1.1. “Author-it” means The Authoring Software Company Limited and its affiliates.
1.2. “Correction” means replacement of corrective code or documentation, which
rectifies a Discrepancy (as hereinafter defined), and includes, but is not limited
to, workarounds, support releases, Updates, component replacements and patches.
1.3. “Data” means all electronic data created by the Licensee and stored, from
time to time, in the Software.
1.4. “Discrepancy” means a material difference between the operation of the Software
and the description of the operation of the Software as contained in the Documentation.
1.5. “Documentation” means any user manuals, training materials, bulletins, information
sheets, technical information or other documentation pertaining to the Software, in
both digital and paper form.
1.6. “Initial Subscription Term” means the initial subscription term for the License,
as set out in Author-it’s proposal or quotation to the Licensee.
1.7. “License” means this On-Premises Subscription Agreement between Author-it
and the Licensee.
1.8. “Licensee” means the legal entity that is acquiring the right to use the
Software in accordance with the terms of this License, as well as any affiliates and
subsidiaries of the Licensee on whose behalf the Licensee is licensing the Software.
1.9. “Primary User” means a User who is authorized by the Licensee to communicate
with Author-it on matters relating to the implementation and use of the Software.
The Primary Users will be Author-it’s primary point of contact in respect to implementation,
use and support and issues.
1.10. “Server” means any computer capable of running the Software and providing
access to the Users.
1.11. “Software” means the specific items and modules of Author-it software for
which the Licensee has paid the Subscription Fees. “Software” includes the Documentation.
1.12. “Subscription Fees” means Author-it’s charges payable by the Licensee for
the right to use the Software, as set out in Author-it’s proposal or quotation to
the Licensee.
1.13. “Subscription Start Date” means the first date upon which the Licensee, and
its Users will gain access to the Software.
1.14. “Third Party Software” means any software in respect to which Author-it is
not the copyright holder.
1.15. “User” means the total number of persons in respect to which the Licensee
has paid Subscription Fees, thereby allowing such persons to use the Software, or
a specific module of the Software.
1.16. “Upgrade” means a major software release whose primary purpose is to add new
functionality or to enhance the performance of the Software. Notwithstanding the
foregoing, an “Upgrade” does not include new software or modules (whether or not branded
as Author-it software) that Author-it develops, markets and prices separately. An
Upgrade does not include any special functionality or analytical tool that Author-it
may design for a specific client but does not make available for general release to
all clients.
1.17. “Update” means a minor software release whose primary purpose is to remove
incompatibilities, fix “bugs”, enhance the stability or remedy technical faults in
the Software.
1.18. “Weekend” means any day that is not a weekday or a public holiday in Auckland,
New Zealand.
2. The License
2.1. This License grants the Licensee the non-exclusive, non-transferable, right
to use the Software strictly in accordance with the terms hereof.
2.2. The Licensee shall have the right to download and install and use only those
modules of the Software that the Licensee shall have licensed and paid Subscription
Fees in respect thereto. The Licensee shall have the right to install the Software
on as many computers as it wishes. Some modules of the Software are licensed on a
concurrent User basis. In respect to such modules, no more than the number of Users
for whom the Licensee shall have licensed and paid Subscription Fees may use the Software
at the same time. Other modules of the Software are licensed on a named User basis.
In respect to such modules, no more than the total number of named Users for whom
the Licensee shall have licensed and paid Subscription Fees may use the Software.
The basis upon which the Software is licensed shall be set out in the relevant proposal,
quotation and invoice submitted by Author-it to the Licensee. In respect to a module
of the Software that requires a license to run on a Server, the Licensee shall install
such module on no more than the number of Servers for which it shall have licensed
and paid Subscription Fees.
2.3. The Licensee may copy the Software for back-up and archival purposes, provided
that the original and each copy is kept in its possession, and that the installation
and use of the Software does not exceed that allowed in clause 2.2 above.
2.4. The Licensee shall not exceed the number of Users or Servers for which it
has paid Subscription Fees. If the Licensee wishes to increase the number of Users
or Servers, it must request a modification to this License and pay the applicable
fees.
2.5. Where the Software is bundled with Third Party Software, such Third Party
Software is supplied to the Licensee on, and subject to, the standard license terms
of the relevant Third Party Software suppliers, which shall take effect between the
Licensee and each such Third Party Software supplier. The Licensee agrees to strictly
comply with such license terms.
3. Subscription Fees
3.1. To use the Software, the Licensee must pay all Subscription Fees and other
fees according to the agreed payment terms. If the Licensee does not pay such fees
on the due date and still fails to make payment within 5 days of being notified of
the same in writing by Author-it:
3.1.1. Author-it may suspend access to and use of the Software from the expiry of
the 5 day notice period; and
3.1.2. Author-it may charge interest on the overdue amount at a rate equal to 5%
above the base rate of the Reserve Bank of New Zealand per annum (compounding daily)
from the original due date for payment,
in each case, until payment is received in full by Author-it.
3.2. Author-it shall also have the right to disable the Software in such circumstance,
thereby rendering the Software non-functional.
3.3. The Subscription Fees quoted to the Licensee shall apply during the Initial
Subscription Term. Author-it may increase the Subscription Fees to: (a) reflect greater
software usage rights requested by the Licensee, (b) offset any increase in the Consumer
Price Index, (c) reflect the value of any greater functionality or enhancements added
to the Software, (d) reflect the actual cost of providing support services to the
Licensee or (e) reflect any other changes in Author-it’s pricing schedule for the
Software. Author-it is not required to give notice to the Licensee of any increase
in the Subscription Fees that is at, or below, the Consumer Price Index. Author-it
shall give the Licensee notice of any increase in the Subscription Fees that is above
the Consumer Price Index at least 60 days before the end of the Initial Subscription
Term or any renewal term, as the case may be. The new Subscription Fees shall then
take effect upon the commencement of the new renewal term.
3.4. Except as otherwise quoted: (a) Subscription Fees are quoted and payable
in [insert currency as applicable to each Licensee]; (b) Subscription Fees are based
on software usage rights purchased and not actual usage, (c) the subscription period
and the payment obligations are non-cancellable and fees paid are non-refundable,
(d) the number of User subscriptions purchased cannot be decreased during the relevant
subscription term, and (e) the fees quoted in any proposal or on the Author-it website
are exclusive of applicable taxes. User subscription fees are based on monthly periods
that begin on the Subscription Start Date and each monthly anniversary thereof; therefore,
fees for User subscriptions added in the middle of a monthly period will be charged
for that full monthly period and the monthly periods remaining in the applicable subscription
term.
4. Payment Terms
4.1. The Licensee shall pay the Subscription Fees in advance as detailed in the
relevant quotation or order. At the start of each subscription term, Author-it shall
invoice the Licensee for the Subscription Fees applicable to that term. When new
User subscriptions are added, Author-it shall issue a supplementary invoice for the
Subscription Fees applicable to such new Users for the balance of that term. To use
the Software, the Licensee must pay all Subscription Fees and other fees according
to the agreed payment terms. If the Licensee does not pay such fees, Author-it may
deprive the Licensee access to the Software, in addition to Author-it’s other rights
and remedies.
4.2. Except as required by law, all payments by the Licensee to Author-it must
be made without deduction or withholding and free from set-off or counter-claim. If
the Licensee is required by law to make any deduction or withholding from any sums
paid or payable by the Licensee to Author-it, then the amount payable to Author-it
must be increased to the extent necessary to ensure that, after making that deduction
or withholding, Author-it receives and retains (free from any liability in respect
of any such deduction or withholding) a net amount equal to what it would have received
or retained had no such deduction or withholding been required or made.
5. Primary Users
5.1. The Licensee shall appoint up to three Primary Users to:
5.1.1. Assist with the implementation of the Software;
5.1.2. Train users how to use the Software to its full advantage; and
5.1.3. Support Users, particularly during the set up and implementation stage, but
also on an on-going basis.
5.2. The Licensee shall ensure that its Primary Users are adequately trained to
carry out the foregoing tasks. Each Primary User should be knowledgeable about: (a)
the features and functionality of the Software, (b) the Licensee’s information management
policies and procedures, and (c) the Licensee’s computer system and workstations.
6. Technical Support
6.1. The Subscription Fees include the cost of providing remote technical support
to the Primary Users as provided below.
