Radiaca is a pdf to html platform accessed on-line by you (subject to the agreement below).
THIS AGREEMENT GOVERNS YOUR USE OF THE PLATFORM. IN CONSIDERATION OF US MAKING THE PLATFORM AVAILABLE TO YOU. YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL ADDENDUM'S TO IT AND REVISIONS THEREOF. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOU HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO BE BOUND BY IT. YOU FURTHER AGREE THAT THIS AGREEMENT AND ALL ADDENDUM'S TO IT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN US AND SUPERSEDES ANY PROPOSAL OR PREVIOUS AGREEMENT, ORAL OR WRITTEN AND ANY OTHER COMMUNICATION BETWEEN US RELATING TO YOU ACCESSING OR USING THE PLATFORM. FOR THE AVOIDANCE OF ANY DOUBT HOWEVER, THIS CLAUSE DOES NOT SEEK TO EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATION.
This subscription agreement (the “Agreement”) is by and between Redshift Limited (“Licensor”, “Redshift”, “us” or “we”) and the subscriber (“Licensee” or “you”) detailed in the quotation signed by the parties (the “Quotation”). It sets forth the terms and conditions of Licensee’s license to use the Platform. As a condition of the License, Licensee must accept this Agreement in its entirety. It is a fairly lengthy agreement and it contains important provisions that govern your rights and obligations. At our sole discretion we may modify the Agreement at any time and such changes will be effective immediately post the initial subscription term, you hereby waive any right you may have to receive notice of such changes and you will be bound by such modifications and the Agreement will remain in full force and effect until terminated in accordance with termination provisions set forth below. If the Agreement is modified we will upload an amended Agreement to the web site located at www.pdf2mobile.nz (or any alternative or replacement website, together the “Site”). At any particular time, the version of the Agreement that will govern your relationship with us and our rights and obligations with respect to the Platform will be that version of the Agreement appearing on the Site at the time you last accessed the Platform.
In this Agreement the following expressions shall have the following meanings:
Any document that on the face of it is expressed by the Licensor to be an addendum to this Agreement and which the Licensee (by virtue of the elements of the Platform that the Licensor has, at the request of the Licensee made available to it) is subject to
Any individual who is employed or engaged under contract as part of the Licensee’s staff and in respect of whom the Licensor has set up a User Account;
The sum set out in the Quotation under the heading Conversion Fee;
Any person to whom the Licensee supplies products and/or services;
The Customer’s name, address, contact details and order details;
“End User Licence Agreement”
The Licensor’s (or its Affiliate’s) written terms and conditions which govern the use of Radiaca’s platform by Customers;
Any company at any time during the term of this Agreement within the Licensor’s group of companies composed of the principal company, its holding company and subsidiary companies (where “holding company” and “subsidiary company” shall have the meaning as set out in section 5 of the Companies Act 1993);
means a computer accessed remotely via the internet using a suitable web browser which is operated and maintained by a hosting provider that has contracted with Licensor to provide the web hosting services required to enable the Web viewable files to be accessed via the Internet pursuant to the Services;
“Licensee Confidential Information”
Any information about the Licensee and its business divulged by the Licensee and/or received or obtained by the Licensor prior to or during the period of this Agreement which is either marked or expressed by us as confidential or which may be reasonably considered to be confidential;
All data, graphics and information including Customer Information that the Licensee submits in connection with its use of the Platform or the Subscription. Including information and data which can be inserted in, edited or linked to fields or options in the Software, including text, data, images, documents and links (such as HTML links) in order to customise the Services so that they are linked with the Licensee’s branding or trade insignia;
“Licensor Confidential Information”
Any information about the Group, and/or any aspect of the Platform and/or any aspect of the Group’s business or business methods divulged by the Licensor and/or received or obtained by the Licensee prior to or during the period of this Agreement which is either marked or expressed by us as confidential or which may be reasonably considered to be confidential;
“Monthly License Fee”
The sum set out in the Quotation under the heading Monthly License Fee;
Such of the Licensor’s (or its Affiliate’s) proprietary software (including but not limited to Radiaca) hosted by or on behalf of the Licensor which are accessible using internet web browser-based technology;
means the services described in Schedule 1
Any fees paid or payable by a Customer to the Licensee in respect of the Services.
the computer program or programs which it is necessary for a person accessing the Services to use on the Host Server in order to receive the Services.
