except where expressly provided for in this Agreement, no party
688		shall issue or make any public announcement or disclose any
689		information regarding this Agreement unless prior written consent
690		has been obtained from the other party.
691
692		21. Assignment
693
694		1. The Licensee may not assign or otherwise deal with any of its
695		rights or obligations under this Agreement.
696
697		22. Entire Agreement
698
699		1. This Agreement supersedes all prior agreements, arrangements and
700		undertakings between the parties and constitutes the entire
701		agreement between the parties relating to the subject matter of
702		this Agreement. The parties confirm that they have not entered
703		into this Agreement on the basis of any representation that is
704		not expressly incorporated into this Agreement.
705
706		23. Force Majeure
707
708		1. Neither party is in breach of this Agreement if its breach is
709		caused by an act of God, fire, act of government or state, war,
710		terrorism, sabotage, civil commotion, insurrection, embargo,
711		prevention from or hindrance in obtaining any raw materials,
712		energy or other supplies, labour disputes of whatever nature
713		including strikes and lockouts, piracy, destruction of essential
714		equipment by fire, explosion, storm, flood or earthquake, medical
715		epidemic and delay caused by failure of power supplies or
716		transport facilities or any other reason beyond the reasonable
717		control of a party.
718
719		24. Notices
720
721		1. All notices in relation to this Agreement must be served by email
722		to the email address used by either party from time to time to
723		communicate with the other party.
724
725		25. Schedules
726
727		1. The provisions of Schedule 1 shall form part of this Agreement as
728		if set out here.
729
730		26. Severance
731
732		1. If any provision of this Agreement is prohibited by law or judged
733		by a court to be unlawful, void or unenforceable, the provision
734		shall, to the extent required, be severed from this Agreement and
735		rendered ineffective as far as possible without modifying the
736		remaining provisions of this Agreement, and shall not in any way
737		affect any other circumstances of or the validity or enforcement
738		of this Agreement.
739
740		27. Waiver
741
742		1. No delay, neglect or forbearance on the part of either party in
743		enforcing against the other party any term or condition of this
744		Agreement shall either be or be deemed to be a waiver or in any
745		way prejudice any right of that party under this Agreement. No
746		right, power or remedy in this Agreement conferred upon or
747		reserved for either party is exclusive of any other right, power
748		or remedy available to that party.
749
750		28. Subcontracting
751
752		1. The Licensee agrees that the Licensor may perform any or all of
753		its obligations under this Agreement through agents or
754		sub-contractors.
755
756		29. Survival of Agreement
757
758		1. The provisions of clauses 12 (Proprietary Rights), 13
759		(Intellectual Property Rights), 14 (Warranties), 15 (Liability),
760		16 (Confidential Information) clauses 17.2 and 17.3 (Termination)
761		and this clause 29 survive the termination or expiry of this
762		Agreement for whatever reason.
763
764		30. Language
765
766		1. This Agreement is made only in the English language. If there is
767		any conflict in the meaning between the English language version
768		of this Agreement and any version or translation of it in any
769		other language, the English language version shall prevail.
770
771		31. Proper Law and Jurisdiction
772
773		1. This Agreement and all matters arising from it and any dispute
774		resolutions referred to below shall be governed by and construed in
775		accordance with New Zealand law notwithstanding the conflict of law
776		provisions and other mandatory legal provisions.
777
778		2. Subject to clause 31.8 and 31.11 the procedures set out in clauses
779		31.3 to 31.9 shall apply to all disputes arising under this
780		Agreement.
781
782		3. Where there is a dispute, the aggrieved party shall notify the other
783		party in writing of the nature of the dispute, with as much detail as
784		possible about the deficient performance of the other party. A
785		representative from senior management of each of the parties
786		("representatives") shall meet in person or communicate by telephone
787		within 5 business days of the date of the written notification in
788		order to reach an agreement about the nature of the deficiency and
789		the corrective action to be taken by the respective parties.
790
791		1. If the dispute pursuant to clause 31.3 cannot be resolved within 10
792		business days of the date of the written notification provided for in
793		clause 31.3, or if the agreed upon completion dates in any written
794		plan of corrective action are exceeded, the parties will refer the
795		dispute to a single arbitrator to be chosen by the parties or, if
796		they cannot agree, chosen by the President of the New Zealand Law
797		Society, or the President's nominee and such arbitration will be
798		conducted in New Zealand in accordance with the Rules in Schedules 1
799		and 2 of the Arbitration Act 1996.
800
801		2. The parties must always act in good faith and co-operate with each
802		other to promptly resolve any dispute.
803
804		3. The arbitrator will fix the procedures and time frames for the
805		arbitration if the parties cannot agree.
806
807		4. The parties must continue to comply with their obligations under this
808		Agreement during the dispute resolution process.
809
810		5. This clause will not apply to:
811
812		1. a dispute arising in connection with any attempted re-negotiation
813		of this Agreement; or
814
815		1. any application by either party for urgent interlocutory relief.