6.2. Author-it shall maintain a Help Desk to field technical support questions
from the Primary Users. The Help Desk will be able to access the Data on-line to
emulate the problem experienced by the Primary User and the Licensee authorizes access
for that purpose.
6.3. From time to time, Author-it may establish reasonable procedures for communicating
with the Help Desk, logging Help Desk questions and tracking their resolution. The
Licensee shall comply with such procedures.
6.4. Before contacting the Help Desk, the Primary User shall refer to Author-it’s
on-line Knowledge Centre, which may answer the Primary User’s question.
6.5. Where possible, the Help Desk will provide an immediate answer to the support
question. Where this is not possible, Author-it commits to use commercially reasonable
efforts to respond to the support question as promptly as possible, commensurate with
the seriousness of the issue raised.
6.6. The Help Desk shall be open between the hours of 9:00 AM and 5:00 PM [(US
Pacific)], excluding weekends and public holidays in Auckland, New Zealand.
6.7. Author-it shall provide all technical support remotely, by means of telephone,
email or the Internet. If the Licensee ever requests Author-it to provide on-site
support, Author-it shall provide on-site support at its standard rates and charges.
6.8. Under this arrangement, Author-it shall provide technical support to the
Primary Users and the Primary Users shall provide technical support to the other Users.
6.9. Each Primary User shall provide first level support to the other Users.
If a Primary User is not able to resolve a support issue raised by another User, the
Primary User shall then request support from Author-it. Author-it will not normally
communicate with a User who is not a Primary User.
6.10. The Primary Users shall adopt a procedure for the other Users to report their
issues and questions about the Software to the Primary Users. The Primary Users shall
endeavour to resolve such issues and answer such questions before contacting the Help
Desk. If the Primary Users are not able to resolve an issue or answer a question
from a User, the Primary Users shall seek further assistance from Author-it technical
support.
7. Support
7.1. The Subscription Fees include the cost of providing support on the Software
as provided below.
7.2. Author-it’s Responsibilities:
Author-it agrees to:
7.2.1. Maintain the Software so that it operates substantially in conformity with
applicable specifications, including but not limited to, the specifications in any
Documentation;
7.3. Correct all critical and significant Software errors that Author-it discovers
or that are brought to Author-it’s attention;
7.4. Promptly offer to the Licensee all Upgrades, Updates, modifications, refinements,
Corrections, and enhancements which Author-it incorporates into the Software. However,
while Author-it is committed to the ongoing development of the Software, this Agreement
does not commit Author-it to any specific Upgrade path or frequency for issuing Upgrades;
7.5. Use commercially reasonable efforts to achieve its published response times;
7.6. Provide an error and defect reporting service, thereby giving the Licensee
assurance that Author-it will promptly investigate and correct in a future release
of the Software any errors, defects, or omissions made known to Author-it. Author-it
may implement such error and defect reporting service on its website;
7.7. Offer the Licensee access to the latest version of the Software, including
all Upgrades and Updates. As to any new software or modules that Author-it develops,
markets and prices separately, Author-it shall provide access to the Licensee at a
price and terms to be agreed; and
7.8. Give the Licensee 60 days’ notice of any change to the Software.
7.9. The Licensee’s Responsibilities:
The Licensee shall and shall procure its Primary Users to:
7.9.1. Report all suspected Discrepancies to the Author-it Help Desk;
7.9.2. Use commercially reasonable efforts to assist Author-it in its efforts to
find Corrections to confirmed Discrepancies;
7.9.3. Provide such information to Author-it as will enable Author-it to respond
to the Primary User’s problem or question in an efficient manner;
7.9.4. Comply with Author-it’s error and defect reporting procedures; and
7.9.5. Accept Upgrades and new versions as and when released, since Author-it shall
be maintaining just one version of the Software for all of its clients.
7.10. Author-it is not obligated to provide any hardware support services.
7.11. Author-it is not obligated to take action in respect to:
7.11.1. Discrepancies resulting from a malfunction of the Licensee’s computer system
or Internet access, including workstation malfunctions; or
7.11.2. Discrepancies that do not significantly impair or affect the operation of
the Software.
7.12. The Licensee is responsible for maintaining its local area network and workstations.
The Licensee is also responsible for providing Internet access to the workstations
of Users with appropriate security parameters allowing such Users to access the Software.
8. Subscription Term & Renewal
8.1. The Initial Subscription Term of this Agreement is stated in the relevant
quotation or order and is non-cancellable. However, this Agreement shall be subject
to automatic renewal for additional terms of the same length as the Initial Subscription
Term, as follows:
8.1.1. Either party may give notice of its intention not to renew at least 30 days
before the end of the Initial Subscription Term, in which case termination shall take
effect at the end of the Initial Subscription Term.
8.1.2. If neither party gives such notice, this Agreement shall automatically roll-over
for a renewal term of the same duration. Either party may give notice of its intention
not to renew at least 30 days before the end of the relevant renewal term, in which
case termination shall take effect at the end of the relevant renewal term. This
same procedure shall apply to subsequent renewal terms until either party gives 30
days before the end of the relevant renewal term.
8.1.3. Author-it has no obligation to notify the Licensee of the end of the Initial
Subscription Term or any renewal term. It is the Licensee’s responsibility to give
notice of termination if the Licensee does not wish this Agreement to renew automatically.
9. Documentation
9.1. This License extends to the Documentation, whether in electronic or print
format.
9.2. The Licensee shall have the right to make such copies of Documentation in
electronic format as it reasonably requires for its internal purposes. The Licensee
shall not re-publish Documentation, or distribute Documentation, for use outside of
its organization.
9.3. The Licensee shall not copy, modify or make use of the Documentation except
to use the Software in the manner permitted in this License.
10. Obligations of Licensee
Subject to clause 23.2
10.1. The Licensee shall (a) be responsible for Users’ compliance with this Agreement,
(b) be solely responsible for the accuracy, quality, integrity and legality of the
Data and of the means by which the Data was acquired, (c) use commercially reasonable
efforts to prevent unauthorized access to or use of the Software, and notify Author-it
promptly of any such unauthorized access or use, and (d) use the Software only in
accordance with the Documentation and applicable laws and government regulations,
including relevant privacy laws.
10.2. The Licensee shall not without Author-it’s prior written consent: (i) Copy,
reproduce, translate, adapt, vary or modify the Software; (ii) disassemble, decompile
or “unlock”, reverse engineer, merge or decode the Software in any manner whatsoever;
(iii) provide or otherwise make available the Software in any form to any person outside
the Licensee’s organization; (iv) transfer the Software to any other person under
any circumstances except as permitted by clause 16.1; and (vi) attempt to bypass or
circumvent any security procedures applicable to the Software.
10.3. This License is personal to the Licensee. The Licensee shall only use the
Software for its internal authoring, content management and publishing needs. The
Licensee may also use the Software for the authoring, content management and publishing
needs of other persons or companies provided that the content is provided to such
other persons or companies in a published file format that does not require them to
access or use the Software. If a customer of the Licensee uses the Software licensed
by the Licensee for any purpose, such use by the customer shall not be deemed an internal
business purpose of the Licensee. The Licensee shall not allow such use except with
the express written consent of Author-it, who may grant such consent subject to appropriate
commercial arrangements.
10.4. In respect to the Software, the Licensee shall not sell, rent, lend, lease,
license, sub-license, time-share, assign, act as an application service provider or
bureau service or otherwise collect fees or grant access to persons outside the Licensee’s
organization, except as permitted pursuant to clause 16.1 (Transfer of Software).
10.5. The Licensee may use the Software to maintain object databases for its internal
content management needs. The Licensee may also use the Software to maintain object
databases for the content management needs of other persons or companies and to provide
such object databases to such other persons or companies in a file format that does
not require them to use the Software. The Licensee shall not allow such other persons
or companies to use the Software to access, maintain or manage their object databases
unless such other persons or companies obtain appropriate Licenses from Author-it.
10.6. The Licensee shall supervise and control the use of the Software in accordance
with the terms of this License. The Licensee shall ensure that its employees who
have authorized access to the Software are made aware of the terms of this License
and comply therewith. The Licensee shall maintain safe custody of the Software.
10.7. The Licensee shall not take any action that would cause injury to the rights
of Author-it in the Software or that would deprive Author-it of the fees to which
it is entitled.