Any business that operates between the hours of 9am to 5pm, Monday to Friday;
The Subscription Plan relevant to this Agreement, and which the Licensee has elected to take, as set out in the Quotation;
The name “Redshift” and any other trade names and logos symbols, emblems, insignia or indicia, belonging to the Licensor or any member of the Group whether or not registered or capable of registration;
“Unique Job Number”
The unique identification number generated by the Platform in respect of each Job;
The password and username supplied to Authorised Users to access the Platform;
The written specification of the methods, processes, techniques, systems and schemes devised and compiled by the Licensor to be observed and implemented by the Licensee in using the Platform at any time hereafter made available to the Licensee;
any day, except a Saturday or a Sunday, on which a standard business is open for ordinary business, excluding public holidays.
1.1 The headings used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
1.2 Any reference in this Agreement to any statute, decree, law, statutory instrument or other regulation having the force of law shall be deemed to include any lawful modifications thereto or re-enactments thereof after the date of signature of this Agreement.
1.3 Any reference to the plural shall include the singular and any reference to the singular shall include the plural and any reference to one gender shall include all genders.
1.4 Any reference to a person shall include natural persons, partnerships and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind or however constituted.
1.5 Any reference to a clause or schedule shall (unless otherwise specifically provided) be a reference to a clause or schedule of this Agreement.
1.6 Any obligation of a party not to do an act or thing shall be deemed to include an obligation not to permit such act or thing to be done by another person under the control of the party that is subject to the obligation in question.
1.7 The words include, includes, including and included would be construed without limitation.
1.8 Unless expressly stated otherwise, all amounts payable under this Agreement shall be paid in New Zealand dollars.
2.1 The Licensor hereby grants to the Licensee during the continuance of this Agreement and upon the terms and conditions herein contained the non exclusive, non sub licensable, non transferable right and licence to use those functions and features of the Platform as the Licensor considers are universally available to all other licensees that have taken the same Subscription;
2.2 This Agreement shall commence on the date of the Agreement and shall continue (subject to earlier termination as provided in this Agreement) in force for the period set out in the Quotation under the heading Term and thereafter unless and until terminated by either party giving to the other party not less than three months prior notice expiring on or at any time after the Term.
3.1 The Licensee agrees to pay in respect of each calendar month (save for the first calendar month) during which for any part of that calendar month this Agreement is in force the Licensee agrees and undertakes to pay to the Licensor the Monthly License Subscription Fee which the Licensor shall invoice monthly in advance;
3.2 The Licensee agrees and undertakes to pay to the Licensor:
3.3 a Conversion Fee in respect of each pdf conversion which the Licensor shall invoice monthly in arrears;
3.4 Unless otherwise stated, all sums payable by the Licensee to the Licensor under or in connection with this Agreement shall be paid in New Zealand dollars as set out in the Quotation under the heading Payment Terms to the Licensor’s bank account by the method set out in the Quotation under the heading Payment Method or such other method as the Licensor may reasonably require. Further all such sums shall be deemed exclusive of GST or other applicable sales tax which shall be payable in addition;
3.5 The Licensor reserves the right to allocate funds received from the Licensee against invoices pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group, as the Licensor determines;
3.6 In addition to any other remedy the Licensor may have under this Agreement or at law, if at any time any sum which is due to be paid by the Licensee to the Licensor (pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group) has not been paid on the due date for payment, or where any credit limit granted by the Licensor to the Licensee (which for the avoidance of doubt shall be set by the Licensor at its absolute discretion and which it shall be entitled to vary at any time having regard to the Licensees credit worthiness or other information at the Licensor’s disposal) has been exceeded the Licensor or any member of the Group shall have the right to deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other Agreement between the Licensee and the Licensor or any member of the Group.
The Licensor agrees and undertakes as follows:
4.1 to use its commercially reasonable endeavours to meet the service levels set out in Schedule 1.
