THE PARTIES AGREE AS FOLLOWS
In this Agreement, unless the context indicates the contrary:
Agreement means this agreement and any schedules, appendixes or annexures to it, as may be amended by the parties in writing from time to time.
Business Day means Monday to Friday excluding public holidays.
Confidential Information means all information, data, documentation, computer facilities (including software or technology embedded in the software) and trade secrets, (including information relating to financial position, technical matters, internal management, policies and strategies) and any other material whether owned or used by or licensed to the disclosing party obtained from the disclosing party in connection with this Agreement:
Develop means develop, create, add, enhance, modify, reduce, adapt or prepare.
Documentation means the operational and user reference manuals which explain the operation and use of the Licensed Software, and all instruction manuals, tutorial materials and ancillary folders, binders and other goods used in connection with the Licensed Software and include any updates and additions to these.
GST means the tax imposed under the GST Law.
GST Law means Goods and Services Tax Act 1985 (NZ) and any amendments thereof.
Insolvency Event in relation to a party (insolvent party) means:
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Licence means the non-exclusive, assignable licence of the Licensed Software pursuant to this Agreement.
Licence Fee means the fee payable by the Client detailed below (as may be amended from time to time by BWARE Limited):
Licensed Software means the Safety Manager / BWARE software owned by BWARE Limited and delivered to the Client by Bware Limited pursuant to this Agreement.
New Release means a new version of the Licensed Software provided to the Client which has been provided to the Client pursuant to the terms of the Agreement and includes any Updates as that term is defined under the same Agreement.
Relevant Law means any Law and any requirements, directions, guidelines, practice notes or policy statements of any governmental agency or regulator, and any industry standards or codes of conduct, in each case, with which it is mandatory or customary for businesses in the financial services industry to comply with or apply.
Tax Invoice has the meaning it has in the GST Law.
Taxable Supplies has the meaning it has in the GST Law.
Term means the periods for which the Licensed Software is provided to the Client pursuant to this Agreement.
Third Party means a person, firm or company who is not a party to the Agreement or who is not a related body corporate of a party to the Agreement.
Third Party Software means computer programs not produced by BWARE Limited which Bware Limited is not authorised to sub-license to the Client or which require terms and conditions other than those applicable to Bware Limited’s own software but which Bware Limited has chosen to incorporate or integrate in the Licensed Software.
In the Agreement unless the contrary intention appears:
The Licence granted by BWARE Limited to the Licensee shall permit the Licensee to:
Subject to the rights of third parties:
BWARE will ensure that the Documentation:
The Client must not, without the prior written consent of BWARE Limited, develop the Licensed Software or its source code or make the Licensed Software’s source code available to third parties for the purpose of developing the Licensed Software. Bware Limited will do all development and modifications to the Licensed Software’s source code at agreed development rates. Such development rates will not be more than the average market rate per hour for system development.
The Client acknowledges that BWARE Limited is the owner of the Intellectual Property Rights in the Licensed Software (other than Third Party Software or unless agreed otherwise under a purchase order) and related Documentation.
BWARE Limited warrants that:
The Client agrees to provide relevant information and allow BWARE Limited’s representatives and support personnel reasonable on-site and/or off-site access to the Licensed Software (subject to Bware Limited’s compliance with the Client’s security policies), to perform any maintenance support services. Bware Limited will use its best endeavours to ensure that such access causes as little disruption as possible to the business and usual activities of the Client.
For any Update or New Release BWARE Limited will provide the Licensee with a report which details the remedy of Defects and Enhancement provided. If the Client encounters any problems with any Update or New Release, the Client must provide Bware Limited with a report providing the steps to reproduce the problem. The report may be given via email.
Except as expressly provided in this Agreement, BWARE Limited makes no express warranties or representations. To the extent permitted by law, Bware Limited excludes all implied warranties that would otherwise be implied by law into this Agreement.
The Client and BWARE Limited accepts, acknowledges and agrees that prior to the Agreement Date and for the duration of this Agreement, they have and will become aware of and have access to Confidential Information of a highly sensitive nature and which is regarded as having a commercial value and being the Intellectual Property of both parties. Accordingly, the parties agree to ensure that they, and ensure that their employees, contracts and agents, treat the Confidential Material as sensitive and not disclose it, in any manner possible to any third parties.
The party who receives the Confidential Information will not without the written consent of the other:
Neither BWARE Limited nor the Client will be in breach of this clause 8 where the:
These obligations of confidentiality survive the termination of this Agreement.
