Agreement Terms

TERMS & CONDITIONS

BACKGROUND

BWARE Limited NZ Company No. 1323025 of 41 Dundonald St, Dunedin 9103, New Zealand owns the Licensed Software.
The Client has requested and BWARE Limited has agreed to grant the Client a non-exclusive licence to use the Licensed Software and its associated documentation, subject to the terms and conditions set out in this Agreement.

THE PARTIES AGREE AS FOLLOWS

. DEFINITIONS AND INTERPRETATION
1. Definitions
  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:
  1. about that party or its Related Bodies Corporate, customers, employees or contractors or its business;
  2. regarding the terms of this Agreement, or the commercial arrangements between the parties;
  3. which is by its nature confidential or which is designated as confidential by that party; or
  4. which any of the parties knows, or ought to know, is confidential,
  5. whether that information was obtained, before, on or after the date of this Agreement.
  Defect means:
  1. failure of the Licensed Software to comply with any related Documentation; and/or
  2. any fault, failure, degradation, or error in the Licensed Software.
  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:
  1. the insolvent party ceases or takes steps to cease to conduct its business in the normal manner;
  2. the insolvent party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
  3. the insolvent party is unable to pay its debts when they are due or is deemed under the Companies Act 1993 (NZ) to be insolvent;
  4. a liquidator or provisional liquidator is appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party; or
  5. an application or order is made or a resolution is passed of the winding up of the insolvent party.
  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):
  1. for the Licensed Software, is based on the features required by the client starting from $569.25 + GST per annum for the base version.
  2. and if the Client is an initial user, the Licence Fee will be outlined at time of setup based on level of access required, with $115.00 plus GST per annum for 5 additional user licences.
  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.
2. Interpretation
  In the Agreement unless the contrary intention appears:
  1. the singular includes the plural and vice versa;
  2. a reference to the Agreement or another instrument includes any variation or replacement of them;
  3. a reference to a clause number is a reference to a clause in that part of this Agreement unless expressly stated to be a clause in another part of the Agreement;
  4. the word “person” includes a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency;
  5. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re-enactments and/or replacements of any of them;
  6. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
  7. a reference to a month is to a calendar month;
  8. a reference to a day is to a calendar day;
  9. a reference to a thing (including any amount) is a reference to the whole and each part;
  10. the verb “include” (in all its parts, tenses and variants) is not used as, nor is it to be interpreted as, a word of limitation;
  11. the words “including”, “for example” or “such as” do not limit the meaning of the words to which the example relates or examples of a similar kind;
  12. New Zealand dollars, dollars, NZ$, or $ is a reference to the lawful currency of New Zealand; and
  13. headings are inserted for convenience and do not affect the interpretation of the Agreement.
ACCEPTANCE OF TERMS
1. This Agreement governs the Client’s use of the Licensed Software and Documentation and forms a binding contractual agreement between the Client and BWARE Limited NZ Company No. 1323025 of 41 Dundonald St Dunedin 9013, New Zealand
2. By completing applying for a licence and payment of the Licence Fee, the Client acknowledges and agrees that they have read and understood the terms and conditions of this Agreement, and they agree to be bound by them.
3. If the Client provides or otherwise makes the Licensed Software available in whole or in part to any person (the Invitee), the Client undertakes to ensure that all Invitees comply with the terms and conditions of this Agreement. The Client acknowledges and agrees that they shall remain responsible and liable for the acts or omissions of all Invitees to the extent as if the Client carried out such acts and omissions personally.
SCOPE
1. This Agreement provides the framework for management of the business to business relationship between the Client and BWARE Limited relating to the licensing of the Licensed Software.
2. This Agreement supersedes and replaces any prior agreements whether written, oral or implied, entered into by the parties relating to the licensing of the Licensed Software.
SECURITY OF INFORMATION AND PASSWORDS
1. By applying for a licence, the Client agrees that all information provided during the application process is true and accurate and the Client will update this information in order to keep it current, complete and accurate.
2. During the registration process, the Client will be asked to select a password for the Client account. The Client agrees to keep their password to their Client account confidential at all times and must not disclose it to any third parties. The Client agrees to be fully responsible for activities that relate to their Client account or their password. If the Client has any reason to believe that their password has been obtained by someone else without their consent, the Client must inform BWARE Limited immediately to disable the Client account.
LICENSED SOFTWARE
1. Permitted Use
  The Licence granted by BWARE Limited to the Licensee shall permit the Licensee to:
  1. install the Licensed Software to enable the execution and processing of the Licensed Software;
  2. use the Licensed Software in accordance with the terms of this Agreement;
  3. permit any authorised user to use the Licensed Software in accordance with the terms of this Agreement for the purposes of the Licensee conducting its business;
  4. access the Licensed Software by remote access.
2. Client Data