816
817		6. If the parties cannot resolve the dispute by the procedure set out
818		above, the parties shall irrevocably submit to the exclusive
819		jurisdiction of the courts of New Zealand for the purposes of hearing
820		and determining any dispute arising out of this Agreement.
821
822		7. Each party recognises that the other party's business relies upon the
823		protection of its Intellectual Property Rights and that in the event
824		of a breach of Intellectual Property Rights, the other party will be
825		caused irreparable damage and such other party may therefore be
826		entitled to injunctive or other equitable relief in order to prevent
827		a breach or threatened breach of its Intellectual Property Rights.
828
829		8. Notwithstanding clause 31.1 to 31.7 and clause 31.9, the parties
830		agree that:
831
832		1. the Licensor shall have the right to sue to recover any amounts
833		owing to it in any jurisdiction in which the Licensee is operating
834		or has assets; and
835
836		1. in the event of any breach or potential breach of its Intellectual
837		Property Rights the Licensor shall have the right to sue for breach
838		of its Intellectual Property Rights (whether in connection with
839		this Agreement or otherwise) in any country where it believes that
840		infringement or a breach or potential infringement or breach of
841		this Agreement relating to its Intellectual Property Rights is or
842		is likely to take place.
	94	2. Grant of Licence
	95
	96	2.1 Upon payment of any applicable Licence Fee or in the event no
	97	Licence Fee is payable pursuant to clause 5.1, on any use being
	98	made of the Software, ("Commencement Date") the Licensor grants
	99	to the Licensee subject to the terms and conditions contained in
	100	this Agreement, a non-exclusive licence for the use of the
	101	Software in relation to the Project ("Licence"). Subject to the
	102	payment of any applicable Licence Fee as provided for in clause
	103	5, the Licence allows the Licensee to use the Software for the
	104	Licensee's own internal purposes in relation to the Project
	105	including as applicable in the course of the Licensee's ordinary
	106	business activities as they relate to the Project and also to
	107	incorporate the Software into products related to the Project
	108	offered for sale or for free use to the public ("Products") by
	109	the Licensee, provided that the Software is not the main
	110	component of such Products and such Products do not provide for
	111	the Software to be directly accessed and utilised in its own
	112	right.
	113
	114	2.2 The Licence shall not entitle the Licensee to have access to the
	115	Source Code in respect of the Software or to create or to attempt
	116	to create the same.
	117
	118	3. Licence Term
	119
	120	3.1 The Licence shall commence on the Commencement Date and shall
	121	continue until terminated in accordance with the provisions of
	122	this Agreement ("Term").
	123
	124	3.2 Under no circumstance will the Licensee be entitled to grant a
	125	sub-licence in respect of the Licence or any part of the Licence
	126	or otherwise deal with its rights and obligations in respect of
	127	the Licence.
	128
	129	4. Support and Maintenance Services Term
	130
	131	4.1 The Support and Maintenance Services shall commence on the
	132	Commencement Date and shall continue until the end of the Term.
	133
	134	5. Payment
	135
	136	5.1 In the event that the Licensee uses the Software only for their
	137	own personal use or where the Products are distributed for free
	138	in a Very Low Volume, the Licensee will not be required to pay a
	139	Licence Fee to the Licensor but in return for the benefit the
	140	Licensee receives from using the Software the Licensee
	141	acknowledges that they will at all times still be bound by the
	142	terms of this Agreement.
	143
	144	5.2 In the event that the Licensee incorporates the Software into
	145	Products, but such Products are sold in Very Low Volume, the
	146	Licensee will only be required to pay a Licence Fee of two
	147	hundred and fifty United States dollars ($250.00 USD).
	148
	149	5.3 To qualify for the Licence Fee exception pursuant to clause 5.1
	150	or the Licence Fee outlined in clause 5.2, the Licensee must also
	151	ensure that:
	152
	153	5.3.1 they are an individual or partnership and not a registered
	154	company;
	155
	156	5.3.2 the Project to which the Licence is to apply produces
	157	Products that are of a shareware or hobby type nature and
	158	which if sold are sold for ten New Zealand dollars or less
	159	($NZ10.00); and
	160
	161	5.3.3 they obtain the approval of the Licensor that the Project
	162	to which the Licence is to apply comes within the terms of
	163	clauses 5.1 or 5.2 as applicable and clauses 5.3.1 and
	164	5.3.2.
	165
	166	5.4 In the event that the Licensee incorporates the Software into
	167	Products which are sold or distributed for free in any volumes
	168	greater than Very Low Volumes the Licensee will be required to
	169	pay a Licence Fee of three thousand United States dollars ($3000.00 USD).
	170
	171	5.5 It is the Licensee's responsibility to ensure they have paid any
	172	applicable Licence Fee provided for in clauses 5.2 and 5.4 prior
	173	to making any use of the Software. Once paid the Licence Fee is
	174	non-refundable and the Licensor may terminate or suspend any
	175	Licence granted pursuant to this Agreement immediately on notice
	176	to the Licensee in the event any applicable Licence Fees due as
	177	defined in clauses 5.2 and 5.4 are unpaid and the Licensee will
	178	also indemnify the Licensor on demand for any direct and indirect
	179	costs of any nature whatsoever reasonably incurred by the
	180	Licensor in the course of securing the payment of any such unpaid
	181	Licence Fees.
	182
	183	5.6 The Licensee shall pay the Licence Fee to the Licensor by way of
	184	credit card payment in the manner provided for via the Website.