4.2 Provided the Licensee complies with its obligations under this Agreement, the Licensor:
4.2.1. will provide the Licensee, at no additional cost, with such email support, user guides and other assistance as is reasonably necessary to assist the Licensee in marketing the Services;
4.2.2. will promptly deal with any reasonable request for further information regarding the Services from the Licensee or Customers of the Service;
4.2.3. will notify the Licensee of upgrades to the Services which may be made available by Licensor from time to time and, where reasonably practicable, will give the Licensee at least 7 days advance notice of any major upgrades before they are released;
4.2.4. will consider upgrade or modification requests received from the Licensee or its Customers in its sole discretion, but is not obliged to make such upgrades or modifications..
4.3. Provided that the Licensee complies with the terms of this Agreement, the Licensor will make available the Services to the Licensee’s
Customers. The Licensor will not be required to make the Services available to any person that has not accepted and signed a End User Licence Agreement applicable to the Services at that time or who is in breach of a End User Licence Agreement for any reason.
The Licensee agrees:
5.1 That it will only market and license the Software in the manner and for the purposes expressly authorised by this Agreement.
5.2 That it is solely responsible for determining the suitability of the Services for its intended use by the Customers and, in particular, for any intended use of the Services as part of or in conjunction with any other software or other products manufactured, licensed or distributed by the Licensee.
5.3 That in any marketing of the Services (whether in conjunction with the other products manufactured, licensed or distributed by the Licensee or otherwise) it will ensure that:
5.3.2 Licensor’s trademarks, copyright and other intellectual property rights in or relating to the Software are clearly identified as such;
all promotional material used or proposed to be used by the Licensee in the marketing of the Services:
188.8.131.52 complies with applicable local laws in the Territory ; and
184.108.40.206 no representations or warranties in respect of the Services, their functionality, capabilities, compatibility or otherwise are made, unless those representations or warranties have already been expressly made by the Licensor in writing or are expressly authorised by the Licensor in writing.
5.4 That it will not alter, modify or in any other way tamper with or change the Services, or material supplied by the Licensor with the Services or any trade marks or computer code or promotional and marketing material relating to the Services or Software in any way, except as expressly allowed by this Agreement or with the prior consent in writing of the Licensor
5.5 The Licensee warrants to the Licensor that the use of or display or publication by the Licensor and Radiaca of the Licensee Content , the Services Material and the Customisation Material in accordance with this Agreement shall not breach or infringe:
5.5.1. the Trade Practices Act (Cth), Fair Trading Acts (State) or equivalent legislation;
5.5.2. any copyright, trade mark, obligation of confidentiality or other personal or proprietary right;
5.5.3. any law of defamation, obscenity or contempt of any court, tribunal or royal commission;
5.5.4. State or Commonwealth anti-discrimination legislation;
5.5.5. the Privacy Act 1988 (Cth);
5.5.6. any financial services law as defined in the Corporations Act 2001(Cth); or
5.5.7. any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory) or any applicable law in the Territory.
5.6 to comply with all reasonable technical advice and instructions given by the Licensor with regard to the use of the Platform and to use the Platform strictly in accordance with the User Guide and such advice, know how and guidance made available to it by the Licensor. The Licensee acknowledges and agrees that the Licensor shall have no liability to the Licensee in respect of any matter complained of by the Licensee where the matter in question would have been avoided if the Licensee had adhered to the User Guide or advice, know how and guidance made available to it by the Licensor;
5.7 to comply with all laws, statutes, byelaws, regulations and requirements of any government or other competent authority relating to the Licensee and/or the use of the Platform (including the Privacy Act 1993 and any other data protection of similar legislation that concerns the collection and/or provision of personal data including the Customer Information);
5.8 not to, or purport to, sell, assign, transfer, convey, charge or sublicense its rights under this Agreement, nor anything made available to it by the Licensor pursuant to this Agreement, including but not limited to providing, leasing, lending, subcontracting or using for timesharing or service bureau purposes any such rights;
5.9 at all times during the continuance of this Agreement and for a period of one year after the expiration or termination for any reason of this Agreement, to pay the Licensor a one-off payment if during such period, whether alone or together with any other person, firm or company in any capacity whatsoever it employs any person who is at that time employed by the Group or otherwise directly or indirectly induces or seeks to induce any such person to leave his or her employment. The one-off fee payable pursuant to this clause shall be a sum representing 25% of the yearly salary or the employee concerned which shall be calculated on a pro rata basis based on the highest income received by that employee in any 3 consecutive months of the previous calendar year, such payment shall be deemed to represent the costs involved in training and developing that employee’s skills. In the event that the Licensor employs any employee of the Licensee during the same period then the Licensor shall pay the Licensee a one-off fee to be calculated on the same basis.