  1. The Client acknowledges and agrees that BWARE Limited does not provide data, including but not limited to relevant work health and safety legislation, for use with the Licensed Software. The Client is responsible for adding relevant work health and safety legislation for use with the Licensed Software.
  2. BWARE Limited will host all of the Client’s data entered into the Licensed Software on Bware Limited’s cloud server. While the Bware Limited cloud server is regularly backed up, Bware Limited is not responsible for any data the Client deletes during the term of this Agreement. The Client acknowledges and agrees that all deletions are not reversible, and it is responsible for any deletions made through their account.
3. Documentation
  Subject to the rights of third parties:
  1. BWARE Limited will provide the Documentation relating to the Licensed Software to the Client at no additional charge.
  2. The Client may make as many copies of the Documentation as are reasonable for its business purposes and for those of the authorised users of the Licensed Software.
4. Nature of Documentation
  BWARE will ensure that the Documentation:
  1. is clear, concise, and comprehensive and provides sufficient information to enable the Client, its employees, agents, or consultants with appropriate training and skills to use the Licensed Software;
  2. is current and up-to-date;
  3. is in the English language; and
  4. is reasonable acceptable to the Client in terms of its presentation, accuracy, and scope.
5. Development
  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.
OWNERSHIP OF INTELELCTUAL PROPERTY
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.
WARRANTIES
1. General
  BWARE Limited warrants that:
  1. it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement; and
  2. at the date of the Agreement and to the best of its knowledge, no fact or circumstance exists (and BWARE Limited is not aware of any potential fact or circumstance) that may materially affect its capacity to perform its obligations under the Agreement.
2. Access
  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.
3. Defects reports
  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.
4. No implied warranties
  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.
CONFIDENTIALITY
1. Confidential Information
  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.
2. Use of Confidential Information
  The party who receives the Confidential Information will not without the written consent of the other:
  1. use it other than in performing its obligations or exercising its rights under this Agreement; or
  2. disclose it to any person except its employees, legal advisers, auditors, approved sub-contractors and in the case of the Client, contractors and consultants, and then only to those who need to know that information for the purpose of performing obligations or exercising its rights under this Agreement.
3. Exceptions
  Neither BWARE Limited nor the Client will be in breach of this clause 8 where the:
  1. disclosure is required by law; or
  2. Confidential Information is in the public domain through no fault or actions of the recipient, its employees, contractors, or agents; or
  3. Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.
4. Survival
  These obligations of confidentiality survive the termination of this Agreement.
5. Indemnity
  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
6. Security measures
  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.
PRIVACY
1. BWARE Limited collects information from and about the Client, including but not limited to the Client’s name and contact details, upon applying for the licence. Such information is provided by the Client voluntarily. So far as reasonably possible, the use and payment for any services offered by Bware Limited will be de-identified for the Client’s security.
2. BWARE Limited will store Confidential Information on its secure servers in data centres of its choice. Any Confidential Information the Client will provide to Bware Limited will only be used by Bware Limited for its statistical purposes. It will never be supplied to anyone without first obtaining the Client’s consent, unless Bware Limited are obliged or permitted by law to disclose it.
3. The Client warrants that they give their permission for BWARE Limited to access and use their Confidential Information as described in this Agreement and that the Client is aware that Bware Limited relies on that warrant.
FEES
1. BWARE Limited agrees to licence the Licensed Software in consideration of the Client’s payment of the Licence Fee.
2. All payments are handled by a secure, PCI DSS compliant, third party using SSL, Bware Limited does not store credit card details
3. BWARE Limited may provide the Client with the ability to pay the Licence Fee by credit card. All Licence Fees paid through a third party payment services provider are subject to that third party’s terms of service, and Bware Limited will not be responsible for anything contained therein. The Client is responsible for payment of any taxes associated with payment of the Licence Fee.
REFUNDS
1. All Licence Fees paid are non-refundable, subject to clause 11.2.
2. In the event of an overpayment for Licence Fees, BWARE Limited will refund the amount overpaid back to the Client by crediting it to the Client’s nominated credit card account.
PAYMENT TERMS
1. Payment due date
  1. All Licence Fees properly invoiced will be paid by the Client by the 20th calendar day of the month in which the invoice was issued. However, the Client will use reasonable endeavours to pay the invoice within 30 days of receipt. The Client will not be liable to pay any fees or charges until such time as it has received a Tax Invoice.
  2. The Licence Fee is payable in advance and are renewable annually.
2. Invoice
  BWARE Limited will provide a Tax Invoice to the Client in accordance with its invoicing terms.
3. Disputes
  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.
GST
1. GST exclusive
  All prices, fees, and other charges are inclusive of any and all taxes and duties excluding GST.
2. Taxable Supplies
  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.
3. Costs and expenses
  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.
4. Tax Invoice
  The party that makes the supply must provide to the recipient of that supply a Tax Invoice as necessary to satisfy the relevant legislation.