10.8. The Licensee represents and warrants that it will comply with all applicable
laws, including laws that protect Author-it’s technology, Software and trade secrets.
10.9. If the Licensee is licensing the Software on behalf of any affiliates or subsidiaries,
the Licensee shall procure such affiliates and subsidiaries to use the Software in
accordance with this License. The Licensee accepts liability for the acts or omissions
of its affiliates and subsidiaries in breach of this License. Where the Software is
provided for purposes of evaluation, the Licensee shall only use the Software for
that purpose. The Licensee shall not use the Software, including any Third Party
Software bundled with the Software, in a production environment or for any commercial
purpose. The Licensee must decide whether to purchase a License before the end of
the agreed evaluation period. At the end of the agreed evaluation period, this License
shall be deemed terminated and the Licensee's right to use the Software, including
any Third Party Software bundled with the Software, is thereupon revoked. The Licensee
or its representatives shall destroy the Software and Documentation, including any
Third Party Software and documentation, or otherwise return or dispose of such material
in such manner as Author-it directs.
10.10. The Licensee’s obligations in this clause 10 shall survive the termination
of this License.
11. Warranty
Subject to clause 23.3
11.1. Author-it warrants that it developed the Software in accordance with general
industry standards and that the Software is free of material defects and shall perform
substantially in accordance with the Documentation under normal use and circumstances.
The term of this warranty is 90 days from the date that the Licensee acquired the
Software.
11.2. If the Software fails to operate in accordance with this warranty, the Licensee
may, as its sole and exclusive remedy, return the Software within the warranty period,
along with proof of purchase if requested, specifying the problem. Author-it shall
either replace the Software or refund the Subscription Fees paid by the Licensee,
at Author-it’s sole discretion.
11.3. Except for the limited warranty described above, there are no other warranties,
either expressed or implied, concerning the Software or Documentation. Author-it
excludes, and expressly disclaims, all express and implied warranties of merchantability
or fitness for purpose, to the extent permitted by law.
12. Limitations of Liability
Subject to clause 23.4
12.1. Author-it has used all reasonable efforts to develop the Software so that
it is stable and reliable. Because there is such a diverse range of computer systems,
network infrastructures and operating environments, Author-it can not warrant that
the Software will be compatible with every computer system, network infrastructure
and operating environment. It is the Licensee’s responsibility to ascertain whether
the Software is compatible with its computer system, network infrastructure and operating
environment.
12.2. Author-it does not warrant that the Software will satisfy the Licensee’s requirements.
It is the Licensee’s responsibility to determine whether the Software will satisfy
its requirements. Author-it gives no performance warranties.
12.3. Author-it does not warrant the uninterrupted use of the Software.
12.4. Author-it does not warrant that the Software is free of "bugs", errors or
defects. Author-it shall not be responsible to the Licensee for costs or damages
incurred as a result of any such "bugs", errors or defects. The existence of such
"bugs", errors or defects shall not constitute a breach of this License or any warranty.
12.5. To avoid any loss or inconvenience caused by faults with the Software, the
Licensee shall back-up its data in accordance with best IT management practice. Author-it
accepts no responsibility for lost or corrupted data, regardless of the cause, or
the restoration thereof.
12.6. Author-it shall not be responsible for any failure, delay or interruption
in the Licensee’s use of the Software, including without limitation, system crashes,
computer malfunctions, hardware or software faults, system errors, security breaches,
theft, incompatibility issues, telecommunications problems, fire, flood, civil disturbance
or any other event commonly referred to as an "Act of God".
12.7. Author-it accepts no liability for security breaches, including without limitation,
security breaches resulting from computer hackers, unlawful entry, unauthorized entry,
theft, disgruntled employees and other fraudulent acts. While all reasonable efforts
shall be made to ensure a secure environment for the transmission of data and other
information, Author-it accepts no liability for any security breaches.
12.8. Author-it shall not be liable for any delay, damage, loss, injury, failure
or breakdown that the Licensee may suffer as a consequence of any defect or deficiency
in the Software, including any delay, damage, loss, injury, failure or breakdown to
other programs and equipment of the Licensee.
12.9. Any statements contained on Author-it’s website, in its marketing literature
or in client proposals shall not be deemed to widen Author-it’s obligations under
this License.
12.10. Author-it staff, agents and representatives have no authority to make
any representations, statements, warranties, conditions or agreements that conflict
with this License, unless made in writing by a duly authorized officer. Any such
unauthorized representations, statements, warranties, conditions or agreements shall
not bind Author-it nor widen Author-it’s obligations under this License.
12.11. To the extent allowed by law, Author-it disclaims all liability, whether
in contract or tort, for any loss or damage arising from (a) the Licensee’s use of
the Software, (b) the suspension or interruption of such use, (c) the termination
of such use or (d) Author-it’s errors or omissions in providing the Services. Such
disclaimer applies to direct, indirect, special, incidental and consequential damages
including loss of profit, loss of business, loss of revenue, loss of goodwill, loss
of productivity, losses resulting from downtime of the Licensee’s network, domain
or e-mail system, losses resulting from system crashes, losses resulting from lost
or corrupted data, documents or emails or the restoration thereof, or failure to achieve
anticipated benefits, cost savings or production efficiencies. Author-it shall not
be liable for any delay, damage, loss, injury, failure or breakdown that the Licensee
may suffer as a consequence of any defect or deficiency in the Software, including
any delay, damage, loss, injury, failure or breakdown to the Licensee’s other programs
and equipment.
12.12. Notwithstanding the exclusions, limitations and disclaimers in this clause
7 and elsewhere in this License, if there is any event or circumstance resulting in
liability to Author-it, Author-it’s liability shall not exceed the aggregate Subscription
Fees (if applicable) paid by the Licensee.
12.13. All of the above exclusions, limitations and disclaimers shall survive
the termination of this License.
13. Other Services
13.1. Except as otherwise stated in a proposal furnished by Author-it and accepted
by the Licensee, the Subscription Fees do not cover the cost of: (i) Installation,
implementation and consulting services; (ii) Customization services; (iii) Integration
services; (iv) Data importing services; (v) Networking services; (vi) Software configuration
and preference setting; or (ix) Training. Upon the Licensee’s request, Author-it
shall perform such other services at its standard rates and charges, plus travel and
accommodation expenses.
14. Copyright
14.1. Author-it retains exclusive ownership of all copyright and other intellectual
property rights in the Software and Documentation, whether in electronic or paper
form. The Licensee shall not, during or at any time after the expiry or termination
of this License, commit, allow, suffer or permit any act that infringes Author-it’s
copyright and intellectual property rights in the Software and Documentation. The
Licensee expressly agrees that it shall not, during or at any time after the expiry
or termination of this agreement: (a) Translate, adapt, reverse engineer or copy the
Software; (b) provide or otherwise make the Software available in any form to any
person outside the Licensees organization without the express written consent of Author-it;
(c) attempt to bypass, circumvent, compromise or thwart any security procedures applicable
to the Software; and (d) take any action that would cause injury to Author-it’s rights
in the Software or that would deprive Author-it of the Subscription Fees to which
it is entitled under this Agreement, except for internal back-up and archival purposes
pursuant to clause 2.3.
14.2. The Licensee acknowledges that Author-it retains exclusive ownership of any
new intellectual property rights in the Software, including any improvements, ideas,
comments or suggestions relating to the Author-it product received from, or suggested
by, licensees under this License. The Licensee agrees that they have no right, title,
or interest in such improvements, ideas, comments or suggestions relating to the Author-it
product and any such improvements, ideas, comments or suggestions are automatically
assigned back to Author-it.
14.3. This License is a license to use the Software. It is NOT an agreement for
the sale of the Software. The Licensee’s rights to use the Software are specified
in this License. The Licensee has no other rights in respect to the Software except
as expressly granted to it in this License or related agreements with Author-it.
14.4. The Licensee shall indemnify Author-it against all liabilities, costs, losses,
damages and expenses that Author-it may incur or suffer because of the Licensee’s
breach of Author-it’s copyright or other intellectual property rights in the Software
and related Documentation.
