Software license & maintenance agreement v2.3

1.1

"Author-it" means Author-it Software Corporation Limited and its affiliates.

1.2

"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.

1.3

"License" means this Software License and Maintenance Agreement (including Annexure A where applicable) between Author-it and the Licensee.

1.4

"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.

1.5

"License Fees" means the fees payable by the Licensee for the right to use the Software.

1.6

"Maintenance Fees" shall have the same meaning as in the Software Maintenance Terms and Conditions.

1.7

"Maintenance Services" shall have the same meaning as in the Software Maintenance Terms and Conditions.

1.8

"Server" means any computer capable of running the Software and providing access to the Users.

1.9

"Software" means the specific items and modules of Author-it software for which the Licensee has paid the License Fees. "Software" includes any new releases, upgrades and updates for which the Licensee has paid the applicable Maintenance Fees. "Software" includes the Documentation.

1.10

"Software Maintenance Terms and Conditions" means the Software Maintenance Terms and Conditions attached hereto as Annexure A.

1.11

"Third Party Software" means any software in respect to which Author-it is not the copyright holder.

1.12

"Users" means the total number of persons in respect to which the Licensee has paid License Fees, thereby allowing such persons to use the Software, or a specific module of the Software.

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 install and use only those modules of the Software that the Licensee shall have licensed and paid License 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 License 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 License 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 License 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 License 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.

3.1

To use the Software, the Licensee must pay all License Fees and other fees according to the agreed payment terms. If the Licensee does not pay such fees, Author-it shall revoke this License in which case the Licensee shall forthwith stop using the Software. Author-it shall also have the right to disable the Software in such circumstance, thereby rendering the Software non-functional.

3.2

All fees quoted in any proposal or on the Author-it website are exclusive of applicable taxes.

3.3

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.

4.1

This License extends to the Documentation, whether in electronic or print format.

4.2

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.

4.3

The Licensee shall not copy, modify or make use of the Documentation except to use the Software in the manner permitted in this License.

Subject to clause 17.2:

5.1

The Licensee shall not without Author-it’s 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 11.1; and (vi) attempt to bypass or circumvent any security procedures applicable to the Software.

5.2

This License is personal to the Licensee. The Licensee shall only use the Software for its internal business purposes. 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.

5.3

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 11 (Transfer of Software).

5.4

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.

5.5

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.

5.6

The Software contains confidential, unpublished information protected by copyright, trade secret and other intellectual property laws. The Licensee shall not disclose the Software to others, or remove or alter any copyright notices from the media or Documentation. The Licensee shall prevent any unauthorized use, copying, distribution, publication or disclosure of the Software.

5.7

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.

5.8

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.

5.9

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.

5.10

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.

5.11

Where the Software is licensed pursuant to a Software Rental Agreement, the Licensee shall only use the Software during the rental term specified in such Software Rental Agreement. At the end of such rental term, 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.

5.12

The Licensee’s obligations in this clause 5 shall survive the termination of this License.

Subject to clause 17.3:

6.1

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.

6.2

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 License Fees paid by the Licensee, at Author-it’s sole discretion.

6.3

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.

Subject to clause 17.4:

7.1

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.

7.2

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.

7.3

Author-it does not warrant the uninterrupted use of the Software.

7.4

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.

7.5

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.

7.6

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".

7.7

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.

7.8

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.

7.9

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.

7.10

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.

7.11

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 Maintenance 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.

7.12

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 License Fees and Maintenance Fees (if applicable) paid by the Licensee.

7.13

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

8.1

If the Licensee has paid Maintenance Fees, Author-it shall provide Maintenance Services for the relevant period covered by such Maintenance Fees in accordance with the Software Maintenance Terms and Conditions attached. Otherwise, Author-it is under no obligation to provide Maintenance Services.

9.1

Except as otherwise stated in a proposal furnished by Author-it and accepted by the Licensee, the License 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; (vii) Technical support and trouble shooting; (viii) Maintenance Services; (ix) Training; (x) Software "fixes" and updates; and (xi) Software upgrades. Upon the Licensee’s request, Author-it shall perform such other services at its standard rates and charges, plus travel and accommodation expenses.

10.1

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 copy the Software except for internal back-up and archival purposes pursuant to clause 2.3.

10.2

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.

11.1

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.

11.2

The Licensee shall not be deemed to have transferred the Software pursuant to clause 11.1 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.

11.3

If the Licensee installs a new version of the Software, it shall not thereafter use, or transfer, any prior versions.

12.1

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 license 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.

13.1

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 5.10, clause 5.11 and clause 13.2, this License shall continue in perpetuity.

13.2

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. In the case of non-payment, Author-it shall give the Licensee ten 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 ten day notice period, this License shall be deemed terminated and Author-it shall have the right to disable the Software, thereby rendering the Software non-functional. Author-it shall have no liability to the Licensee for terminating the License and disabling the Software pursuant to this clause.

13.3

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.

13.4

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.

14.1

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. Author-it shall seek the Licensee’s consent before using the Licensee’s name and brand in any other manner for advertising and promotional purposes.

15.1

Any changes or modifications to this License requested by the Licensee shall be valid only if agreed by Author-it in writing.

15.2

Author-it reserves the right to amend this License from time to time and to substitute 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, (b) installs a new release of the Software or (c) buys Maintenance Services, whichever comes first.

16.1

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.

17.1

If any provision of this License is determined to be void or unenforceable, the remainder will remain valid and enforceable according to its terms.

17.2

Certain jurisdictions have adopted laws expressly permitting reverse engineering, decoding, decompiling and other uses of the Software prohibited in clause 5. In respect to such jurisdictions, the prohibitions in clause 5 shall be deemed modified but only to the extent necessary to comply with the laws of such jurisdictions.

17.3

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 6 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 6 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.

17.4

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 7 shall be deemed modified but only to the extent necessary to comply with the laws of such jurisdictions.

18.1

This Agreement shall be governed by the laws of New Zealand. The parties submit to the jurisdiction of New Zealand courts.

19.1

The Licensee acknowledges having received this License before paying the License Fees. By paying the License Fees and by using the Software, the Licensee shall be deemed to have accepted the terms and conditions in this License.