6.1 The Licensee acknowledges and agrees that the Licensor may in its absolute discretion, at any time and without notice, make any additions, amendments, modifications and/or changes to any aspect of the Platform as it sees fit and the Licensee shall have no right whatsoever to use and/or require the Licensor to allow it to use and/or supply the Platform that was in operation prior to the addition, amendment, modification and /or change in question.
6.2 The Licensee grants to the Licensor a worldwide, royalty-free, non-exclusive licence to use the Licensee Content , the Licensee Content and the Customisation Material for the purposes of this Agreement. If required by the Licensor, the Licensee will procure that the Customer grants to the Licensor an additional licence on terms satisfactory to the Licensor in respect of any Licensee Content.
6.3 To the extent that the Licensee’s use of the Platform enhances and/or improves Customer experience and/or use and/or enjoyment of and/or interaction with any aspect of the Platform and in respect of any idea or invention that the Licensee makes in respect of the Platform the Licensee grants an irrevocable, payment and royalty free licence without limit in time (together with an unrestricted right to sub-license) to the Licensor and Radiaca to replicate such use and exploit such idea or invention;
6.4 The Licensee acknowledges and agrees that all pdf’s converted to html made available by the Licensor to Customers are subject to the End User Licence Agreement which the Licensor shall be entitled to make accessible from pdf2mobile.nz or in any other manner to the Customer;
6.5 Upon the termination or expiration of this Agreement for any reason, the Licensor shall hold previous conversions available to the Customers for a period of no more than 6 months after and shall deactivate the Licensee’s access rights, usernames or passwords and shall not exploit for financial gain any Licensee Content or Customer Information created by the Licensee and associated with such Customers;
6.6 The Licensee retains all right, title and interest in and to the Licensee Content and during the continuance of this Agreement grants to the Licensor a non-exclusive, non-transferable, worldwide, fully-paid license to use, copy, and modify the Licensee Content solely to the extent necessary and for the sole purposes of complying with its obligations under this Agreement.
7.1 The Licensee acknowledges and agrees that it is responsible for ensuring its Authorised Users keep all User Accounts confidential and do not allow unauthorised persons to access User Accounts. Furthermore the Licensee acknowledges and agrees that it shall be liable for all activities that occur under all User Accounts and/or in connection with the Licensee’s Account and in this regard, shall indemnify and keep the Licensor and any member of the Group, its directors, officers, employees indemnified against all claims, demands, actions, costs, expenses (including, but not limited, to legal costs and disbursements), losses, damages and any other liability whatsoever arising from or suffered or incurred by reason of any use or alleged use of the User Accounts or Licensee Account by any person whether or not unauthorised by the Licensee. Furthermore the Licensee agrees to immediately notify the Licensor of any unauthorised use of any User Accounts or Licensee Account. The Licensee accepts and agrees that the Licensor shall not be liable for any loss or damage arising from the Licensee’s failure to adhere to the forgoing.