15. Confidential information
15.1. “Confidential Information” means,
15.1.1. in respect of Author-it, all information of a non-public nature in whatever
form (verbal, written or electronic) concerning Author-it’s business and the Software,
including all such information that Author-it may have disclosed to the Licensee or
its Users prior to the Subscription Start Date. Without limiting the generality of
the foregoing, the parties shall regard the following types of information as Confidential
Information of Author-it: Documentation; future Updates, Upgrades and new releases;
report formats, web interfaces, concepts, design ideas; instructions; inventions;
know-how; fees, prices and other commercial terms in this License; manuals; marketing
strategies; market research; patent information; pricing strategies; product enhancements;
software design documents; software features; specifications; technical information;
and trade secrets.
15.1.2. In respect to the Licensee, all information of a non-public nature in whatever
form (verbal, written or electronic) concerning the Licensee’s business, employees,
and foreign exchange policies, including all such information that the Licensee may
have disclosed to Author-it prior to the Subscription Start Date. Without limiting
the generality of the foregoing, the parties shall regard the following types of information
as Confidential Information of the Licensee: Data together with information, reports
and analyses compiled from the Data and specific to the Licensee.
15.1.3. Notwithstanding clause 15.1.1 and 15.1.2 above, the following information
shall not constitute Confidential Information: (a) Information that is in the public
domain or that subsequently enters the public domain through no fault of either party;
(b) Information that either party receives in good faith from a third party provided
that such third party obtained such information through lawful means and had the right
to disclose such information to such party; and (c) Information that either party
can demonstrate by written record it knew on the date of disclosure.
15.1.4. From time to time, the parties may receive Confidential Information from each
other.
15.1.5. Each party agrees that it will keep secret all Confidential Information of
the other party and not disclose the same to anyone else during or after the term
of this License. A party receiving Confidential Information will not share such Confidential
Information with a person outside its organisation. However, Author-it may share
the Licensee’s Confidential Information with a duly authorized agent pursuant to clause
20.
15.2. Each party agrees to limit access to Confidential Information of the other
party to qualified staff who understand and respect the importance for confidentiality.
15.3. Each party agrees to deliver, promptly upon termination of this Agreement,
all Confidential Information in its possession belonging to the other party.
15.4. In addition to the confidentiality obligations above, each party shall fully
comply with relevant privacy laws.
16. Transfer of Software
16.1. The Licensee shall not transfer the Software except with the prior written
consent of Author-it. If Author-it gives its consent, it will be on the basis that:
(a) the Licensee transfers all the Software and Documentation as a whole, including
all prior versions and upgrades; (b) the Licensee shall not thereafter use the Software
or Documentation, including prior versions and upgrades, and shall remove all copies
of the Software from its computers; and (c) the transferee accepts, in writing, the
terms of this License and agrees to comply with them.
16.2. The Licensee shall not be deemed to have transferred the Software pursuant
to clause 16.1 in circumstances where the Licensee merges with, or its shares are
acquired by, another company. However, in such event, such other company shall be
deemed to have accepted the terms and conditions of this License and to have assumed
the Licensee’s rights and obligations hereunder.
16.3. If the Licensee installs a new version of the Software, it shall not thereafter
use, or transfer, any prior versions.
17. Right to Integrate With Other Software
17.1. Nothing in this License shall be construed to prevent the Licensee from making,
or having made, developments that enable the Software to operate in conjunction with
the Licensee’s and/or a third party’s products as part of an integrated system. However,
the Licensee shall not have the right to license the Software as part of an integrated
system without Author-it’s written consent. As a condition to giving its written
consent, Author-it may require the Licensee to disclose the Author-it copyright by
displaying in one or more places “Powered by Author-it” or such other words as Author-it
shall prescribe. Author-it shall prescribe the exact content, size, format and placement
of such words in accordance with its branding requirements. The Licensee shall not
allow its customers to use the Software as part of the Licensee’s integrated system
except with Author-it’s written consent and subject to the payment of such additional
fees as Author-it may specify. For the avoidance of doubt, nothing in this clause
shall transfer to the Licensee ownership or title in any Software so integrated and
the Licensee shall have no greater rights to such Software, when so integrated, as
the Licensee has under this License in respect to the Software, when not so integrated.
18. Term of License
18.1. This License commences upon installation of the Software. Installation shall
be deemed to occur when the Licensee installs the first of a series of modules comprising
the Software. Subject to clause 10.9, clause 1.1 and clause 18.2, this License shall
continue in perpetuity.
18.2. Author-it shall have the right to terminate this License, and to disable the
Software, thereby rendering the Software non-functional, in the event that the Licensee
breaches any term herein or fails to pay any applicable fees, whether under this License
or under any other agreement with Author-it. In the case of a breach, if such breach
is capable of remedy, Author-it shall give the Licensee ten days written notice within
which remedy such breach. If, in Author-it’s reasonable judgment, such breach is
not capable of remedy, termination shall take effect immediately upon the Licensee’s
receipt of notice by Author-it.
18.3. In the case of non-payment, Author-it shall give the Licensee five days written
notice within which to make such payment. If the Licensee shall not have remedied
a breach that is capable of remedy, or made such payment, whichever the case may be,
by the end of such five notice period, Author-it may:
18.3.1. Suspend Licensee’s access to and use of the Software from the expiry of the
5 day notice period; and
18.3.2. Charge interest on the overdue amount at a rate equal to 5% above the base
rate of the Reserve Bank of New Zealand per annum (compounding daily) from the original
due date for payment,
in each case, until payment is received in full by Author-it.
18.4. Upon termination, the Licensee’s right to use the Software shall be deemed
revoked. The Licensee or its representatives shall destroy the Software and Documentation
or otherwise return or dispose of such material in such manner as Author-it directs.
18.5. Termination of this License is without prejudice to any rights or remedies
that Author-it may have under law or equity. Any expense incurred by Author-it to
rectify any default by the Licensee or in enforcing any of its rights shall be reimbursed
by the Licensee on written demand from Author-it.
19. Promotion
19.1. The Licensee permits Author-it to disclose the Licensee’s name and brand in
advertising and promotional material, provided such disclosure does not go beyond
mentioning that the Licensee uses the Software and Author-it makes such disclosure
in a dignified and responsible fashion.
20. Delegation
20.1. To provide prompt and efficient service to its Licensee, Author-it may delegate
some or all of its rights and obligations under this License to third parties with
the appropriate resources and experience. Such outsourced obligations may include,
without limitation, the provision of hosted services, integration services, customisation
services, set-up services, support, maintenance and training. Any such delegation
shall not affect Author-it’s rights and obligations under this License.
20.2. Author-it may notify the Licensee in writing of such third party to whom it
has delegated authority and the scope of such delegated authority. Author-it may
request the Licensee deal with such third party in respect to matters falling within
its scope of authority on the same basis as the Licensee would otherwise have dealt
with Author-it.
20.3. Upon written notice to the Licensee, Author-it may revoke a third party’s
authority to act for Author-it or Author-it may replace such third party.
21. Amendments
21.1. Any changes or modifications to this License requested by the Licensee shall
be valid only if agreed by Author-it in writing.
21.2. Author-it reserves the right to make non-material amendments to the Documentation
from time to time. Author-it will seek the Licensee’s consent before making an material
amendments to the Documentation or substituting the Documentation for a new version
thereof. The terms and conditions of such new version shall apply to all Licenses
held by the Licensee when the Licensee (a) buys an additional License, or (b) installs
a new release of the Software, whichever comes first.
22. Non-Waiver
22.1. If Author-it delays enforcing an obligation or remedy under this License,
such delay shall not result in a waiver or variation of such obligation or remedy.
No failure by Author-it to insist upon strict performance of any term or condition
in this License shall constitute a waiver or variation of such term or condition.
Such failure shall not prevent Author-it from claiming a default or seeking a remedy
under this License.
23. Invalidity of Clause
23.1. If any provision of this License is determined to be void or unenforceable,
the remainder will remain valid and enforceable according to its terms.
23.2. Certain jurisdictions have adopted laws expressly permitting reverse engineering,
decoding, decompiling and other uses of the Software prohibited in clause 10. In
respect to such jurisdictions, the prohibitions in clause 10 shall be deemed modified
but only to the extent necessary to comply with the laws of such jurisdictions.
23.3. Some jurisdictions do not allow the exclusion of certain implied warranties
or the imposition of certain warranty conditions, so the warranty exclusions and conditions
in clause 11 may not apply to a Licensee in such jurisdictions. This License does
not exclude any warranties or impose any conditions that may not, under applicable
law, be excluded or imposed. The warranty in clause 9 gives the Licensee specific
legal rights, and does not limit any other legal rights that the Licensee may have
under relevant law, except where such relevant law expressly allows such limitations
as contained in this License.
