Author-it Cloud subscription agreement v1.4

This Agreement sets out the terms and conditions upon which Author-it will provide Author-it Cloud as Software as a Service to the Client. By accepting this Agreement you represent that you have the authority to enter into this Agreement on behalf of the Client and agree to the terms herein. If you do not agree with the terms or do not have the authority to enter into this Agreement, you may not use Author-it Cloud.

1.1

"Agreement" means this Author-it Cloud Subscription Agreement, between Author-it and the Client.

1.2

"Author-it" means Author-it Software Corporation Limited.

1.4

"Author-it Cloud" means the combined service of providing the Author-it software, hardware platform on which the Software will be hosted and associated support and maintenance services as defined in this Agreement.

1.5

“Availability” means the amount of time Author-it Cloud was scheduled to be available less any Unscheduled Downtime expressed as a percentage.

1.6

“Client” means the person or legal entity that has purchased the Author-it Cloud service.

1.7

“Correction” means replacement of corrective code or documentation, which rectifies a Discrepancy (as herein-after defined), and includes, but is not limited to, workarounds, support releases, Updates, component replacements and patches.

1.8

“Critical Fault" means an error, defect, or omission that causes the Software to be unusable by all Users.

1.9

“Data” means all electronic data created by the Client and stored, from time to time, on Author-it Cloud.

1.10

“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.

1.11

“Documentation” means Author-it’s standard documentation about the Software that Author-it makes available online to all of its clients and users. “Documentation” includes relevant user guides, quick guides, memos and bulletins with operating tips.

1.12

“Primary User” means a User who is authorized by the Client 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, support and maintenance issues.

1.13

“Scheduled Downtime” means the time Author-it Cloud is Unavailable due to scheduled maintenance or other operational activities as required to ensure the effective operation of the service.

1.14

“Software” means the specific items and modules of Author-it software described in the relevant quotation or order form provided to the Client. “Software” includes any new releases, Upgrades and Updates. “Software” also includes the Documentation.

1.15

“Subscription Fees” means Author-it’s charges to provide Author-it Cloud to the Client, as set out in Author-it’s proposal or quotation to the Client.

1.16

“Subscription Start Date” means the first date upon which the Client, and its Users will gain access to the Software.

1.17

“Unavailable” means the non-functioning of Author-it Cloud, which results in the Client’s inability to use the Software. Author-it Cloud shall not be deemed Unavailable where the non-functioning is caused by private or public network connections to Author-it Cloud that are outside the control of Author-it or the hosting provider with whom Author-it contracts, and faults or reduced functionality caused by the Client’s User error.

1.18

“Unscheduled Downtime” means the minutes during which Author-it Cloud is Unavailable when it was scheduled to be available.

1.19

“Update” means a minor software release whose primary purpose is to remove incompatibilities, fix “bugs”, enhance the stability or remedy technical faults in the Soft-ware.

1.20

“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.

1.21

"Users" means individuals who are authorized by the Client to use the Software, or a specific module of the Software, for whom subscriptions to the Software have been purchased, and who have been supplied unique user identifications and passwords. Users may include the Client’s employees, consultants, contractors and agents.

2.1

Pursuant to this Agreement, Author-it will, at its cost, provide the Author-it Cloud service.

2.2

Users will be able to log on to Author-it Cloud and make use of its functionality according to the subscription edition purchased.

2.3

For security purposes, Author-it will issue each User with a login name and password. A User may change its password at any time. The Client shall encourage each User to select a password that is not easy to copy and to maintain the secrecy of its login name and password at all times. Author-it intends the login name and password to be personal to each User and a User shall not attempt to circumvent security measures by sharing its login name and password with another staff member or person outside the organization. In any case, two Users will not be able to access the Software at the same time with the same login name and password. Author-it shall not be responsible for unauthorized access resulting from a person without access privileges using the login name and password of a User. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users, replacing former Users who no longer require ongoing use of the Software.

2.4

Author-it may contract with an independent hosting provider to provide the Author-it Cloud hardware platform. In such event, the Client shall comply with such provider’s standard terms and conditions applicable to users of its hosted servers. Author-it disclaims any liability for acts, omissions and errors of the hosting provider including without limitation, acts, omissions and errors causing loss of Data and Data security breaches. Upon notice to the Client, Author-it may replace the hosting provider with another third party hosting provider or implement other suitable arrangements to provide Author-it Cloud for the Client.