8.1 The Licensor may terminate this Agreement forthwith by giving notice in writing to the Licensee on the happening of any of the following events:
8.1.1 the Licensee commits an irremediable material breach of its obligations under this Agreement;
8.1.2 the Licensee commits a remediable breach (other than a failure to pay money which is addressed in clause 8.1.3 below) which breach is not remedied to the satisfaction of the Licensor within 30 days of the date of service of a written notice outlining the breach and requiring its remedy;
8.1.3 if the Licensee shall at any time fail to pay any amounts due and payable to the Licensor hereunder within 7 days of the Licensor’s written notice demanding payment of such sum;
8.2 The Licensor may terminate this Agreement forthwith by notice to the Licensee (which notice may be given by any means, including orally over the telephone, that the Licensor considers the most expedient) in any of the following events, the Licensee is unable to pay its debts as they fall due, or suffers any event or takes any action which could reasonably be considered to indicate that the Licensee is insolvent or at risk of becoming so in the relatively near future including insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or winding up petition which is not withdrawn, dismissed or discharged within 30 days of its presentation or the appointment of an administrator, receiver or similar over any of the licensee’s assets or undertaking;
8.3 Without prejudice to any other right or remedy available to the Licensor and / or any member of the Group (whether pursuant to this Agreement (including the right to terminate this Agreement), at law, or otherwise) in circumstances where the Licensor has the right to terminate this Agreement pursuant to clause 8.1 and / or 8.2 the Licensor or any member of the Group may deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other agreement between the Licensee and the Licensor or any member of the Group;
8.4 the Licensee may terminate this Agreement forthwith by giving notice in writing to the Licensor in the event that the Licensor commits a material breach which breach is not remedied within 30 days of the date of service of a written notice outlining the breach and requiring its remedy.
9.1 Upon the termination or expiration of this Agreement for any reason, the Licensee shall:
9.1.1 immediately pay to the Licensor the full amount of all monies then or thereafter due together with any interest thereon up until the date of payment;
9.1.2 return to the Licensor or otherwise dispose of or destroy as the Licensor shall direct any Licensor Confidential Information or other property of the Licensor;
9.1.3 notify end users and customers that the services covered in this agreement are no longer available from the licensee.
9.2 The expiration or termination of this Agreement shall be without prejudice to the accrued rights of the parties and any provision of this Agreement which expressly or by implication relates to or governs the acts of the parties subsequent to such expiry or termination shall remain in full force and effect and shall be enforceable notwithstanding such expiry or termination.
10.1 Each party warrants that it has the right to enter into this Agreement;
10.2 The Licensor shall not in any event be liable for any, indirect, special or consequential loss, any loss of profits, any loss of bargain, any loss of opportunity or loss or corruption of data in connection with or arising howsoever out of or in connection with this Agreement and/or the Licensor’s negligence;
10.3 Without prejudice to the above provision of this clause 10 the Licensor’s entire liability in respect of any claim under or arising out of this Agreement (“a Claim”) shall be limited to the greater of, $50,000+GST less any amounts paid by the Licensor to and/or on behalf of the Licensee in respect of any other Claim and the amount that the Licensor can successfully recover in respect of the Claim in question under any policy of insurance it has in place.
10.4 The Licensee agrees that where the Platform is being used for the purpose of a business that the Consumer Guarantees Act 1993 shall not apply.
11.1 The Licensee shall maintain secret and confidential the terms of this Agreement and all Licensor Confidential Information. The Licensee shall respect the Licensor’s proprietary rights in the Licensor Confidential Information and the Licensee shall use it exclusively for the purpose of this Agreement;
11.2 The Licensee shall procure that all members of its staff who have access to any Licensor Confidential Information shall, before being given access (whether as a result of the Licensee’s direct disclosure or otherwise) to such Licensor Confidential Information are made aware of and made subject to these obligations;
11.3 The obligations imposed by this clause shall not apply to any Licensor Confidential Information which is at the date of this Agreement in the public domain without any restriction on its use or which later comes into the public domain otherwise than by reason of the Licensee’s breach of any of its obligations under this Agreement or a breach by any member of the Licensee’s staff of any obligation of confidentiality that they are subject to;
11.4 The Licensor shall only use and/or disclose the Licensee Confidential Information for the purposes of performing its obligations under this Agreement or for the purposes of allowing another member of the Group to perform all or any part of the licensor’s obligations under this Agreement.