23.4. Certain jurisdictions limit the right of a supplier of software to disclaim
liability for loss or damage arising from the use of software. In respect to such
jurisdictions, the disclaimers in clause 12 shall be deemed modified but only to the
extent necessary to comply with the laws of such jurisdictions.
24. Governing law
24.1. These terms are governed by the laws of New Zealand and the parties submit
to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute
or proceeding arising out of this Subscription Agreement.
25. Acceptance
25.1. The Licensee acknowledges having received this License before paying the Subscription
Fees. By paying the Subscription Fees and by using the Software, the Licensee shall
be deemed to have accepted the terms and conditions in this License.
1. Definitions
1.1. “Author-it” means The Authoring Software Company Limited and its affiliates.
1.2. “Correction” means replacement of corrective code or documentation, which rectifies a Discrepancy (as hereinafter defined), and includes, but is not limited to, workarounds, support releases, Updates, component replacements and patches.
1.3. “Data” means all electronic data created by the Licensee and stored, from time to time, in the Software.
1.4. “Discrepancy” means a material difference between the operation of the Software and the description of the operation of the Software as contained in the Documentation.
1.5. “Documentation” means any user manuals, training materials, bulletins, information sheets, technical information or other documentation pertaining to the Software, in both digital and paper form.
1.6. “Initial Subscription Term” means the initial subscription term for the License, as set out in Author-it’s proposal or quotation to the Licensee.
1.7. “License” means this On-Premises Subscription Agreement between Author-it and the Licensee.
1.8. “Licensee” means the legal entity that is acquiring the right to use the Software in accordance with the terms of this License, as well as any affiliates and subsidiaries of the Licensee on whose behalf the Licensee is licensing the Software.
1.9. “Primary User” means a User who is authorized by the Licensee to communicate with Author-it on matters relating to the implementation and use of the Software. The Primary Users will be Author-it’s primary point of contact in respect to implementation, use and support and issues.
1.10. “Server” means any computer capable of running the Software and providing access to the Users.
1.11. “Software” means the specific items and modules of Author-it software for which the Licensee has paid the Subscription Fees. “Software” includes the Documentation.
1.12. “Subscription Fees” means Author-it’s charges payable by the Licensee for the right to use the Software, as set out in Author-it’s proposal or quotation to the Licensee.
1.13. “Subscription Start Date” means the first date upon which the Licensee, and its Users will gain access to the Software.
1.14. “Third Party Software” means any software in respect to which Author-it is not the copyright holder.
1.15. “User” means the total number of persons in respect to which the Licensee has paid Subscription Fees, thereby allowing such persons to use the Software, or a specific module of the Software.
1.16. “Upgrade” means a major software release whose primary purpose is to add new functionality or to enhance the performance of the Software. Notwithstanding the foregoing, an “Upgrade” does not include new software or modules (whether or not branded as Author-it software) that Author-it develops, markets and prices separately. An Upgrade does not include any special functionality or analytical tool that Author-it may design for a specific client but does not make available for general release to all clients.
1.17. “Update” means a minor software release whose primary purpose is to remove incompatibilities, fix “bugs”, enhance the stability or remedy technical faults in the Software.
1.18. “Weekend” means any day that is not a weekday or a public holiday in Auckland, New Zealand.
2. The License
2.1. This License grants the Licensee the non-exclusive, non-transferable, right to use the Software strictly in accordance with the terms hereof.
2.2. The Licensee shall have the right to download and install and use only those modules of the Software that the Licensee shall have licensed and paid Subscription Fees in respect thereto. The Licensee shall have the right to install the Software on as many computers as it wishes. Some modules of the Software are licensed on a concurrent User basis. In respect to such modules, no more than the number of Users for whom the Licensee shall have licensed and paid Subscription Fees may use the Software at the same time. Other modules of the Software are licensed on a named User basis. In respect to such modules, no more than the total number of named Users for whom the Licensee shall have licensed and paid Subscription Fees may use the Software. The basis upon which the Software is licensed shall be set out in the relevant proposal, quotation and invoice submitted by Author-it to the Licensee. In respect to a module of the Software that requires a license to run on a Server, the Licensee shall install such module on no more than the number of Servers for which it shall have licensed and paid Subscription Fees.
2.3. The Licensee may copy the Software for back-up and archival purposes, provided that the original and each copy is kept in its possession, and that the installation and use of the Software does not exceed that allowed in clause 2.2 above.
2.4. The Licensee shall not exceed the number of Users or Servers for which it has paid Subscription Fees. If the Licensee wishes to increase the number of Users or Servers, it must request a modification to this License and pay the applicable fees.
2.5. Where the Software is bundled with Third Party Software, such Third Party Software is supplied to the Licensee on, and subject to, the standard license terms of the relevant Third Party Software suppliers, which shall take effect between the Licensee and each such Third Party Software supplier. The Licensee agrees to strictly comply with such license terms.
3. Subscription Fees
3.1. To use the Software, the Licensee must pay all Subscription Fees and other fees according to the agreed payment terms. If the Licensee does not pay such fees on the due date and still fails to make payment within 5 days of being notified of the same in writing by Author-it:
3.1.1. Author-it may suspend access to and use of the Software from the expiry of the 5 day notice period; and
3.1.2. Author-it may charge interest on the overdue amount at a rate equal to 5% above the base rate of the Reserve Bank of New Zealand per annum (compounding daily) from the original due date for payment,
in each case, until payment is received in full by Author-it.
3.2. Author-it shall also have the right to disable the Software in such circumstance, thereby rendering the Software non-functional.
3.3. The Subscription Fees quoted to the Licensee shall apply during the Initial Subscription Term. Author-it may increase the Subscription Fees to: (a) reflect greater software usage rights requested by the Licensee, (b) offset any increase in the Consumer Price Index, (c) reflect the value of any greater functionality or enhancements added to the Software, (d) reflect the actual cost of providing support services to the Licensee or (e) reflect any other changes in Author-it’s pricing schedule for the Software. Author-it is not required to give notice to the Licensee of any increase in the Subscription Fees that is at, or below, the Consumer Price Index. Author-it shall give the Licensee notice of any increase in the Subscription Fees that is above the Consumer Price Index at least 60 days before the end of the Initial Subscription Term or any renewal term, as the case may be. The new Subscription Fees shall then take effect upon the commencement of the new renewal term.
3.4. Except as otherwise quoted: (a) Subscription Fees are quoted and payable in [insert currency as applicable to each Licensee]; (b) Subscription Fees are based on software usage rights purchased and not actual usage, (c) the subscription period and the payment obligations are non-cancellable and fees paid are non-refundable, (d) the number of User subscriptions purchased cannot be decreased during the relevant subscription term, and (e) the fees quoted in any proposal or on the Author-it website are exclusive of applicable taxes. User subscription fees are based on monthly periods that begin on the Subscription Start Date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the applicable subscription term.
4. Payment Terms
4.1. The Licensee shall pay the Subscription Fees in advance as detailed in the relevant quotation or order. At the start of each subscription term, Author-it shall invoice the Licensee for the Subscription Fees applicable to that term. When new User subscriptions are added, Author-it shall issue a supplementary invoice for the Subscription Fees applicable to such new Users for the balance of that term. To use the Software, the Licensee must pay all Subscription Fees and other fees according to the agreed payment terms. If the Licensee does not pay such fees, Author-it may deprive the Licensee access to the Software, in addition to Author-it’s other rights and remedies.
4.2. Except as required by law, all payments by the Licensee to Author-it must be made without deduction or withholding and free from set-off or counter-claim. If the Licensee is required by law to make any deduction or withholding from any sums paid or payable by the Licensee to Author-it, then the amount payable to Author-it must be increased to the extent necessary to ensure that, after making that deduction or withholding, Author-it receives and retains (free from any liability in respect of any such deduction or withholding) a net amount equal to what it would have received or retained had no such deduction or withholding been required or made.
5. Primary Users
5.1. The Licensee shall appoint up to three Primary Users to:
5.1.1. Assist with the implementation of the Software;
5.1.2. Train users how to use the Software to its full advantage; and
5.1.3. Support Users, particularly during the set up and implementation stage, but also on an on-going basis.
5.2. The Licensee shall ensure that its Primary Users are adequately trained to carry out the foregoing tasks. Each Primary User should be knowledgeable about: (a) the features and functionality of the Software, (b) the Licensee’s information management policies and procedures, and (c) the Licensee’s computer system and workstations.