	185
	186	5.7 The Licence Fee is exclusive of any applicable Taxes including
	187	without limitation Goods and Services Tax ("GST") pursuant to the
	188	Goods and Services Tax Act 1985.
	189
	190	5.8 Notwithstanding clause 5.7 in the event that the Licensee is or
	191	becomes liable to pay or otherwise account for any Taxes, the
	192	payment of any amounts due under this Agreement will be adjusted
	193	to ensure that after the payment or accounting for of such Taxes
	194	the Licensor will receive the original amount that was due to it
	195	under this Agreement.
	196
	197	6. Delivery
	198
	199	6.1 The Licensee shall download the Software from the Website.
	200
	201	7. Support and Maintenance Services
	202
	203	7.1 During the Term the Licensor shall upon receipt of a Support Request
	204	provide the Licensee with the following Support and Maintenance
	205	Services by email in the following manner:
	206
	207	7.1.1 Where an Error occurs the Licensee shall supply in writing to the
	208	Licensor a detailed description of the Error requiring Error
	209	Correction and the circumstances in which it arose, and shall
	210	submit sufficient material and information to enable the Licensor
	211	to duplicate the Error, following which the Licensor will provide
	212	Error Correction in respect of the Error.
	213
	214	7.1.2 Exclusions:
	215
	216	(a) The Licensor shall be under no obligation to provide Support and
	217	Maintenance Services in respect of:
	218
	219	i) any defects or errors resulting from any modifications or
	220	customisation of the Software made by any other person other than
	221	the Licensor;
	222
	223	ii) incorrect or unauthorised use of the Software or operator error
	224	where these are defined as use or operation not in accordance
	225	with the Documentation;
	226
	227	iii) any fault in the Equipment or in any programs used in
	228	conjunction with the Software;
	229
	230	iv) any defects or errors caused by the use of the Software on or
	231	with any Equipment which is not approved in writing by the
	232	Licensor or in conjunction with any other software which is not
	233	approved in writing by the Licensor;
	234
	235	v) any software or programs other than the Software;
	236
	237	vi) any other of the Licensee's computer hardware, other equipment,
	238	or any data feeds or external data; and
	239
	240	vii) the Licensee's failure to install and use upon the Equipment in
	241	substitution for the previous release any new release of the
	242	Software which includes updates or bug fixes in respect of the
	243	Licensee's version of the Software within 90 days of such new
	244	release of the Software being available for download from the
	245	Website.
	246
	247	7.2 The Licensor will respond to any Support Request by email within 48
	248	hours of its receipt and will attempt to provide the required Support
	249	and Maintenance Services within the same time period.
	250
	251	7.3 In addition to making use of the Support and Maintenance Services
	252	provided for in clauses 7.1 and 7.2 the Licensee is also entitled to
	253	make use of the Forums on such the terms and conditions as are
	254	specified on the Website from time to time in respect of use of the
	255	Forums.
	256
	257	7.4 Notwithstanding clauses 7.1, 7.2 and 7.3, the Licensee acknowledges
	258	that in the event they are not required to pay a Licence Fee as
	259	provided for by clause 5.1, the Licensee will not be entitled to make
	260	use of the Support and Maintenance Services as described in clauses
	261	7.1 and 7.2 but will be entitled to make use of the Forums as
	262	provided for by clause 7.3.
	263
	264	8. New Releases
	265
	266	8.1 During the Term the Licensor shall notify the Licensee by email,
	267	where the Licensee has registered on the Website to receive such
	268	notification, of any new release of the Software that is available
	269	for download from the Website.
	270
	271	8.2 Notwithstanding clause 8.1, although the Licensee will be entitled to
	272	download any new releases of the Software as part of the Support and
	273	Maintenance Services, for the avoidance of doubt the Licensee will
	274	not be entitled to download and use any later version of the Software
	275	without paying a further applicable Licence Fee as defined in clauses
	276	5.2 and 5.4 in respect of that new version of the Software.
	277
	278	8.3 In the event of any confusion as to whether a new release of the
	279	Software is actually a new version of the Software the Licensor's
	280	decision shall be final.