2.5

Author-it shall provide details concerning its procedures for managing Author-it Cloud to promote Data safety and security on its website.

2.6

Author-it shall use commercially reasonable efforts to make Author-it Cloud available on a 24/7 basis, except for: (a) planned maintenance periods (of which notice will be provided and will be scheduled whenever practical during weekend hours); or (b) unavailability due to circumstances beyond Author-it’s control, including without limitation, Acts of God, Acts of Government, terror attacks, Internet access failures or denial of service attacks or labor issues.

2.7

The Client shall only use the Software for its internal authoring and content management requirements.

2.8

The Client shall not store any published output on Author-it Cloud for access by staff or clients other than the authorized Users. Notwithstanding the foregoing.

2.9

Limitations are required in relation to storage capacity and database size. The hosted database may not exceed the size specified in the relevant quotation or order. The Subscription Fees are subject to change if the Client’s requirements cause it to exceed such limitations. The Subscription Fees are further subject to change if the Client requests increases in functionality beyond the subscription level purchased and specified in the relevant quotation or order.

2.10

Author-it Cloud data storage may only be used with respect to the Author-it Cloud service. Data not directly related to the use of Author-it Cloud may not be stored on Author-it Cloud.

3.1

Author-it Cloud is sold to the Client on the basis of a monthly subscription.

3.2

The Subscription Fees cover the cost of providing Author-it Cloud to the number of Users designated in the relevant quotation or order. The Subscription Fees quoted to the Client shall apply during the Initial Subscription Term.

3.3

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 Author-it Cloud, (d) reflect the actual cost of providing support and maintenance services to the Client or (e) reflect any other changes in Author-it’s pricing schedule for clients of Author-it Cloud. Author-it shall give the Client notice of any increase in the fees 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 United States dollars; (b) Subscription Fees are based on User access rights purchased and not actual usage; (c) the subscription period and the payment obligations are non-cancellable and fees paid are non-refundable; and (d) the number of User subscriptions purchased cannot be decreased during the relevant subscription term. Subscription Fees are based on monthly periods that begin on the Subscription Start Date and each monthly anniversary thereof. Subscription Fees for new Users 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.

4.1

The Client 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 Client 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 Client must pay all Subscription Fees and other fees according to the agreed payment terms. If the Client does not pay such fees, Author-it may deprive the Client 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 Client to Author-it must be made without deduction or withholding and free from set-off or counter-claim. If the Client is required by law to make any deduction or withholding from any sums paid or payable by the Client 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.

5.1

The Client shall appoint up to three Primary Users to: (a) Assist with the implementation of the Software; (b) train Users how to use the Software to its full advantage; and (c) support Users, particularly during the set up and implementation stage, but also on an on-going basis.

5.2

The Client 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 Client’s information management policies and procedures, and (c) the Client’s computer system and workstations.

6.1

The Client shall (a) be responsible for Users’ compliance with this Agreement, (b) be solely responsible for the ac-curacy, 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.

6.2

The Client shall not (a) make the Software available to anyone other than Users, (b) use Author-it Cloud to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) interfere with or disrupt the integrity or performance of Author-it Cloud or third-party data contained therein, or (d) attempt to gain unauthorized access to Author-it Cloud or related systems or networks.

6.3

The Client shall only use Author-it Cloud for its internal business purposes. If a customer of the Client uses the Client’s access to Author-it Cloud for any purpose, such use by the customer shall not be deemed an internal business purpose of the Client. The Client shall not allow such use except with the express written consent of Au-thor-it, who may grant such consent subject to appropriate commercial arrangements.

6.4

The Client may use Author-it Cloud for its internal authoring, content management and publishing needs. The Client may also use Author-it Cloud 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 Author-it Cloud. The Client shall not allow such other persons or companies to use Author-it Cloud to author, manage or publish content unless such other persons or companies obtain appropriate user subscriptions from Author-it.