6. Technical Support
6.1. The Subscription Fees include the cost of providing remote technical support to the Primary Users as provided below.
6.2. Author-it shall maintain a Help Desk to field technical support questions from the Primary Users. The Help Desk will be able to access the Data on-line to emulate the problem experienced by the Primary User and the Licensee authorizes access for that purpose.
6.3. From time to time, Author-it may establish reasonable procedures for communicating with the Help Desk, logging Help Desk questions and tracking their resolution. The Licensee shall comply with such procedures.
6.4. Before contacting the Help Desk, the Primary User shall refer to Author-it’s on-line Knowledge Centre, which may answer the Primary User’s question.
6.5. Where possible, the Help Desk will provide an immediate answer to the support question. Where this is not possible, Author-it commits to use commercially reasonable efforts to respond to the support question as promptly as possible, commensurate with the seriousness of the issue raised.
6.6. The Help Desk shall be open between the hours of 9:00 AM and 5:00 PM [(US Pacific)], excluding weekends and public holidays in Auckland, New Zealand.
6.7. Author-it shall provide all technical support remotely, by means of telephone, email or the Internet. If the Licensee ever requests Author-it to provide on-site support, Author-it shall provide on-site support at its standard rates and charges.
6.8. Under this arrangement, Author-it shall provide technical support to the Primary Users and the Primary Users shall provide technical support to the other Users.
6.9. Each Primary User shall provide first level support to the other Users. If a Primary User is not able to resolve a support issue raised by another User, the Primary User shall then request support from Author-it. Author-it will not normally communicate with a User who is not a Primary User.
6.10. The Primary Users shall adopt a procedure for the other Users to report their issues and questions about the Software to the Primary Users. The Primary Users shall endeavour to resolve such issues and answer such questions before contacting the Help Desk. If the Primary Users are not able to resolve an issue or answer a question from a User, the Primary Users shall seek further assistance from Author-it technical support.
7. Support
7.1. The Subscription Fees include the cost of providing support on the Software as provided below.
7.2. Author-it’s Responsibilities:
Author-it agrees to:
7.2.1. Maintain the Software so that it operates substantially in conformity with applicable specifications, including but not limited to, the specifications in any Documentation;
7.3. Correct all critical and significant Software errors that Author-it discovers or that are brought to Author-it’s attention;
7.4. Promptly offer to the Licensee all Upgrades, Updates, modifications, refinements, Corrections, and enhancements which Author-it incorporates into the Software. However, while Author-it is committed to the ongoing development of the Software, this Agreement does not commit Author-it to any specific Upgrade path or frequency for issuing Upgrades;
7.5. Use commercially reasonable efforts to achieve its published response times;
7.6. Provide an error and defect reporting service, thereby giving the Licensee assurance that Author-it will promptly investigate and correct in a future release of the Software any errors, defects, or omissions made known to Author-it. Author-it may implement such error and defect reporting service on its website;
7.7. Offer the Licensee access to the latest version of the Software, including all Upgrades and Updates. As to any new software or modules that Author-it develops, markets and prices separately, Author-it shall provide access to the Licensee at a price and terms to be agreed; and
7.8. Give the Licensee 60 days’ notice of any change to the Software.
7.9. The Licensee’s Responsibilities:
The Licensee shall and shall procure its Primary Users to:
7.9.1. Report all suspected Discrepancies to the Author-it Help Desk;
7.9.2. Use commercially reasonable efforts to assist Author-it in its efforts to find Corrections to confirmed Discrepancies;
7.9.3. Provide such information to Author-it as will enable Author-it to respond to the Primary User’s problem or question in an efficient manner;
7.9.4. Comply with Author-it’s error and defect reporting procedures; and
7.9.5. Accept Upgrades and new versions as and when released, since Author-it shall be maintaining just one version of the Software for all of its clients.
7.10. Author-it is not obligated to provide any hardware support services.
7.11. Author-it is not obligated to take action in respect to:
7.11.1. Discrepancies resulting from a malfunction of the Licensee’s computer system or Internet access, including workstation malfunctions; or
7.11.2. Discrepancies that do not significantly impair or affect the operation of the Software.
7.12. The Licensee is responsible for maintaining its local area network and workstations. The Licensee is also responsible for providing Internet access to the workstations of Users with appropriate security parameters allowing such Users to access the Software.
8. Subscription Term & Renewal
8.1. The Initial Subscription Term of this Agreement is stated in the relevant quotation or order and is non-cancellable. However, this Agreement shall be subject to automatic renewal for additional terms of the same length as the Initial Subscription Term, as follows:
8.1.1. Either party may give notice of its intention not to renew at least 30 days before the end of the Initial Subscription Term, in which case termination shall take effect at the end of the Initial Subscription Term.
8.1.2. If neither party gives such notice, this Agreement shall automatically roll-over for a renewal term of the same duration. Either party may give notice of its intention not to renew at least 30 days before the end of the relevant renewal term, in which case termination shall take effect at the end of the relevant renewal term. This same procedure shall apply to subsequent renewal terms until either party gives 30 days before the end of the relevant renewal term.
8.1.3. Author-it has no obligation to notify the Licensee of the end of the Initial Subscription Term or any renewal term. It is the Licensee’s responsibility to give notice of termination if the Licensee does not wish this Agreement to renew automatically.
9. Documentation
9.1. This License extends to the Documentation, whether in electronic or print format.
9.2. The Licensee shall have the right to make such copies of Documentation in electronic format as it reasonably requires for its internal purposes. The Licensee shall not re-publish Documentation, or distribute Documentation, for use outside of its organization.
9.3. The Licensee shall not copy, modify or make use of the Documentation except to use the Software in the manner permitted in this License.
10. Obligations of Licensee
Subject to clause 23.2
10.1. The Licensee shall (a) be responsible for Users’ compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of the Data and of the means by which the Data was acquired, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Author-it promptly of any such unauthorized access or use, and (d) use the Software only in accordance with the Documentation and applicable laws and government regulations, including relevant privacy laws.
10.2. The Licensee shall not without Author-it’s prior written consent: (i) Copy, reproduce, translate, adapt, vary or modify the Software; (ii) disassemble, decompile or “unlock”, reverse engineer, merge or decode the Software in any manner whatsoever; (iii) provide or otherwise make available the Software in any form to any person outside the Licensee’s organization; (iv) transfer the Software to any other person under any circumstances except as permitted by clause 16.1; and (vi) attempt to bypass or circumvent any security procedures applicable to the Software.
10.3. This License is personal to the Licensee. The Licensee shall only use the Software for its internal authoring, content management and publishing needs. The Licensee may also use the Software for the authoring, content management and publishing needs of other persons or companies provided that the content is provided to such other persons or companies in a published file format that does not require them to access or use the Software. If a customer of the Licensee uses the Software licensed by the Licensee for any purpose, such use by the customer shall not be deemed an internal business purpose of the Licensee. The Licensee shall not allow such use except with the express written consent of Author-it, who may grant such consent subject to appropriate commercial arrangements.
10.4. In respect to the Software, the Licensee shall not sell, rent, lend, lease, license, sub-license, time-share, assign, act as an application service provider or bureau service or otherwise collect fees or grant access to persons outside the Licensee’s organization, except as permitted pursuant to clause 16.1 (Transfer of Software).
10.5. The Licensee may use the Software to maintain object databases for its internal content management needs. The Licensee may also use the Software to maintain object databases for the content management needs of other persons or companies and to provide such object databases to such other persons or companies in a file format that does not require them to use the Software. The Licensee shall not allow such other persons or companies to use the Software to access, maintain or manage their object databases unless such other persons or companies obtain appropriate Licenses from Author-it.
10.6. The Licensee shall supervise and control the use of the Software in accordance with the terms of this License. The Licensee shall ensure that its employees who have authorized access to the Software are made aware of the terms of this License and comply therewith. The Licensee shall maintain safe custody of the Software.
10.7. The Licensee shall not take any action that would cause injury to the rights of Author-it in the Software or that would deprive Author-it of the fees to which it is entitled.
10.8. The Licensee represents and warrants that it will comply with all applicable laws, including laws that protect Author-it’s technology, Software and trade secrets.