11.5 The Licensee and its employees or agents must treat any material either written verbal or in machine-readable form which relates to customers or potential customers of Radiaca, users or potential users of the Services, unannounced information regarding the Services or upgrades to the Services, business plans, marketing strategies, financial information, marketing reports, sales reports or pricing structures of Radiaca or which is otherwise commercially sensitive information relating to this Agreement as confidential and not disclose any of the same to any third party without the express written permission of the Licensor. The liability of the Licensee under this clause will cease if and when such material is published by the Licensor or is contained in a published patent specification or is in the public domain or generally known in the industry (other than as a result of improper disclosure by the Licensee, its employees, officers or agents). This clause does not prevent disclosure of information where required by law or an order of a court or tribunal of competent jurisdiction or to the Licensee’s legal advisers for the purposes of obtaining advice in connection with this Agreement.
11.6 The Licensor will treat any material either written, verbal or in machine-readable form supplied by the Licensee in connection with this Agreement which relates to Customers or potential Customers of the Licensee, plans, marketing strategies, financial information, marketing reports, sales reports or pricing structure of the Licensee or which is otherwise commercially sensitive information relating to this Agreement as confidential and not disclose any of the same to any third party without the express written permission of the Licensee. The liability of the Licensor under this clause will cease if and when such material is published by the Licensee or is contained in a published patent specification or is in the public domain or generally known in the industry (other than as a result of improper disclosure by the Licensor, its employees, officers or agents). This clause does not prevent disclosure of information where required by law or an order of a court or tribunal of competent jurisdiction or to the Licensor’s legal advisers for the purposes of obtaining advice in connection with this Agreement.
11.7 The obligations imposed by this clause 11 shall survive the variation, renewal, expiry or termination of this Agreement.
12.1 The Licensee hereby acknowledges the exclusive rights of the Licensor to own the Platform and all matters comprised therein and itself to utilise the same and to grant to any other person a licence to use the Platform and to amend and modify the same by variation, addition, renewal, substitution or howsoever otherwise. The Licensor retains all right, title and interest in and to the Platform and related intellectual property and nothing in this Agreement conveys any ownership interest to the Licensee;
12.2 The Licensee acknowledges and agrees that certain Customer facing tools and functionality within the Platform are configured on the understanding that the Licensee is registered for GST or other sales tax and that the Licensor shall have no obligation to modify the Platform to function differently in the event that the Licensee is not registered for GST or other sales tax;
12.3 The Licensor shall make all reasonable efforts to keep the Platform secure notwithstanding this the Licensee acknowledges and agrees that the internet is not a fully secure medium and due to the nature of the internet it is possible that viruses, worms, Trojan horses or other similar harmful or deleterious programming routines (“Bugs”) may be inadvertently communicated by or downloaded from the Platform and that the Licensor shall not be responsible or liable for any Bugs that may infect or otherwise impact the Licensee’s use of its computer equipment or other property by virtue of its access to, use of, or browsing of the Platform or downloading of any content from the Platform, the Licensor recommends that the Licensee installs appropriate anti-virus or other protective software;
12.4 The Licensee acknowledges and agrees that the Licensor provides the Platform as-is and with all faults Accordingly, the Licensee agrees that, to the full extent permitted by law, all other warranties and representations, whether oral or in writing and whether implied by statute, common law or otherwise relating to the Platform (including but not limited to performance, security, non infringement of third party rights, integration, merchantability, satisfactory quality or fitness for a particular purpose) and which the Licensee would otherwise have the benefit of are hereby excluded;