	281
	282	8.4 The Licensor may from time to time, acting entirely at its own
	283	discretion, make such modifications to the current release of the
	284	Software as shall ensure that the current release conforms to any
	285	legal requirements or change of legislation. In the event that the
	286	Licensor acting reasonably does not believe that it is technically
	287	possible or commercially justifiable for it to make such
	288	modifications then the Licensor shall be entitled to terminate this
	289	Agreement on 30 days written notice to the Licensee. Where the
	290	Licensor does make modifications to the current release of the
	291	Software ("Modified Software") in accordance with the terms of this
	292	Agreement, the Licensor shall make such Modified Software available
	293	for download from the Website. The Licensee shall be required to as
	294	soon as reasonably possible adopt such Modified Software. Failure by
	295	the Licensee to adopt such Modified Software within 90 days of any
	296	such new release of the Software being made available for download
	297	from the Website, shall entitle the Licensor to terminate this
	298	Agreement immediately on written notice to the Licensee.
	299
	300	8.5 Any new release of the Software or Modified Software adopted by the
	301	Licensee shall become the current release and the provisions of this
	302	Agreement shall apply accordingly.
	303
	304	9. Licensee's Obligations
	305
	306	9.1 The Licensee shall operate the Software in accordance with the
	307	Specification and Documentation.
	308
	309	10. Restrictions on Alterations
	310
	311	10.1 If the Software within the Licensee's control pursuant to the
	312	Licence is modified or altered by the Licensee, the Licensee will
	313	fully indemnify the Licensor against all liability which may be
	314	incurred by the Licensor if such modifications or alterations
	315	infringe any Intellectual Property Rights of a third person or
	316	otherwise cause the Licensor to suffer loss, damages or expense.
	317
	318	10.2 The Software within the Licensee's control pursuant to the
	319	Licence remains the property of the Licensor in all respects.
	320
	321	11. Security and Control
	322
	323	11.1 The Licensee shall during the continuance of the Licence effect
	324	and maintain security measures in accordance with accepted
	325	industry standards to safeguard the Software from access or use
	326	by any unauthorised person.
	327
	328	12. Proprietary Rights
	329
	330	12.1 The Product Materials and the Intellectual Property Rights of
	331	whatever nature in the Product Materials (excluding any third
	332	party rights in respect of Third Party Software) are and shall
	333	remain the property of the Licensor.
	334
	335	12.2 The Licensee shall notify the Licensor immediately if the
	336	Licensee becomes aware of any unauthorised use of the whole or
	337	any part of the Product Materials by any person.
	338
	339	12.3 The Third Party Software at all times remains the property of the
	340	applicable third party and the Licensee's use of such Third Party
	341	Software is at all times governed by the provisions of any
	342	applicable licence relating to any such Third Party Software.
	343
	344	13. Intellectual Property Rights
	345
	346	13.1 The Licensee acknowledges that the Licence granted pursuant to
	347	clause 2 does not grant any transfer of title or ownership to the
	348	Licensee of any Licensor's Intellectual Property Rights including
	349	without limitation in the Product Materials. The Licensee's right
	350	to use the Licensor's Intellectual Property Rights as provided
	351	for in this Agreement will cease upon the termination of this
	352	Agreement or as otherwise provided for in this clause 13.
	353
	354	13.2 The Licensee acknowledges that the grant of the Licence or any
	355	other terms of this Agreement do not in any way confer any right
	356	or licence upon the Licensee to use, exploit or otherwise utilise
	357	any rights relating to the Licensor's Intellectual Property
	358	Rights other than in accordance with the terms of this Agreement.
	359
	360	13.3 The Licensee agrees not to represent in any way that it has any
	361	title, right or interest in the ownership of the Licensor's
	362	Intellectual Property Rights nor do anything which might be
	363	contrary to the rights or interest of the Licensor in its
	364	Intellectual Property Rights nor seek to apply to register in its
	365	own name or that of any third party any part of the Licensor's
	366	Intellectual Property Rights and will assist the Licensor in any
	367	application to register any such Intellectual Property Rights
	368	belonging to the Licensor at the cost of the Licensor.
	369
	370	13.4 The Licensee agrees with the Licensor that it will notify the
	371	Licensor in writing as soon as practicable of any infringement,
	372	suspected infringement or alleged infringement relating to the
	373	Licensor's Intellectual Property Rights which comes to its
	374	knowledge provided that the Licensee will be deemed to have
	375	knowledge of any infringement, suspected infringement or alleged
	376	infringement if such infringement would have come to the
	377	Licensee's knowledge but for any negligence or wilful misconduct
	378	on the part of the Licensee.
	379
	380	13.5 In the event that proceedings are brought or threatened by a
	381	third party against the Licensee or the Licensor, alleging that
	382	the Licensee's use of the Product Materials constitutes an
	383	infringement of a third party's Intellectual Property Rights, the
	384	Licensor may at its option and at its own expense conduct the
	385	defence of such proceedings. As requested by the Licensor the
	386	Licensee shall provide all necessary co-operation, information
	387	and assistance to the Licensor in the conduct of the defence of
	388	such proceedings.