10.9. If the Licensee is licensing the Software on behalf of any affiliates or subsidiaries, the Licensee shall procure such affiliates and subsidiaries to use the Software in accordance with this License. The Licensee accepts liability for the acts or omissions of its affiliates and subsidiaries in breach of this License. Where the Software is provided for purposes of evaluation, the Licensee shall only use the Software for that purpose. The Licensee shall not use the Software, including any Third Party Software bundled with the Software, in a production environment or for any commercial purpose. The Licensee must decide whether to purchase a License before the end of the agreed evaluation period. At the end of the agreed evaluation period, this License shall be deemed terminated and the Licensee's right to use the Software, including any Third Party Software bundled with the Software, is thereupon revoked. The Licensee or its representatives shall destroy the Software and Documentation, including any Third Party Software and documentation, or otherwise return or dispose of such material in such manner as Author-it directs.
10.10. The Licensee’s obligations in this clause 10 shall survive the termination of this License.
11. Warranty
Subject to clause 23.3
11.1. Author-it warrants that it developed the Software in accordance with general industry standards and that the Software is free of material defects and shall perform substantially in accordance with the Documentation under normal use and circumstances. The term of this warranty is 90 days from the date that the Licensee acquired the Software.
11.2. If the Software fails to operate in accordance with this warranty, the Licensee may, as its sole and exclusive remedy, return the Software within the warranty period, along with proof of purchase if requested, specifying the problem. Author-it shall either replace the Software or refund the Subscription Fees paid by the Licensee, at Author-it’s sole discretion.
11.3. Except for the limited warranty described above, there are no other warranties, either expressed or implied, concerning the Software or Documentation. Author-it excludes, and expressly disclaims, all express and implied warranties of merchantability or fitness for purpose, to the extent permitted by law.
12. Limitations of Liability
Subject to clause 23.4
12.1. Author-it has used all reasonable efforts to develop the Software so that it is stable and reliable. Because there is such a diverse range of computer systems, network infrastructures and operating environments, Author-it can not warrant that the Software will be compatible with every computer system, network infrastructure and operating environment. It is the Licensee’s responsibility to ascertain whether the Software is compatible with its computer system, network infrastructure and operating environment.
12.2. Author-it does not warrant that the Software will satisfy the Licensee’s requirements. It is the Licensee’s responsibility to determine whether the Software will satisfy its requirements. Author-it gives no performance warranties.
12.3. Author-it does not warrant the uninterrupted use of the Software.
12.4. Author-it does not warrant that the Software is free of "bugs", errors or defects. Author-it shall not be responsible to the Licensee for costs or damages incurred as a result of any such "bugs", errors or defects. The existence of such "bugs", errors or defects shall not constitute a breach of this License or any warranty.
12.5. To avoid any loss or inconvenience caused by faults with the Software, the Licensee shall back-up its data in accordance with best IT management practice. Author-it accepts no responsibility for lost or corrupted data, regardless of the cause, or the restoration thereof.
12.6. Author-it shall not be responsible for any failure, delay or interruption in the Licensee’s use of the Software, including without limitation, system crashes, computer malfunctions, hardware or software faults, system errors, security breaches, theft, incompatibility issues, telecommunications problems, fire, flood, civil disturbance or any other event commonly referred to as an "Act of God".
12.7. Author-it accepts no liability for security breaches, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorized entry, theft, disgruntled employees and other fraudulent acts. While all reasonable efforts shall be made to ensure a secure environment for the transmission of data and other information, Author-it accepts no liability for any security breaches.
12.8. Author-it shall not be liable for any delay, damage, loss, injury, failure or breakdown that the Licensee may suffer as a consequence of any defect or deficiency in the Software, including any delay, damage, loss, injury, failure or breakdown to other programs and equipment of the Licensee.
12.9. Any statements contained on Author-it’s website, in its marketing literature or in client proposals shall not be deemed to widen Author-it’s obligations under this License.
12.10. Author-it staff, agents and representatives have no authority to make any representations, statements, warranties, conditions or agreements that conflict with this License, unless made in writing by a duly authorized officer. Any such unauthorized representations, statements, warranties, conditions or agreements shall not bind Author-it nor widen Author-it’s obligations under this License.
12.11. To the extent allowed by law, Author-it disclaims all liability, whether in contract or tort, for any loss or damage arising from (a) the Licensee’s use of the Software, (b) the suspension or interruption of such use, (c) the termination of such use or (d) Author-it’s errors or omissions in providing the Services. Such disclaimer applies to direct, indirect, special, incidental and consequential damages including loss of profit, loss of business, loss of revenue, loss of goodwill, loss of productivity, losses resulting from downtime of the Licensee’s network, domain or e-mail system, losses resulting from system crashes, losses resulting from lost or corrupted data, documents or emails or the restoration thereof, or failure to achieve anticipated benefits, cost savings or production efficiencies. Author-it shall not be liable for any delay, damage, loss, injury, failure or breakdown that the Licensee may suffer as a consequence of any defect or deficiency in the Software, including any delay, damage, loss, injury, failure or breakdown to the Licensee’s other programs and equipment.
12.12. Notwithstanding the exclusions, limitations and disclaimers in this clause 7 and elsewhere in this License, if there is any event or circumstance resulting in liability to Author-it, Author-it’s liability shall not exceed the aggregate Subscription Fees (if applicable) paid by the Licensee.
12.13. All of the above exclusions, limitations and disclaimers shall survive the termination of this License.
13. Other Services
13.1. Except as otherwise stated in a proposal furnished by Author-it and accepted by the Licensee, the Subscription Fees do not cover the cost of: (i) Installation, implementation and consulting services; (ii) Customization services; (iii) Integration services; (iv) Data importing services; (v) Networking services; (vi) Software configuration and preference setting; or (ix) Training. Upon the Licensee’s request, Author-it shall perform such other services at its standard rates and charges, plus travel and accommodation expenses.
14. Copyright
14.1. Author-it retains exclusive ownership of all copyright and other intellectual property rights in the Software and Documentation, whether in electronic or paper form. The Licensee shall not, during or at any time after the expiry or termination of this License, commit, allow, suffer or permit any act that infringes Author-it’s copyright and intellectual property rights in the Software and Documentation. The Licensee expressly agrees that it shall not, during or at any time after the expiry or termination of this agreement: (a) Translate, adapt, reverse engineer or copy the Software; (b) provide or otherwise make the Software available in any form to any person outside the Licensees organization without the express written consent of Author-it; (c) attempt to bypass, circumvent, compromise or thwart any security procedures applicable to the Software; and (d) take any action that would cause injury to Author-it’s rights in the Software or that would deprive Author-it of the Subscription Fees to which it is entitled under this Agreement, except for internal back-up and archival purposes pursuant to clause 2.3.
14.2. The Licensee acknowledges that Author-it retains exclusive ownership of any new intellectual property rights in the Software, including any improvements, ideas, comments or suggestions relating to the Author-it product received from, or suggested by, licensees under this License. The Licensee agrees that they have no right, title, or interest in such improvements, ideas, comments or suggestions relating to the Author-it product and any such improvements, ideas, comments or suggestions are automatically assigned back to Author-it.
14.3. This License is a license to use the Software. It is NOT an agreement for the sale of the Software. The Licensee’s rights to use the Software are specified in this License. The Licensee has no other rights in respect to the Software except as expressly granted to it in this License or related agreements with Author-it.
14.4. The Licensee shall indemnify Author-it against all liabilities, costs, losses, damages and expenses that Author-it may incur or suffer because of the Licensee’s breach of Author-it’s copyright or other intellectual property rights in the Software and related Documentation.
15. Confidential information
15.1. “Confidential Information” means,
15.1.1. in respect of Author-it, all information of a non-public nature in whatever form (verbal, written or electronic) concerning Author-it’s business and the Software, including all such information that Author-it may have disclosed to the Licensee or its Users prior to the Subscription Start Date. Without limiting the generality of the foregoing, the parties shall regard the following types of information as Confidential Information of Author-it: Documentation; future Updates, Upgrades and new releases; report formats, web interfaces, concepts, design ideas; instructions; inventions; know-how; fees, prices and other commercial terms in this License; manuals; marketing strategies; market research; patent information; pricing strategies; product enhancements; software design documents; software features; specifications; technical information; and trade secrets.