7.1

Author-it sets high standards for the Availability of the Author-it Cloud service. Author-it will guarantee Availability of 99.9%. In making this guarantee, Author-it accepts responsibility for Unscheduled Downtime in excess of 45 minutes per month. Author-it shall credit the Client 5% of the monthly Subscription Fees (pro-rated where annual Subscription Fees are paid) for each additional 30 minutes of Unscheduled Downtime in excess of 45 minutes per month, up to and not exceeding 100% of one monthly Subscription Fee payment (prorated for one month where the annual Subscription Fees are paid in advance). The credit will be applied to future payments for any Author-it goods and services. The following examples illustrate the application of this clause:

7.1.1

If the Unscheduled Downtime in a month is 46 minutes, the Client will receive a 5% credit of the total Subscription Fees pro-rated for one month [i.e. one-twelfth (1/12) of the annual Subscription Fees multiplied by 5%].

7.1.2

If the Unscheduled Downtime in a month is 76 minutes, the Client will receive a 10% credit of the total Subscription Fees pro-rated for one month [i.e. one-twelfth (1/12) of the annual Subscription Fees multiplied by 10%].

7.2

Author-it will provide the Client with monitoring tools and show process and platform availability and will also include details of Scheduled Downtime and Unscheduled Downtime.

8.1

Author-it Cloud contains confidential and/or unpublished information protected by copyright, trade secret and other intellectual property laws. The Client may not disclose the Software to others, or remove or alter any copyright notices from the reports and Documentation. The Client shall use commercially reasonable efforts to protect the Software and related Documentation from unauthorized use, reproduction, distribution or publication.

8.2

Author-it retains exclusive ownership of all copyright and other intellectual property rights in the Software and the Documentation. The Client shall not, during or at any time after the expiry or termination of this Agreement, commit, suffer or permit any act that infringes Author-it’s copyright and intellectual property rights in the Software and the Documentation.

8.3

The Client shall not: (a) Translate, adapt, reverse engineer or copy the Software for any reason whatsoever; (b) provide or otherwise make Author-it Cloud available in any form to any person outside the Client’s organization without the express written consent of Author-it; (c) attempt to bypass, circumvent, compromise or thwart any security procedures applicable to Author-it Cloud; 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.

8.4

The Client shall indemnify Author-it against all liabilities, costs, losses, damages and expenses that Author-it may incur or suffer because of the Client’s breach of Author-it’s copyright and other intellectual property rights in the Software and related Documentation.

9.1

The Subscription Fees include the cost of providing remote technical support to the Primary Users as provided below.

9.2

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 Client authorizes access for that purpose.

9.3

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 Client shall comply with such procedures.

9.4

Before contacting the Help Desk, the Primary User shall refer to Author-it’s on-line Knowledge Center, which may answer the Primary User’s question.

9.5

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.

9.6

The Help Desk shall be open between the hours of 9:00 AM and 5:00 PM (US Pacific), excluding weekends and public holidays.

9.7

Author-it shall provide all technical support remotely, by means of telephone, email or the Internet. If the Client ever requests Author-it to provide on-site support, Author-it shall provide on-site support at its standard rates and charges.

9.8

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.

9.9

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.

9.10

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 endeavor 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.

10.1

The Subscription Fees include the cost of providing maintenance on Author-it Cloud as provided below.

10.2

Author-it’s Responsibilities:

Author-it agrees to:

10.2.1

Maintain the Software so that it operates substantially in conformity with applicable specifications, including but not limited to, the specifications in any Documentation;

10.2.2

Correct all critical and significant Software errors that Author-it discovers or that are brought to Author-it’s attention;

10.2.3

Promptly offer to the Client all Upgrades, Updates, modifications, refinements, Corrections, and enhancements which Author-it incorporates into Author-it Cloud. 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;

10.2.4

Use commercially reasonable efforts to achieve its published response times;

10.2.5

Provide an error and defect reporting service, thereby giving the Client 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;

10.2.6

Support and maintain Author-it Cloud; and

10.2.7

Offer the Client 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 Client at a price and terms to be agreed

10.3

The Client’s Responsibilities:

The Client shall procure its Primary Users to:

10.3.1

Report all suspected Discrepancies to the Author-it Help Desk;

10.3.2

Use commercially reasonable efforts to assist Author-it in its efforts to find Corrections to confirmed Discrepancies;

10.3.3

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;

10.3.4

Comply with Author-it’s error and defect reporting procedures; and

10.3.5

Accept Upgrades and new versions as and when released, since Author-it shall be maintaining just one version of the Software on Author-it Cloud for all of its Clients.