Each party indemnifies the other party and its related body corporates against all liability, loss, damage, costs or expenses (including legal costs and expenses) which are incurred or suffered by any of them arising out of a breach by the first mentioned party of this clause 8
BWARE Limited will use its best endeavours to maintain effective security measures to safeguard the Client’s Confidential Information from unauthorised access, use, copying or disclosure, including by requiring its personnel to execute confidentiality undertakings, and agrees, at the reasonable request of the Client, to inform the Client of the details of those measures and provide copies of those undertakings.
BWARE Limited will provide a Tax Invoice to the Client in accordance with its invoicing terms.
Where an amount is genuinely in dispute, the party disputing the amount must give notice of its dispute in writing to the other party within 14 days of the receipt of the Tax Invoice by the Client or notification of non-payment of an amount to BWARE Limited. In the event that the Client disputes an amount it may withhold the amount in dispute until the resolution of the dispute in accordance with the dispute resolution procedures. The parties must otherwise continue to comply with their obligations under this Agreement until the dispute is resolved.
All prices, fees, and other charges are inclusive of any and all taxes and duties excluding GST.
The parties acknowledge that some supplies made under or in connection with this Agreement may be Taxable Supplies and others may not. To the extent that any supply made under or in connection with the Agreement or an Agreement is a Taxable Supply, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply (except to the extent that the consideration is expressed to be inclusive of GST). The additional consideration is payable at the same time and in the same manner as the consideration to which it relates.
If either party is entitled under the Agreement or an Agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with the Agreement or an Agreement, the reimbursement or indemnity will be net of any input tax credits which may be claimed by the party being reimbursed or indemnified in relation to that expense or outgoing.
The party that makes the supply must provide to the recipient of that supply a Tax Invoice as necessary to satisfy the relevant legislation.
This indemnification section survives the expiration of this Agreement, and applies to claims arising both before and after the Agreement term.
This Agreement may be terminated at any time during the term and upon such written notice as the parties agree to.
Neither party will be liable for its failure or delay in performance of its obligations under this Agreement due to strikes (other than those of its own personnel), riots, civil disturbances, wars, terrorist acts, revolution, epidemics, storms, fire, flood, explosion, earthquakes, nuclear disaster, actions or inaction of governmental authorities or other causes beyond its reasonable control and not due to its default, and a reasonable extension of the time to perform will be extended in such circumstances.
If a delay or failure to perform obligations is caused or anticipated due to Force Majeure, each party will use its best measures to minimise delay. If this delay exceeds 90 days, the party not suffering from the event of Force Majeure may immediately terminate this Agreement on providing notice to the other party.
This Agreement and each Agreement may not be assigned or novated by the Client or the Client in whole or in part without the prior written consent of BWARE Limited, such consent not to be unreasonably withheld, or delayed or involve the payment of any fee.
BWARE Limited may assign or novate in whole or in part its rights and obligations under this Agreement.
The Agreement and each Agreement is entered into in consideration of the parties incurring obligations and giving rights under those agreements and for other valuable consideration.
All notices and other communications by or to the Parties to this Agreement shall be in writing and signed by a director, secretary or other duly authorised officer or the solicitor of the party giving such notice or communication.
Notices and communications may be delivered by hand or sent by post or facsimile to the party to which it is addressed at the head of this Agreement or at such other address as the addressee may specify for such purpose to the other parties by notice in writing.
Such notices and communications shall be deemed to be duly given, served or made:
The Agreement and each Agreement constitute the whole agreement between the parties with respect to its subject matter and supersede all previous agreements, understandings and negotiations on that subject matter.
This Agreement shall be governed by and construed in accordance with the laws of New Zealand. The parties irrevocably submit to and accept, generally and unconditionally, the nonexclusive jurisdiction of any of the Courts of New Zealand with respect to any legal action or proceedings which may be brought at any time relating in any way to this Agreement.
BWARE Limited acknowledges and agrees that it is an independent contractor, and not an agent of the Licensee, and that Bware Limited has no authority to bind the Licensee by Agreement or otherwise.
A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.
A provision of or a right created under the Agreement and each Agreement may not be:
The indemnities in the Agreement and each Agreement are continuing obligations, independent from the other obligations of the parties and continue after the Agreement and each Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity.
Each party will provide such further documents or instruments required by the other party as may be reasonably necessary or desirable to give effect to this Agreement and to carry out its provisions. Whenever this Agreement requires or contemplates any action, consent or approval, such party will act reasonably and in good faith and will not unreasonably withhold or delay such action, consent or approval.
Clauses of this Agreement which are by their nature intended to survive termination will survive any termination for any reason, of this Agreement.