	389
	390	13.6 In the circumstances provided for in clause 13.5, but also where
	391	the Licensor acting entirely at its own discretion believes that
	392	there is a reasonable likelihood that infringement may currently
	393	exist or is likely to occur, the Licensee agrees with the
	394	Licensor that it will permit the Licensor, acting entirely in the
	395	Licensor's discretion to;
	396
	397	13.6.1 modify, alter or substitute the infringing or potentially
	398	infringing part of the Product Materials, at the Licensor's expense
	399	in order to avoid the infringement or potential infringement; or
	400
	401	13.6.2 procure for the Licensee the authority to continue with the use and
	402	possession of the infringing or potentially infringing part of the
	403	Product Materials.
	404
	405	13.7 If the remedies set out in clause 13.6 above are not in the
	406	Licensor's opinion reasonably available, then the Licensor shall be
	407	entitled to terminate the Licence and this Agreement immediately on
	408	written notice to the Licensee at which point the Licensee shall
	409	destroy all copies of the Product Materials within its possession and
	410	provide a written certificate from one of the Licensee's directors to
	411	the Licensor that such copies have been destroyed provided that the
	412	Licensor shall be entitled to enter upon the Licensee's premises to
	413	repossess any copies of the Product Materials in the possession,
	414	custody or control of the Licensee not returned or destroyed as
	415	provided for above.
	416
	417	13.8 The Licensee acknowledges that the Licensor will have no obligation
	418	to indemnify the Licensee against any damages, costs and losses
	419	incurred by the Licensee whether direct or consequential (including
	420	but without limitation any economic loss or other loss of turnover,
	421	profits, business or goodwill) in connection with any proceedings
	422	bought by a third party against the Licensee alleging that the
	423	Licensee's use of the Product Materials constitutes an infringement
	424	of that third party's Intellectual Property Rights.
	425
	426	13.9 The Licensee shall indemnify the Licensor against any loss, costs,
	427	expenses, demands or liability, whether direct or indirect, arising
	428	out of a claim by a third party pursuant to clause 13.5 where:
	429
	430	13.9.1 the claim arises from:
	431
	432	(a) use of the Product Materials in combination with any equipment or
	433	programs where such use is not authorised by the terms of this
	434	Agreement or otherwise approved by the Licensor;
	435
	436	(b) use of the Product Materials in a manner or for a purpose not
	437	specifically provided for by this Agreement or authorised by the
	438	Licensor;
	439
	440	(c) modification or alteration of the Product Materials by the
	441	Licensee or any third party on behalf of the Licensee; and
	442
	443	(d) any transaction entered into by the Licensee relating to the
	444	Product Materials without the Licensor's prior consent in writing
	445	which is not otherwise authorised by the terms of this Agreement;
	446	or
	447
	448	13.9.2 the ability of the Licensor to defend the claim has been prejudiced
	449	by the failure of the Licensee to comply with any requirements of
	450	clauses 13.4, 13.5 or 13.6.
	451
	452	13.10 The Licensee acknowledges that the Licensor is in no way liable to
	453	the Licensee in respect of any liability arising from the Licensee's
	454	use of any Third Party Software and the Licensee agrees to indemnify
	455
	456	the Licensor on demand in the event of any liability suffered by the
	457
	458	Licensor arising from the Licensee's use of the Third Party Software.
	459
	460	14. Warranties
	461
	462	14.1 To the fullest extent permitted at law, the Licensor:
	463
	464	14.1.1 disclaims all warranties with respect to the Software, either
	465	express or implied, including but not limited to any implied
	466	warranties relating to quality, fitness for any particular purpose
	467	or ability to achieve a particular result;
	468
	469	14.1.2 makes no warranty that the Software is error free or that use of
	470	the Software will be uninterrupted and the Licensee acknowledges
	471	and agrees that the existence of such errors shall not constitute a
	472	breach of this Agreement; and
	473
	474	14.1.3 does not give any warranty in respect of the Third Party Software.
	475
	476	14.2 The Licensee agrees that its sole remedy in respect of any
	477	non-conformance with any warranty that can not be excluded pursuant
	478	to clause 14.1 is that the Licensor will remedy such non-conformance
	479	(either by itself or through a third party) and if, in the Licensor's
	480	reasonable opinion, it is unable to remedy such non-conformance, the
	481	Licensor shall be entitled to terminate the Licence and this
	482	Agreement immediately on written notice to the Licensee at which
	483	point the Licensee shall destroy all copies of the Product Materials
	484	within its possession and provide a written certificate from one of
	485	the Licensee's directors to the Licensor that such copies have been
	486	destroyed provided that the Licensor shall be entitled to enter upon
	487	the Licensee's premises to repossess any copies of the Product
	488	Materials in the possession, custody or control of the Licensee not
	489	returned or destroyed as provided for above.
	490
	491	14.3 The Licensee will not disable or alter the display of the Software
	492
	493	logo, as such is incorporated into any Products or generally
	494	displayed as a result of the use of the Software.
	495
	496	15. Liability
	497
	498	15.1 Except as provided for in clauses 13.9, 15.2, 15.3, 15.5 and 15.6
	499	and to the greatest extent permitted at law, under no
	500
	501	circumstances will either party ("the first party"), its
	502	employees or its agents be liable to the other party ("the second
	503	party") in contract, tort, equity, statute, regulation or
	504	otherwise for any loss, damage, costs, legal costs, professional
	505	and other expenses of any nature whatsoever incurred or suffered
	506	by the second party, or by any other third party, whether direct
	507	or consequential (including but without limitation any economic
	508	loss or other loss of turnover, profits, business or goodwill)
	509	arising out of any dispute or contractual, tortuous or other
	510	claims or proceedings bought by the second party or which are
	511	alternatively bought against the second party as a result of the
	512	second party's breach of this Agreement.