10.4

Author-it is not obligated to provide any hardware maintenance services, other than in respect to the provision of Author-it Cloud.

10.5

Author-it is not obligated to take action in respect to:

10.5.1

10.5.2

Discrepancies that do not significantly impair or affect the operation of the Software.

10.6

The Client is responsible for maintaining its local area network and workstations. The Client is also responsible for providing Internet access to the workstations of Users with appropriate security parameters allowing such Users to access Author-it Cloud.

10.7

Author-it may change the Software and the Documentation at any time without notice.

11.1

"Confidential Information" means:

11.1.1

In respect to 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 Client 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 Agreement; manuals; marketing strategies; market research; patent information; pricing strategies; product enhancements; software design documents; software features; specifications; technical information; and trade secrets.

11.1.2

In respect to the Client, all information of a non-public nature in whatever form (verbal, written or electronic) concerning the Client’s business, employees, and foreign exchange policies, including all such information that the Client 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 Client: Data together with information, reports and analyses compiled from the Data and specific to the Client.

11.1.3

Notwithstanding clause 11.1.1 and clause 11.1.2 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.

11.2

From time to time, the parties may receive Confidential Information from each other.

11.2.1

11,2,2

Each party agrees to limit access to Confidential Information of the other party to qualified staff who understand and respect the importance for confidentiality.

11.2.3

Each party agrees to deliver, promptly upon termination of this Agreement, all Confidential Information in its possession belonging to the other party.

11.3

For marketing purposes, Author-it shall have the right to disclose that the Client is a subscriber to Author-it Cloud.

11.4

In addition to the confidentiality obligations above, each party shall fully comply with relevant privacy laws.

12.1

Author-it acknowledges that the Data is highly confidential and shall use commercially reasonable efforts to protect the Data from unauthorized use or disclosure. Without limiting the generality of the foregoing, Author-it shall restrict access to Author-it Cloud to trusted staff or contractors who require access to perform their support and maintenance obligations and who recognize the importance of maintaining strict Data security procedures.

12.2

Author-it employs standard industry protocols to protect the Data from unauthorized access, including the latest Data encryption technology.

12.3

Author-it shall store all Data on Author-it Cloud with the latest firewalls, password protection and other security features. Author-it shall use commercially reasonable efforts to locate Author-it Cloud at a safe and secure site. Upon the Client’s request, Author-it will provide further information concerning its security procedures for protecting Author-it Cloud and the Data.

12.4

While Author-it shall use commercially reasonable efforts to ensure a safe and secure environment for the transmission and storage of Data, Author-it accepts no liability for any security breaches, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorized access, theft, disgruntled employees and other fraudulent acts.

12.5

Author-it backs up the Data on site on a daily basis and off site on a weekly basis.

12.6

Author-it disclaims any intellectual property rights in the Data. Author-it shall have no right to use the Data, or Data templates created by the Client, for any purpose except to support the Client’s use of the Software. However, nothing herein prohibits Author-it from using the Data to track Client usage and to promote system optimization.

13.1

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:

13.1.1

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.

13.1.2

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.

13.1.3

Author-it has no obligation to notify the Client of the end of the initial subscription term or any renewal term. It is the Client’s responsibility to give notice of termination if the Client does not wish this Agreement to renew automatically.

13.2

13.3

Prior to the termination of this Agreement, the Client may download copies of all relevant Data and reports. Upon the Client’s request, and at the Client’s cost, Author-it shall provide reasonable assistance to enable the Client to transfer its Data (including all Data transaction history) from Author-it Cloud to either the Client’s server or that of the Client’s designated third party service provider.

13.4

Upon the termination of this Agreement: (a) The Client shall pay Subscription Fees and other charges to the date of termination; (b) the Client shall stop using Author-it Cloud and the Client authorizes Author-it to withdraw all User access privileges to Author-it Cloud; (c) Each party shall return Confidential Information, materials and documentation belonging to the other party; (d) The Client shall return any intellectual property and Documentation belonging to Author-it; and (e) Author-it shall remove the Data from Author-it Cloud and dispose of such Data within 30 days, although Author-it shall have the right, but not the obligation, to retain a copy of such Data for archival purposes.