15.1.2. In respect to the Licensee, all information of a non-public nature in whatever form (verbal, written or electronic) concerning the Licensee’s business, employees, and foreign exchange policies, including all such information that the Licensee may have disclosed to Author-it prior to the Subscription Start Date. Without limiting the generality of the foregoing, the parties shall regard the following types of information as Confidential Information of the Licensee: Data together with information, reports and analyses compiled from the Data and specific to the Licensee.
15.1.3. Notwithstanding clause 15.1.1 and 15.1.2 above, the following information shall not constitute Confidential Information: (a) Information that is in the public domain or that subsequently enters the public domain through no fault of either party; (b) Information that either party receives in good faith from a third party provided that such third party obtained such information through lawful means and had the right to disclose such information to such party; and (c) Information that either party can demonstrate by written record it knew on the date of disclosure.
15.1.4. From time to time, the parties may receive Confidential Information from each other.
15.1.5. Each party agrees that it will keep secret all Confidential Information of the other party and not disclose the same to anyone else during or after the term of this License. A party receiving Confidential Information will not share such Confidential Information with a person outside its organisation. However, Author-it may share the Licensee’s Confidential Information with a duly authorized agent pursuant to clause 20.
15.2. Each party agrees to limit access to Confidential Information of the other party to qualified staff who understand and respect the importance for confidentiality.
15.3. Each party agrees to deliver, promptly upon termination of this Agreement, all Confidential Information in its possession belonging to the other party.
15.4. In addition to the confidentiality obligations above, each party shall fully comply with relevant privacy laws.
16. Transfer of Software
16.1. The Licensee shall not transfer the Software except with the prior written consent of Author-it. If Author-it gives its consent, it will be on the basis that: (a) the Licensee transfers all the Software and Documentation as a whole, including all prior versions and upgrades; (b) the Licensee shall not thereafter use the Software or Documentation, including prior versions and upgrades, and shall remove all copies of the Software from its computers; and (c) the transferee accepts, in writing, the terms of this License and agrees to comply with them.
16.2. The Licensee shall not be deemed to have transferred the Software pursuant to clause 16.1 in circumstances where the Licensee merges with, or its shares are acquired by, another company. However, in such event, such other company shall be deemed to have accepted the terms and conditions of this License and to have assumed the Licensee’s rights and obligations hereunder.
16.3. If the Licensee installs a new version of the Software, it shall not thereafter use, or transfer, any prior versions.
17. Right to Integrate With Other Software
17.1. Nothing in this License shall be construed to prevent the Licensee from making, or having made, developments that enable the Software to operate in conjunction with the Licensee’s and/or a third party’s products as part of an integrated system. However, the Licensee shall not have the right to license the Software as part of an integrated system without Author-it’s written consent. As a condition to giving its written consent, Author-it may require the Licensee to disclose the Author-it copyright by displaying in one or more places “Powered by Author-it” or such other words as Author-it shall prescribe. Author-it shall prescribe the exact content, size, format and placement of such words in accordance with its branding requirements. The Licensee shall not allow its customers to use the Software as part of the Licensee’s integrated system except with Author-it’s written consent and subject to the payment of such additional fees as Author-it may specify. For the avoidance of doubt, nothing in this clause shall transfer to the Licensee ownership or title in any Software so integrated and the Licensee shall have no greater rights to such Software, when so integrated, as the Licensee has under this License in respect to the Software, when not so integrated.
18. Term of License
18.1. This License commences upon installation of the Software. Installation shall be deemed to occur when the Licensee installs the first of a series of modules comprising the Software. Subject to clause 10.9, clause 1.1 and clause 18.2, this License shall continue in perpetuity.
18.2. Author-it shall have the right to terminate this License, and to disable the Software, thereby rendering the Software non-functional, in the event that the Licensee breaches any term herein or fails to pay any applicable fees, whether under this License or under any other agreement with Author-it. In the case of a breach, if such breach is capable of remedy, Author-it shall give the Licensee ten days written notice within which remedy such breach. If, in Author-it’s reasonable judgment, such breach is not capable of remedy, termination shall take effect immediately upon the Licensee’s receipt of notice by Author-it.
18.3. In the case of non-payment, Author-it shall give the Licensee five days written notice within which to make such payment. If the Licensee shall not have remedied a breach that is capable of remedy, or made such payment, whichever the case may be, by the end of such five notice period, Author-it may:
18.3.1. Suspend Licensee’s access to and use of the Software from the expiry of the 5 day notice period; and
18.3.2. Charge interest on the overdue amount at a rate equal to 5% above the base rate of the Reserve Bank of New Zealand per annum (compounding daily) from the original due date for payment,
in each case, until payment is received in full by Author-it.
18.4. Upon termination, the Licensee’s right to use the Software shall be deemed revoked. The Licensee or its representatives shall destroy the Software and Documentation or otherwise return or dispose of such material in such manner as Author-it directs.
18.5. Termination of this License is without prejudice to any rights or remedies that Author-it may have under law or equity. Any expense incurred by Author-it to rectify any default by the Licensee or in enforcing any of its rights shall be reimbursed by the Licensee on written demand from Author-it.
19. Promotion
19.1. The Licensee permits Author-it to disclose the Licensee’s name and brand in advertising and promotional material, provided such disclosure does not go beyond mentioning that the Licensee uses the Software and Author-it makes such disclosure in a dignified and responsible fashion.
20. Delegation
20.1. To provide prompt and efficient service to its Licensee, Author-it may delegate some or all of its rights and obligations under this License to third parties with the appropriate resources and experience. Such outsourced obligations may include, without limitation, the provision of hosted services, integration services, customisation services, set-up services, support, maintenance and training. Any such delegation shall not affect Author-it’s rights and obligations under this License.
20.2. Author-it may notify the Licensee in writing of such third party to whom it has delegated authority and the scope of such delegated authority. Author-it may request the Licensee deal with such third party in respect to matters falling within its scope of authority on the same basis as the Licensee would otherwise have dealt with Author-it.
20.3. Upon written notice to the Licensee, Author-it may revoke a third party’s authority to act for Author-it or Author-it may replace such third party.
21. Amendments
21.1. Any changes or modifications to this License requested by the Licensee shall be valid only if agreed by Author-it in writing.
21.2. Author-it reserves the right to make non-material amendments to the Documentation from time to time. Author-it will seek the Licensee’s consent before making an material amendments to the Documentation or substituting the Documentation for a new version thereof. The terms and conditions of such new version shall apply to all Licenses held by the Licensee when the Licensee (a) buys an additional License, or (b) installs a new release of the Software, whichever comes first.
22. Non-Waiver
22.1. If Author-it delays enforcing an obligation or remedy under this License, such delay shall not result in a waiver or variation of such obligation or remedy. No failure by Author-it to insist upon strict performance of any term or condition in this License shall constitute a waiver or variation of such term or condition. Such failure shall not prevent Author-it from claiming a default or seeking a remedy under this License.
23. Invalidity of Clause
23.1. If any provision of this License is determined to be void or unenforceable, the remainder will remain valid and enforceable according to its terms.
23.2. Certain jurisdictions have adopted laws expressly permitting reverse engineering, decoding, decompiling and other uses of the Software prohibited in clause 10. In respect to such jurisdictions, the prohibitions in clause 10 shall be deemed modified but only to the extent necessary to comply with the laws of such jurisdictions.
23.3. Some jurisdictions do not allow the exclusion of certain implied warranties or the imposition of certain warranty conditions, so the warranty exclusions and conditions in clause 11 may not apply to a Licensee in such jurisdictions. This License does not exclude any warranties or impose any conditions that may not, under applicable law, be excluded or imposed. The warranty in clause 9 gives the Licensee specific legal rights, and does not limit any other legal rights that the Licensee may have under relevant law, except where such relevant law expressly allows such limitations as contained in this License.
23.4. Certain jurisdictions limit the right of a supplier of software to disclaim liability for loss or damage arising from the use of software. In respect to such jurisdictions, the disclaimers in clause 12 shall be deemed modified but only to the extent necessary to comply with the laws of such jurisdictions.
24. Governing law
24.1. These terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this Subscription Agreement.
25. Acceptance
25.1. The Licensee acknowledges having received this License before paying the Subscription Fees. By paying the Subscription Fees and by using the Software, the Licensee shall be deemed to have accepted the terms and conditions in this License.