12.5 The Licensee acknowledges and agrees that the Licensor makes the Platform available through the internet to the extent commercially reasonable, and subject to outages, communication and data flow failures, interruptions and delays inherent in internet communications. The Licensee acknowledges and agrees that the Licensor does not warrant that access to the Platform will be uninterrupted or error free and acknowledges that problems with the internet, including equipment, software and network failures, impairments or congestion, or the configuration of the Licensee’s computer systems, may prevent, interrupt or delay the Licensee’s access to Platform and that the Licensor is not liable for any delays, interruptions, suspensions or unavailability of the Platform attributable to problems with the internet or the configuration of the Licensee’s computer systems. The Licensee’s acknowledges that access to the Platform requires the use of services supplied by the Licensor’s (or its Affiliate’s) internet service providers and is made available subject to the relevant third party’s acceptable use policies which the Licensee agrees to be bound by and to adhere to. Notwithstanding anything to the contrary in this Agreement, access to any mobile friendly version of Platform accessed by mobile devices may be terminated or suspended at any time;
12.6 The Licensee acknowledges and agrees that it is the Licensee’s responsibility to obtain and maintain at its cost all necessary hardware and software required to access and use the Platform and that the Licensor shall have no obligation to the Licensee in this respect;
12.7 The Licensee acknowledges and agrees that it is a condition of this Agreement that the Licensee nor any officer, director or employee of the Licensee shall knowingly or having ought reasonably to have known give to the Licensor any false or misleading information or makes any misrepresentation howsoever in connection with this Agreement;
12.8 For the avoidance of any doubt the Licensee acknowledges and agrees that no rights in the Licensor’s intellectual property, being any copyright, design, patent, trademark, trade name or other so called intellectual property right whatsoever (whether registered or unregistered and whether existing now or at any time in the future), is granted to the Licensee by this agreement. Furthermore the Licensee acknowledges and agrees that the goodwill and all other rights in and associated with the Platform (including any rights in and/or to any innovations and/or additions to the Platform made by the Licensee and which the Licensor has elected to incorporate into the Platform) and any other property (including any intellectual property rights, business methods, systems and know-how of the Licensor and/or any member of the Group) vest absolutely with the Licensor and that it is the intention of the parties that all such rights and property will at all times and for all purposes remain vested with the Licensor and in the event that any such rights or property at any time accrue to the Licensee by operation of law or otherwise the Licensee will at the Licensor’s request immediately on demand do all such acts and things and execute all such documents as the Licensor shall deem necessary to vest such rights and/or property absolutely with the Licensor.;
12.9 The Licensee acknowledges and agrees that it shall not (and may not allow any third party to):
12.9.1 decompile, mirror, translate, disassemble or otherwise reverse engineer any part of the Platform, source code, algorithms, or underlying ideas of the Platform; or
12.9.2 provide, lease, lend, subcontract, sublicense, re-publish or use for timesharing, service bureau or hosting purposes any or all of the Platform; or
12.9.3 reproduce, modify, copy, distribute, publish, display or create derivative works of any or all of the Platform;
12.9.4 alter, remove, or obscure any copyright, trademark or other proprietary notices or confidentiality legends on or in the Platform.
13.1 The Licensee shall not pledge the credit of the Licensor nor represent itself as being the Licensor nor an agent, partner, employee or representative of the Licensor and shall not hold itself out as such nor as having any power or authority to incur any obligation of any nature express or implied on behalf of the Licensor and nothing in this Agreement shall operate so to constitute the Licensee an agent, partner, employee or representative of the Licensor.
14.1 The Licensee hereby agrees and undertakes fully and effectively to indemnify and keep indemnified the Licensor and any member of the Group as well after as before the expiry or termination of this Agreement for and against all damages, loss, claims, demands, expenses (including legal and professional expenses), costs and any liabilities whatsoever which the Licensor and/or any member of the Group may at any time incur as a result of any breach by the Licensee of any provisions of this Agreement and/or the Licensee’s use of the Platform and/or graphic files, data or any other information supplied by the Licensee to the Licensor and/or the Licensee’s negligence.