13.5

The termination of this Agreement shall not prevent either party from pursuing a cause of action that accrued before the date of termination.

13.6

Termination of this Agreement shall not affect any clauses therein that, by their nature, the parties intended to survive termination including, without limitation: Clause 4 (Payment Terms); Clause 11 (Confidential Information); clause 13 (Term); clause 16 (Mutual Indemnification); clause 17 (Disclaimers); clause 18 (Limitation of Liability); clause 21 (Non-Waiver); and clause 28 (Governing Law).

14.1

To provide prompt and efficient service to its Clients, Author-it may delegate some or all of its rights and obligations under this Agreement to third parties with the appropriate resources and experience. Such outsourced obligations may include, without limitation, the provision of hosted services, integration services, customization services, set-up services, support, maintenance and training. Any such delegation shall not affect the Client’s rights and obligations under this Agreement.

14.2

Author-it may notify the Client in writing of such third party to whom it has delegated authority and the scope of such delegated authority. Author-it may request the Client to deal with such third party in respect to matters falling within its scope of authority on the same basis as the Client would otherwise have dealt with Author-it.

14.3

Upon written notice to the Client, Author-it may revoke a third party’s authority to act for Author-it or Author-it may replace such third party.

15.1

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 Subscription Start Date.

15.2

If the Software fails to operate in accordance with this warranty, Author-it shall either modify the Software so that it does operate in accordance with this warranty or refund the Subscription Fees paid by the Client, at Author-it’s sole discretion.

15.3

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.

16.1

Author-it shall defend the Client against any claim, demand, suit, or proceeding ("Claim") made or brought against the Client by a third party alleging that the use of the Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify the Client for any damages finally awarded against, and for reasonable attorney’s fees incurred by, the Client in connection with any such Claim; provided, that the Client (a) promptly gives Author-it written notice of the Claim; (b) gives Author-it sole control of the defense and settlement of the Claim (provided that Author-it may not settle any Claim unless the settlement unconditionally releases the Client of all liability); and (c) provides to Author-it all reasonable assistance, at Author-it’s expense.

16.2

The Client shall defend Author-it against any Claim made or brought against Author-it by a third party arising from the Client’s breach of this Agreement, including any Claim alleging that the Data infringes or misappropriates the intellectual property rights or violates the privacy rights of a third party or otherwise violates applicable law, and shall indemnify Author-it for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Author-it in connection with any such Claim; provided, that Author-it (a) promptly gives the Client written notice of the Claim; (b) gives the Client sole control of the defense and settlement of the Claim (provided that the Client may not settle any Claim unless the settlement unconditionally release Author-it of all liability); and (c) provides to the Client all reasonable assistance, at the Client’s expense.

16.3

This clause 16 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this clause.

17.1

Except as expressly provided herein, neither party makes any warranties of any kind, whether expressed, implied, statutory or otherwise, and each party specifically disclaims all implied warranties including any warranties of fitness for a particular purpose, to the maximum extent permitted by law.

17.2

All of the above exclusions, limitations and disclaimers shall survive the termination of this Agreement.

18.1

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY THE CLIENT HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY THE CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT THE CLIENT’S PAYMENT OBLIGATIONS UNDER CLAUSE (PAYMENT TERMS).

18.2

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

19.1

Except as expressly stated in this Agreement, the Subscription Fees do not cover the cost of: (a) Installation, implementation and consulting services; (b) Customization services; (c) Integration services; (d) Data importing services; (e) Networking services; (f) Software configuration and preference setting; or (g) Training. Upon the Client’s request, Author-it shall perform such other services at its standard rates and charges, plus travel and accommodation expenses.

20.1

Author-it shall not be liable for any failure or delay in performing this Agreement resulting from circumstances beyond its reasonable control. Such circumstances include, without limitation: Unavoidable delays in providing support and maintenance services; delays in the delivery of Upgrades, Updates, Corrections and new releases; programming delays; malfunctions of Author-it Cloud; default by independent contractors; strikes and labor unrest; war; terrorism; government intervention; fire; flood; accident; natural disaster; or any other event commonly referred to as an "Act of God".

20.2

If Author-it invokes force majeure, it shall do all things within its power to end the circumstances causing the force majeure and to mitigate any losses that the Client may suffer as a consequence thereof. However, Author-it shall not be liable for any such losses.