	513
	514	15.2 Clause 15.1 shall not exclude any liability of the first party to
	515
	516	the second party which arises from:
	517
	518	15.2.1 wilful misconduct or gross negligence on the part of the first
	519	party;
	520
	521	15.3.2 where the Licensee is the first party, any act or omission by any
	522	persons to whom the Licensee is permitted to disclose Information
	523	(as defined in clause 16.1) as set out in this Agreement, which, if
	524	done or omitted to be done by the Licensee, would be a breach of
	525	the Licensee's obligations under this Agreement,
	526
	527	and in respect of which the first party will indemnify the second party.
	528
	529	15.3 In the event that any limitation or provision contained in this
	530	Agreement is held to be invalid or unenforceable for any reason and
	531	the first party becomes liable for loss or damage that would
	532	otherwise have been excluded, to the greatest extent permitted at law, and also in respect of any liability pursuant to clause 15.2,
	533	the first party's maximum liability to the second party under the
	534	Agreement shall be limited to an amount equivalent to the Licence Fee
	535	paid by the Licensee pursuant to this Agreement.
	536
	537	15.4 Notwithstanding clause 15.1, to the greatest extent permitted at law,
	538	the parties agree that the first party shall not be liable to the
	539	second party in contract, tort, equity, statute, regulation or
	540	otherwise for any loss, damage, cost, legal costs, professional and
	541	other expenses of a consequential nature (including but without
	542	limitation any economic loss or other loss of turnover, profits,
	543	business or goodwill).
	544
	545	15.5 Notwithstanding clauses 15.1, 15.2, 15.3 and 15.4 the liability of
	546	the Licensee to the licensor shall not be limited in respect of any
	547	liability arising from the Licensee's breach of the Licensor's
	548	Intellectual Property Rights or any third party's Intellectual
	549	Property Rights.
	550
	551	15.6 The parties acknowledge and agree that the limitations contained in
	552	this clause 15 are reasonable in the light of all the circumstances.
	553
	554	15.7 Where the Licensee is obtaining the Product Materials and Support and
	555	Maintenance Services for business purposes the Licensee agrees the
	556	Consumer Guarantees Act 1993 does not apply.
	557
	558	15.8 The parties agree that to the greatest extent permitted at law the
	559	Sale of Goods Act 1908, the United Nations Convention on Contracts
	560	for the International Sale of Goods (1980) and the Sale of Goods
	561	(United Nations Convention) Act 1994 will not apply to this
	562	Agreement.
	563
	564	16. Confidential Information
	565
	566	16.1 The Licensee undertakes, except as provided below, to treat as
	567	confidential and keep secret all information marked
	568	'confidential' or which may reasonably be supposed to be
	569	confidential, including, without limitation, information
	570	contained or embodied in the Product Materials, the Specification
	571	and other information supplied by the Licensor to the Licensee
	572	(in this Agreement collectively referred to as 'the Information')
	573	with the same degree of care as the Licensee employs with regard
	574	to the Licensee's own confidential information of a like nature
	575	and in any event in accordance with best current commercial
	576	security practices, provided that, this clause shall not extend
	577	to any information which was rightfully in the possession of the
	578	Licensee prior to the commencement of this Agreement or which is
	579	already public knowledge or becomes so at a future date
	580	(otherwise than as a result of a breach of this clause).
	581
	582	16.2 The Licensee shall not without the prior written consent of the
	583	Licensor divulge any part of the Information to any person
	584	except:
	585
	586	16.2.1 to the Licensee's employees and then only to those employees to
	587	whom it is necessary to make such disclosure in order for the
	588	Licensee to meet its obligations under this Agreement;
	589
	590	16.2.2 to such other parties as may be reasonably necessary to enable the
	591	Licensee to meet its obligations under this Agreement;
	592
	593	16.2.3 to the Licensee's solicitors, insurers, accountants and auditors; and
	594
	595	16.2.4 where such disclosure is required, pursuant to any law, regulation,
	596	court order or valid government department or agency legal
	597	requirement, provided that the Licensee must:
	598
	599	a) promptly and if practicable before making the disclosure, notify
	600	the Licensor of that fact and identify the Information required to
	601	be so disclosed so that if practicable in the circumstances a
	602	protective order or other appropriate remedy may be sought; and
	603
	604	b) disclose only the minimum Information required to comply with the
	605	applicable law or order.
	606
	607	16.3 The Licensee undertakes to ensure that persons and bodies referred to
	608	in clause 16.2 are made aware before the disclosure of any part of
	609	the Information that the same is confidential and that they owe a
	610	duty of confidence to the Licensor.
	611
	612	16.4 The Licensee shall promptly notify the Licensor if it becomes aware
	613	of any breach of confidence by any person to whom the Licensee has
	614	divulged all or any part of the Information and the Licensee shall
	615	give the Licensor all reasonable assistance in connection with any
	616	proceedings which the Licensor may institute against such person for
	617	breach of confidence.