LIMITATION OF LIABILITY AND INDEMNITY
1. The Client agrees that BWARE Limited shall not be liable for any damages suffered as a result of using the Licensed Software. In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.
2. BWARE Limited does not endorse any of the data that the Client choose to add to the Licensed Software, and expressly disclaim any and all liability in connection with them. Bware Limited does not pre-screen or monitor the data that the Client adds to the Licensed Software. In no event shall Bware Limited be liable for any claims by a third party including, but not limited, to any misleading statements made and/or incorporated into any data the Client adds to the Licensed Software. It is the Client’s sole responsibility to ensure the accuracy of the data inputted into the Licensed Software.
3. The Client has sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the Licensed Software and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Licensed Software.
4. Without limiting the foregoing, in no event will BWARE Limited’s aggregate liability to the Client exceed, in total, the amounts paid by the Client to Bware Limited.
5. As a condition of the Client’s access to and use of the Licensed Software, the Client agrees to indemnify BWARE Limited and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:
  1. the Client’s access to and use of the Licensed Software; or
  2. the Client’s breach of this Agreement and any applicable law or the rights of another person or party.
  This indemnification section survives the expiration of this Agreement, and applies to claims arising both before and after the Agreement term.
TERMINATION
1. Rights to terminate for insolvency and breach
  1. BWARE Limited may terminate this Agreement immediately by written notice to the other party if:
    1. the Client becomes subject to an Insolvency Event;
    2. the Client commits a material breach of this Agreement and that breach is not rectified within 30 days of written notification thereof.
  2. For the purposes of this clause, a “material breach” includes:
    1. a breach which has a material adverse effect on the profit, revenue, services, or business operations of a party; or
    2. where a party regularly or habitually commits breaches of this Agreement or commits a number of breaches, whether or not they are remedied, which collectively have a material adverse effect on the profit, revenue, services or operations of a party.
  3. No termination costs or any other fees or amounts are payable by either party in respect of the termination if a party terminates this Agreement under this clause. However, this clause does not affect the Client’s liability for Licence Fees payable under this Agreement that have accrued as at the date of the termination.
2. Mutual Termination
  This Agreement may be terminated at any time during the term and upon such written notice as the parties agree to.
FORCE MAJEURE
1. Event of Force Majeure
  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.
2. Right to terminate
  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.
ASSIGNMENT
1. Assignment by the Client
  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.
2. Assignment by BWARE Limited
  BWARE Limited may assign or novate in whole or in part its rights and obligations under this Agreement.
3. Consideration
  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.
NOTICES
1. Form of Notice
  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.
2. Addresses for Notices
  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.
3. Time of Service
  Such notices and communications shall be deemed to be duly given, served or made:
  1. (in the case of delivery in person) when delivered;
  2. (in the case of a telex or facsimile) on receipt by the sender of the answerback code or number of the recipient at the end of transmission (provided that if the time of despatch is after 4.00 p.m. (local time) on a day on which business is generally carried on in the place to which such communication is sent, it shall be deemed to have been received at the commencement of business on the next such date in that place); or
  3. (in the case of delivery by post) 3 Business Days following the date of posting.
GENERAL
1. Entire agreement
  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.
2. Governing law and jurisdiction
  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.
3. No agency
  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.
4. Exercise of rights
  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.
5. Waiver and variation
  A provision of or a right created under the Agreement and each Agreement may not be:
  1. waived except in writing signed by the authorised representative of the party granting the waiver; or
  2. varied except in writing signed by the authorised representative of the parties.
6. Indemnities
  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.
7. Reasonable Assistance
  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.
8. Survival
  Clauses of this Agreement which are by their nature intended to survive termination will survive any termination for any reason, of this Agreement.
UPDATES TO THESE TERMS
1. BWARE Limited reserves the right, in our discretion, to correct any errors or omissions in any part of the Licensed Software. Bware Limited may restrict access to parts or the entire Licensed Software at any time, including, but not limited to, content, certain features, hours of availability, and equipment needed for access or use, without notice or liability.
2. BWARE Limited reserve the right, in our sole discretion, to change, modify, add or remove any part of this Agreement, in whole or in part, at any time. Notification of the changes to the terms of this Agreement will be posted on the Bware Limited website and will be effective immediately, unless expressed otherwise.
3. It the Client’s sole responsibility to periodically check this Agreement for any changes. If the Client does not agree with any of the changes to this Agreement, it is the Client’s sole responsibility to terminate this Agreement. The Client’s continued use of the Licensed Software will be deemed as the Client’s acceptance thereof.