21.1

No failure by either party to insist upon strict performance of this Agreement or any delay in exercising any of its rights or remedies, shall constitute a waiver or variation of this Agreement or a waiver of any such right or remedy.

22.1

The parties have entered into this Agreement believing in good faith that it fully complies with all applicable laws. Each clause in this Agreement is severable in whole or in part. If any clause is determined to be illegal or unenforceable for any reason, the parties shall modify such clause, but only to the extent necessary to make it legal and enforceable. If modification is not possible without materially altering the intent of the clause, the parties shall sever such clause from this Agreement and renegotiate in good faith such other means to reflect their original intent. Notwithstanding such severance, the parties shall enforce the balance of this Agreement as if such severed clause was never a part thereof.

22.2

Where there is any conflict between this Agreement and any mandatory provision of a statute, such statute shall prevail.

22.3

Where there is any conflict between this Agreement and any provision in a statute, which expressly states that it is subject to any contractual provision to the contrary, or which may be altered or overridden by a contract, this Agreement shall prevail.

23.1

This Agreement represents the entire agreement concerning the conditions upon which the Client may use the Software. As such, it supersedes all previous agreements or understandings, whether verbal or written, pertaining to the same subject matter, including without limitation, any proposals that Author-it may have furnished to the Client.

23.2

This Agreement overrides any other terms and conditions in conflict therewith, including those on the Customer’s purchase order, if any.

23.3

Author-it’s agents and representatives have no authority to make any representations, statements, warranties, conditions or agreements that conflict with this Agreement. Any such unauthorized representations, statements, warranties, conditions or agreements shall not bind Author-it nor shall they form a part of an Agreement, unless the parties so agree in writing.

24.1

Certain clauses in this Agreement may prohibit a party from doing a specific act or thing. In such case, such party shall not aid, abet or encourage a third party to do such act or thing that such party could not do itself.

24.2

Where the context so requires, an obligation or right of the Client shall mean an obligation or right of the relevant subsidiary or affiliate of the Client. If the Client is entering into this Agreement on behalf of any affiliates or subsidiaries, the Client shall procure such affiliates and subsidiaries to use the Software in accordance with this Agreement. The Client accepts liability for the acts or omissions of its affiliates and subsidiaries in breach of this Agreement.

24.3

Author-it is not committing to provide any other products and services except for such products and services as are expressly stated in this Agreement, or any collateral agreement signed by the parties. If in the future, Author-it provides any other products and services, it shall do so by separate quotation and always with the Client’s prior agreement.

24.4

Wherever this Agreement imposes an obligation or confers a right upon Author-it, a person to whom Author-it delegates authority pursuant to clause 14.1 may exercise such right or perform such obligation for Author-it.

25.1

The Client shall comply with all applicable laws and regulations in the countries where the Client intends to use the Software.

26.1

Any document referred to in this Agreement shall be deemed incorporated herein by such reference.

26.2

A reference to a document shall be deemed a reference to the latest version of such document from time to time in effect.

26.3

Any change in the name of a document incorporated by reference shall not affect its enforceability provided it is clear which new document was intended to supersede and replace the document expressly mentioned herein

27.1

A party may deliver any notice required by this Agreement by hand. If a party delivers any notice by a recognized international air courier (e.g. FedEx, DHL, UPS), such delivery shall be deemed equivalent to delivery by hand. A party may send a notice to the other party at the address referred to at the start of this Agreement or such other address as the other party may designate in writing. A party may send a notice by first class airmail post, facsimile transmission, e-mail or comparable means of communication.

27.2

The date of receipt of any notice delivered by hand shall be the date upon which such notice was hand delivered to the recipient. The date of receipt of any notice given by airmail post shall be the 7th day after the sender mailed the notice. Proof that the sender addressed the envelope properly, paid the correct postage and did not receive the notice back shall be sufficient evidence that the sender gave notice. The date of receipt of any notice given by facsimile transmission, e-mail or comparable means of communication shall be the date of transmission of such notice, provided: (a) the recipient acknowledges receipt; or (b) the giver of such notice sends a confirming copy by air mail post within 24 hours after transmission.

28.1

New Zealand law shall govern the interpretation, validity and performance of the Agreement. The parties submit to the jurisdiction of New Zealand courts in the event of a dispute.