	618
	619	16.5 The foregoing obligations as to confidentiality shall remain in full
	620	force and effect notwithstanding any termination of the Licence or
	621	this Agreement.
	622
	623	16.6 The Licensor shall be entitled to identify the Licensee as a licensee
	624	of the Products in the Licensor's publicity materials.
	625
	626	16.7 If the Licensor authorises the Licensee to disclose any Information
	627	to any person the Licensee agrees at the request of the Licensor
	628	prior to such disclosure to have such person execute an
	629	acknowledgement to the effect that the Information is disclosed to
	630	that person in confidence.
	631
	632	17. Termination
	633
	634	17.1 Either party may terminate this Agreement immediately by notice in
	635	writing to the other if the other:
	636
	637	17.1.1 commits a material breach of this Agreement which is not capable of
	638	remedy; or
	639
	640	17.1.2 commits a breach of this Agreement which is capable of a remedy,
	641	and such breach is not remedied within 14 days of receipt by the
	642	other, of a notice from the innocent party identifying the breach
	643	and requiring its remedy; or
	644
	645	17.1.3 is unable to pay its debts or is deemed to be, or enters into
	646	liquidation (other than with the prior written agreement of the
	647	other party for the purpose of effecting a reconstruction or
	648	amalgamation in such manner that the company resulting from such
	649	reconstruction or amalgamation if a different legal entity agrees
	650	to be bound by and assume the obligations of the relevant party
	651	under this Agreement) or compounds with or compromises with or
	652	convenes a meeting of its creditors or has a receiver appointed
	653	over all or any part of its assets or takes or suffers any similar
	654	action in consequence of a debt, or ceases for any reason to carry
	655	on business.
	656
	657	17.2 For the avoidance of doubt the Licence will be deemed to terminate
	658	upon the termination of the Agreement and upon the termination of the
	659	Licence, the Licensee shall destroy all copies of the Product
	660	Materials within its possession and provide a written certificate
	661	from one of the Licensee's directors to the Licensor that such copies
	662	have been destroyed provided that the Licensor shall be entitled to
	663	enter upon the Licensee's premises to repossess any copies of the
	664	Product Materials in the possession, custody or control of the
	665	Licensee not returned or destroyed as provided for above.
	666
	667	17.3 Any termination of the Licence or this Agreement (howsoever
	668	occasioned) shall not affect any accrued rights or liabilities of
	669	either party nor shall it affect the coming into force or the
	670	continuance in force of any provision in this Agreement which is
	671	expressly stated as continuing in force on or after such termination.
	672
	673	18. Agency, Partnership
	674
	675	18.1 This Agreement shall not constitute or imply any partnership,
	676	joint venture, agency, fiduciary relationship or other
	677	relationship between the parties other than the contractual
	678	relationship expressly provided for in this Agreement.
	679
	680	19. Amendments
	681
	682	19.1 Except where expressly provided for in this Agreement, this
	683	Agreement may not be released, discharged, supplemented,
	684	interpreted, amended, varied or modified in any manner except by
	685	an instrument in writing signed by a duly authorised officer or
	686	representative of each of the parties.
	687
	688	20. Announcements
	689
	690	20.1 Except where expressly provided for in this Agreement, no party
	691	shall issue or make any public announcement or disclose any
	692	information regarding this Agreement unless prior written consent
	693	has been obtained from the other party.
	694
	695	21. Assignment
	696
	697	21.1 The Licensee may not assign or otherwise deal with any of its
	698	rights or obligations under this Agreement.
	699
	700	22. Entire Agreement
	701
	702	22.1 This Agreement supersedes all prior agreements, arrangements and
	703	undertakings between the parties and constitutes the entire
	704	agreement between the parties relating to the subject matter of
	705	this Agreement. The parties confirm that they have not entered
	706	into this Agreement on the basis of any representation that is
	707	not expressly incorporated into this Agreement.
	708
	709	23. Force Majeure
	710
	711	23.1 Neither party is in breach of this Agreement if its breach is
	712	caused by an act of God, fire, act of government or state, war,
	713	terrorism, sabotage, civil commotion, insurrection, embargo,
	714	prevention from or hindrance in obtaining any raw materials,
	715	energy or other supplies, labour disputes of whatever nature
	716	including strikes and lockouts, piracy, destruction of essential
	717	equipment by fire, explosion, storm, flood or earthquake, medical
	718	epidemic and delay caused by failure of power supplies or
	719	transport facilities or any other reason beyond the reasonable
	720	control of a party.
	721
	722	24. Notices
	723
	724	24.1 All notices in relation to this Agreement must be served by email
	725	to the email address used by either party from time to time to
	726	communicate with the other party.
	727
	728	25. Schedules
	729
	730	25.1 The provisions of Schedule 1 shall form part of this Agreement as
	731	if set out here.
	732
	733	26. Severance
	734
	735	26.1 If any provision of this Agreement is prohibited by law or judged
	736	by a court to be unlawful, void or unenforceable, the provision
	737	shall, to the extent required, be severed from this Agreement and
	738	rendered ineffective as far as possible without modifying the
	739	remaining provisions of this Agreement, and shall not in any way
	740	affect any other circumstances of or the validity or enforcement
	741	of this Agreement.
	742
	743	27. Waiver
	744
	745	27.1 No delay, neglect or forbearance on the part of either party in
	746	enforcing against the other party any term or condition of this
	747	Agreement shall either be or be deemed to be a waiver or in any
	748	way prejudice any right of that party under this Agreement. No
	749	right, power or remedy in this Agreement conferred upon or
	750	reserved for either party is exclusive of any other right, power
	751	or remedy available to that party.
	752
	753	28. Subcontracting
	754
	755	28.1 The Licensee agrees that the Licensor may perform any or all of
	756	its obligations under this Agreement through agents or
	757	sub-contractors.
	758
	759	29. Survival of Agreement
	760
	761	29.1 The provisions of clauses 12 (Proprietary Rights), 13
	762	(Intellectual Property Rights), 14 (Warranties), 15 (Liability),
	763	16 (Confidential Information) clauses 17.2 and 17.3 (Termination)
	764	and this clause 29 survive the termination or expiry of this
	765	Agreement for whatever reason.
	766
	767	30. Language
	768
	769	30.1 This Agreement is made only in the English language. If there is
	770	any conflict in the meaning between the English language version
	771	of this Agreement and any version or translation of it in any
	772	other language, the English language version shall prevail.
	773
	774	31. Proper Law and Jurisdiction
	775
	776	31.1 This Agreement and all matters arising from it and any dispute
	777	resolutions referred to below shall be governed by and construed in
	778	accordance with New Zealand law notwithstanding the conflict of law
	779	provisions and other mandatory legal provisions.
	780
	781	31.2 Subject to clause 31.8 and 31.11 the procedures set out in clauses
	782	31.3 to 31.9 shall apply to all disputes arising under this
	783	Agreement.
	784
	785	31.3 Where there is a dispute, the aggrieved party shall notify the other
	786	party in writing of the nature of the dispute, with as much detail as
	787	possible about the deficient performance of the other party. A
	788	representative from senior management of each of the parties
	789	("representatives") shall meet in person or communicate by telephone
	790	within 5 business days of the date of the written notification in
	791	order to reach an agreement about the nature of the deficiency and
	792	the corrective action to be taken by the respective parties.
	793
	794	31.4 If the dispute pursuant to clause 31.3 cannot be resolved within 10
	795	business days of the date of the written notification provided for in
	796	clause 31.3, or if the agreed upon completion dates in any written
	797	plan of corrective action are exceeded, the parties will refer the
	798	dispute to a single arbitrator to be chosen by the parties or, if
	799	they cannot agree, chosen by the President of the New Zealand Law
	800	Society, or the President's nominee and such arbitration will be
	801	conducted in New Zealand in accordance with the Rules in Schedules 1
	802	and 2 of the Arbitration Act 1996.
	803
	804	31.5 The parties must always act in good faith and co-operate with each
	805	other to promptly resolve any dispute.
	806
	807	31.6 The arbitrator will fix the procedures and time frames for the
	808	arbitration if the parties cannot agree.
	809
	810	31.7 The parties must continue to comply with their obligations under this
	811	Agreement during the dispute resolution process.
	812
	813	31.8 This clause will not apply to:
	814
	815	31.8.1 a dispute arising in connection with any attempted re-negotiation
	816	of this Agreement; or
	817
	818	31.8.2 any application by either party for urgent interlocutory relief.
	819
	820	31.9 If the parties cannot resolve the dispute by the procedure set out
	821	above, the parties shall irrevocably submit to the exclusive
	822	jurisdiction of the courts of New Zealand for the purposes of hearing
	823	and determining any dispute arising out of this Agreement.
	824
	825	31.10 Each party recognises that the other party's business relies upon the
	826	protection of its Intellectual Property Rights and that in the event
	827	of a breach of Intellectual Property Rights, the other party will be
	828	caused irreparable damage and such other party may therefore be
	829	entitled to injunctive or other equitable relief in order to prevent
	830	a breach or threatened breach of its Intellectual Property Rights.
	831
	832	31.11 Notwithstanding clause 31.1 to 31.7 and clause 31.9, the parties
	833	agree that:
	834
	835	31.11.1 the Licensor shall have the right to sue to recover any amounts
	836	owing to it in any jurisdiction in which the Licensee is operating
	837	or has assets; and
	838
	839	31.11.2 in the event of any breach or potential breach of its Intellectual
	840	Property Rights the Licensor shall have the right to sue for breach
	841	of its Intellectual Property Rights (whether in connection with
	842	this Agreement or otherwise) in any country where it believes that
	843	infringement or a breach or potential infringement or breach of
	844	this Agreement relating to its Intellectual Property Rights is or
	845	is likely to take place.
843	846
844	847	SCHEDULE 1