15.1 The Licensor may assign, transfer, sub-contract or otherwise deal with any of its rights, benefits or obligations under this Agreement and this Agreement shall inure to the benefit of the successors and assigns of the Licensor and in this regard the Licensee shall do all such acts and things and execute all such documents as the Licensor shall require;
15.2 All rights and licences not specifically and expressly granted to and conferred upon the Licensee by this Agreement are for all purposes reserved to the Licensor;
15.3 Each of the restrictions and provisions contained in this Agreement and in each clause and sub clause hereof shall be construed as independent of every other such restriction and provision to the effect that if any provision of this Agreement or the application of any provision to any person, firm or company or to any circumstances shall be determined to be invalid and unenforceable then save as provided in clause 15.4 below such determination shall not affect any other provision of the Agreement or the application of such provision to any person, firm, company or circumstance all of which other provisions shall remain in full force and effect;
15.4 In the event that any provision of this Agreement shall be held to be invalid or unenforceable by a court of law or other competent authority in a way which in the sole opinion of the Licensor materially adversely affects, the right of the Licensor to receive payment or other remuneration or the terms on which the Licensor supplies goods or services to the Licensee then and in any such case the Licensor may without liability terminate this Agreement by notice in writing to the Licensee to that effect and in such circumstances the provisions of clause 9 above will apply;
15.5 The Licensor shall not be liable for any non performance of any of its obligations under this agreement to the extent that such non performance arises from circumstances beyond the reasonable control of the Licensor;
15.6 No failure of the Licensor to exercise any power given to it hereunder or to insist upon strict compliance by the Licensee or any Guarantor with any obligation or condition hereof and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of any of the Licensor’s rights hereunder;
15.7 No waiver by the Licensor of any particular default by the Licensee shall affect or impair the Licensor’s rights in respect of any subsequent default of any kind by the Licensee, nor shall any delay or omission of the Licensor to exercise any rights arising from any default affect or impair the Licensor’s rights in respect of the said default or any other default of the Licensee hereunder. Subsequent acceptance by the Licensor of any payments by the Licensee shall not be deemed a waiver of any preceding breach by the Licensee of any of the terms covenants or conditions of this Agreement. Any full or partial exercise of any remedy available to the Licensor under this Agreement shall be without prejudice to any other right or remedy available under this Agreement, at law or otherwise, to the Licensor all of which such remedies shall remain fully exercisable;
15.8 Unless otherwise specifically provided no notice given under this Agreement shall be effective unless it is in writing, addressed to the recipient at its address contained in this Agreement (or such other address as shall have been notified from time to time to the sender). A notice shall be deemed to have been properly given if delivered by hand during normal business hours, upon delivery or if sent by courier, on the first Working Day after delivery being signed for;
15.9 This Agreement (which for the avoidance of all doubt includes any Addendums to it) constitutes the entire agreement between the parties and supersedes all prior agreements in connection with the subject matter hereof. No director, employee or agent of the Licensor is authorised to make any representation or warranty not contained in this Agreement and the Licensee acknowledges that he has not relied on any such oral or written representations.;
15.10 The parties agree that a person who is not a party to this agreement shall have no rights under the Contract (Privity) to rely upon or enforce any term of this Agreement;
15.11 This Agreement and all rights and obligations of the parties hereto shall be governed and construed in accordance with the Law of New Zealand and the parties hereto hereby submit to the exclusive jurisdiction of the New Zealand Courts.
16.1 The Licensee agrees that any information about the Licensee provided to the Licensor may be used by the Licensor at any time for any purposes connected with the Licensor’s business including but not limited to direct marketing, debt collection and credit reporting or assessment. New Licensee authorises the Licensor to provide such information to any external agency or any party for credit information and assessment purposes and that the agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at 16-18 Cashew St, Grenada North, Wellington and the Licensee has a certain rights of access to its personal information under the Privacy Act 1993.
17.1 The Licensee acknowledges and agrees with the Licensor that:
17.1.1 the Licensee acquires no property, copyright, intellectual property rights or other right in the Services, the Software or the user guides or any copies, partial copies, reproductions, modifications or translations thereof (whether authorised or unauthorised) or any other aspect of the Services except to the extent of the specific entitlements expressly conferred by this Agreement;
17.1.2 the Licensee shall not do or allow to be done any act or thing which may infringe the rights of the Licensor in the Services, the Software or the user guides or any copyright or intellectual property rights relating to the Services, the Software or the user guides;
17.1.3 the Licensor retains ownership of the Services, the Software and the user guides and all property, copyright, intellectual property rights or other rights in the Services, the Software and the user guides whether in its original form or as modified by the Licensee or any Customer or licensee.
17.2 the Licensor warrants to the Licensee that it has full right title and authority to provide the Services and to enter into this Agreement.
18.1 The Licensee consents to receive commercial emails from the Licensor. The email address for unsubscribing to commercial emails is email@example.com
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The standard conversion fee includes the following features:
Monthly License Fee includes: