ISOFTWARE LIMITED

 

(“Licensor”)

 

 

 

INDIVIDUAL AND OR COMPANY (“YOU”)

 

(''Licensee'')

 

 

 

ELECTRONIC PRODUCT LICENCE AGREEMENT

 

 

 

 

 

 

WHEREAS

 

A.                 This Licence Agreement is between ISoftware Limited (“the Licensor”) (the Licensor also referred to as “us” or “we”), and the individual or Company (“Licensee”) to whom we have agreed to supply the online services and material (the Licensee also referred to as “you” or “your”).

 

B.                 The Licensor has agreed to licence software to the licensee in accordance with the following terms and conditions which govern your use of the software and the online services supplied by us (“the online services”) and the materials and content available therein (“the materials”).

 

C.                The licensed products may not be used except in accordance with the terms and conditions of the Licence Agreement. 

 

D.                If you do not wish to accept the Licence Agreement please cancel the purchase or download process immediately and do not install, copy or use the software. 

 

1.                  definitions

1.1             Unless the context otherwise requires, the following expressions shall have the  following meanings:

“Agreement” means this agreement and the schedules attached to it or incorporated into it by reference;

“Commencement Date” means the date you sign or accept online this Agreement;

“Confidential Information” means information which is or has been disclosed by one party to the other, but does not include any information that is:

(a)         on receipt, in the public domain, or that subsequently enters the public domain without any breach of this Agreement.

(b)         on receipt, is already know by the party receiving it;

(c)         at any time after the date of receipt, received in good faith from a third party; and

(d)         required by law to be disclosed.

 “Documentation” means any documentation (whether electronic or hard copy) supplied as part of this licence and includes any documentation (whether electronic or hard copy) associated with any Revision of the software;

“Force Majeure Event” means any war, riot, strike, natural or man-made disaster or other circumstance of a similar nature;

“GST” means goods and services tax imposed under the Goods and Services Tax Act 1985;

“Installation Date” means the date the software is downloaded by the licensee;

“Intellectual Property” means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietory right or form of intellectual property;

“Online Services” means any internet based services or similar services provided as part of or ancillary to the software and “online” has a corresponding meaning;

“Prerequisite Products” means products required on the system for the Software to install, operate, or function.

“Revisions” means modifications to the Software or the online services in the nature of improvements made to correct program faults or other defects, or to effect enhancements to the functionality of the Software or online services;

“Site” means the site at which the Software is to be installed and includes any additional sites agreed by the parties in writing;

“Software” means the software the subject of this licence and includes any Revisions, but excludes source code; “software” includes documentation (whether electronic or hard copy);

“Supplemental Terms” means any supplementary or additional terms and conditions that may apply to any particular file or webpage or website to which the software or the online services may give access;

“System” means the equipment and software that form the system on which the Software is to be installed or to which the software is to be downloaded;

“Warranty Period” means 30 days after the purchase of the Software and/or online services.

“Working Day” means a day that is not a Saturday, Sunday or statutory holiday in New Zealand.

2.                  Scope of the agreement

2.1              In accordance with the terms and conditions of this agreement the Licensor shall:

(i)         supply to the Licensee software to help with financial and investment planning;

(ii)        licence the Licensee to use the software;

(iii)       provide the documentation that accompanies the software which is licensed for internal, non-commercial reference purposes only;

(iv)       reserve all rights not expressly granted to the Licensee in this licence.

2.2              In accordance with the terms and conditions of this agreement the Licensee shall:

(i)      install and/or use a copy of the Software on one personal computer or other device;

(ii)       as an alternative to 2.2 (i) you may install a copy of the Software on a network storage device, such as a server computer, and allow one access device, such as a personal computer, to access and use that licensed copy of the Software over a private network.  You must obtain a licence to the Software for each additional device that accesses and uses the Software installed on the network storage device.

 

3.                  acceptance

3.1              The Licensee shall be deemed to have accepted the terms and conditions of this agreement by clicking on “I ACCEPT the terms and conditions of the licence agreement” on the web page and installing and using the software.

4.                  term of licence

4.1              The term of the licence granted under this agreement shall commence on the date this agreement is consented to and the software is downloaded.

5.                  intellecutual property

5.1              The Licensee acknowledges that the Licensor and the Licensor’s Head Licensor are between them the sole owner of all rights (including intellectual property rights) in the software and in its source code and accompanying information supplied under this agreement, but for the avoidance of doubt the Licensee will not be supplied with or given access to such source code.

6.                  templates

6.1              The software includes templates to enable the Licensee to complete calculations to help with their financial and investment planning.

7.                  licence: restrictions on use

7.1              Subject to any supplemental terms which may apply for specific materials, you are granted a non-exclusive, non-transferrable, limited licence to access and use the online services and the software and materials from time to time made available to you for the purposes of financial and investment planning.  This licence is subject to the following limitations:

(a)               The right to electronically display materials retrieved from the online services is limited to the display of such materials primarily to one person at a time subject to the supplemental terms for specific materials;

(b)               The right to obtain a printout of materials is limited to a printout of a reasonable portion of the materials obtained using the printing commands of the online services or your web browser software in the creation of a single printout of a reasonable portion of the materials downloaded.

7.2              To the extent expressly permitted by applicable copyright law and not further limited or prohibited by the supplemental terms for specific materials, you may make copies of authorised printouts and distribute authorised printouts and copies. 

7.3              Except as specifically provided for in this licence, you are otherwise prohibited from downloading, storing, reproducing, transmitting, displaying, printing, copying, distributing or using materials retrieved from the online services.  You may not print or download materials without using the printing or downloading commands of the online services or your web browser software.  All access to and use of the online services via mechanical programmatic robotics, scripted or any other automative means not provided as part of the online services is strictly prohibited.  Use of the online services is permitted only by manually conducted discreet individual search and retrieval activities. 

7.4              All right, title and interest (including all copyrights and other intellectual property rights) in the online services and materials (in both print in machine readable forms) belong to the licensor.  You acquire no ownership of copyright or other intellectual property rights of proprietary interest in the online services materials or copies thereof. 

7.5              Except as specifically provided herein, you may not use the online services or materials retrieved from online services in any fashion that infringes the copyright or proprietary interest therein. 

7.6              You may not remove or obscure copyright notice or other notices contained in materials retrieved from online services. 

7.7              You may not use any Online Services in any manner that could damage, disable, overburden, or impair such services or interfere with any other party’s use and enjoyment of them.  You may not attempt to gain unauthorised access to any service, account, computer system or networks associated with the Online Services.

7.8              You may not reverse engineer, decompile, or disassemble the Software, except  and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

7.9              You may not rent, lease, lend or provide commercial hosting services with the Software.

7.10          You may not resell the Software.

7.11          You may use remote access technologies, such as the Remote Desktop features in Microsoft Windows, to access and use your licensed copy of the Software, provided that only the primary user of the device hosting the remote desktop session accesses and uses the Software with a remote access device.  For the avoidance of doubt these remote desktop rights do not permit you to use the Software on both the device hosting the remote desktop session and the access device at the same time.

8.                  ACCESS TO SERVICES

8.1              The software is designed for personal home use, and if the Licensee is a company only your employees and support personnel authorised by both us and you shall be entitled to access and use the online services and materials.

8.2              Your customer identification code may be restricted from accessing certain materials otherwise available in the online services.

8.3              Materials and features may be added to or withdrawn from the online services and the online services may otherwise change without notice.

8.4              You must ensure that each person having access to the online services and materials:

(a)               is an authorised user; and

(b)               is using those online services and materials only in accordance with these general terms and conditions and additional terms.

9.                  LIMITED WARRANTY

9.1              We represent and warrant that we have the right and authority to make the online services and materials available pursuant to these general terms and conditions.

9.2              Except as otherwise provided in this licence

(i)                  the online services and materials are provided on an “as is, as available” basis; and
(ii)                to the maximum extent permitted by law, we make no guarantees, representations, or warranties (whether express, implied or statutory) including without limitation that the online services and materials are or will be complete or free from errors or the information will continue to be available to us to enable us to keep the online services and materials up to date.

9.3              The Licensor (to the maximum extent permitted by law) makes no guarantees, representations or warranties regarding the use of or dissemination of information or statistics or data found from other websites or sources that are linked or referred to on or in the Licensors website or in the software.  The Licensor is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services.  The Licensor is providing these links and access to third-party sites and services only as a convenience to you, and the inclusion of any link or access does not imply an endorsement by the Licensor of the third-party site or service.

9.4              Nothing in these general terms and conditions is intended to avoid the provisions of the New Zealand Consumer Guarantees Act 1993 except to the extent permitted by the Act, or to exclude liability arising under any other statute, if and to the extent that such liability cannot be lawfully excluded, and these general terms and conditions shall be modified to the extent necessary to give effect to that intention.  If you access any of the online services or materials for the purposes of a business you agree that the guarantees and remedies provided in the Consumer Guarantees Act 1993 shall not apply.  We do not provide any express guarantees (as that term is defined in the Consumer Guarantees Act 1993) other than those expressly confirmed in these general terms and conditions.

9.5              The licensor provides the following limited warranty in relation to the Software:

(i)    The Licensor warrants that it has full power and authority to licence the  Software to the Licensee;

(ii)      The Licensor warrants that to the best of its knowledge and belief the Software does not infringe any New Zealand patent, copyright, trade secret or other proprietary right of any third party;

(iii)   The Licensor warrants that, during the warranty period covered by this agreement, the Software will function substantially in accordance with its published specifications but the licensee acknowledges that the Software is of a complicated and technical nature and may have minor or inherent defects.  During the warranty period, the licensor will repair or replace the Software, at its sole option, to correct documented code errors which are caused by a defect in an unaltered version of the Software.  This non-transferable warranty is only valid for the warranty period.

10.              partial invalidity

10.1          If any provision of this licence or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this licence and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.

 

 

11.              LIMITATION OF LIABILITY

11.1          To the maximum extent permitted by law, a covered party (as defined below) shall not be liable for any loss, injury, claim, liability or damage for any claim resulting in any way from:

(a)               any errors in or omissions from the online services or the Software or any materials available or not included therein;

(b)               unavailability or interruption to the proposed online services or the Software or any features thereof or any materials;

(c)               your use or misuse of the online services or the Software or materials (regardless of whether you received any assistance from the covered party in using or misusing the online services or the Software or materials);

(d)               your use of any equipment in connection with the online services or the Software or materials;

(e)               the content of the online services or the software materials;

(f)                 any delay or failure in performance beyond the reasonable control of the covered party;

(g)               any negligence of a covered party or its employees, contractors or agents in connection with the performance of our obligations under this Agreement;

(h)               any incompatibility of either or both of the software and the online services with the system or with any equipment or other software forming part of or loaded on the system; or

(i)                  any force majeure event;

(j)                  [if you are a financial planner or other professional advisor or broker] any liability you may incur to any of your clients or to any member of the public or to any financial institution(s) arising out of or in relation to your use of any of the online services, the software, and the materials provided.

11.2          “Covered Party” means:

(a)               us, our affiliates and any officer, director, employee, sub-contractor, agent, successor or assign of us or our affiliates; and

(b)               each third party supplier of materials or services, their affiliates and any officer, director, employee, sub-contractor, agent, successor or assign of any third party supplier of materials or services or any of their affiliates.

11.3          A liability to you for breach of any conditional warranty implied under any law which cannot be lawfully modified or excluded by this Agreement shall, to the extent permitted by law, be limited at our option to supplying the online services or software or materials again or paying for their resupply. 

11.4          Our liability to you for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that you caused or contributed to that loss or damage.

11.5          Subject to Section 11.3 the aggregate liability of the Covered Parties in connection with any other claim arising out of or relating to the online services or software or materials shall not exceed the lesser of the amount of your actual direct damages suffered or the actual fee paid by you for the Software license which in the case of a free trial version of the license is zero.  Your right to monetary damages of that amount should be in lieu of all of the remedies which you may have against any Covered Party.

11.6          Subject to Section 11.3 the Covered Party shall not be liable for any special, indirect, incidental or consequential damages of any kind whatsoever (including, without limitation legal fees) in any way due to, resulting from, or arising in connection with the online services, software, materials or failure of any Covered Party to performance obligations regardless of any negligence of any party.

11.7          The Licensor is not responsible or liable for any problems caused by the installation or configuration or use of the prerequisite products.

12.              MISCELLANEOUS

12.1          You may not assign your rights or delegate your duties under these general terms and conditions or any additional terms without our prior written consent.

12.2          These general terms and conditions in the additional terms shall be governed by and construed in accordance with the laws of New Zealand.

12.3          Mandatory Activation:

There are technological measures in this software that are designed to prevent unlicensed use of the Software.  You may experience difficulties in exercising your rights to the Software unless you activate your copy of the Software in the manner described in the Software and/or the documentation.  You may also need to reactivate the Software if you modify or change your computer hardware or any operating system software or tools which are required by the Software.  The Licensor will use those measures to confirm you have a legally licensed copy of the Software.  If you are not using a licensed copy of the Software, you are not allowed to install the Software or any future Software updates.  The Licensor will not collect any personally identifiable information from your device during this process.

13.              dispute resolution

13.1          Where any dispute arises between the parties concerning the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relations to the dispute unless that party has complied with the procedures set out in this clause 13.

13.2          The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations.  The other party must within seven days give written notice to the first party naming the other party’s representative for the negotiations.  Each representative nominated shall have authority to settle or resolve the dispute.

13.3          If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.

13.4          The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement.  The mediation must be conducted by a mediator at a fee agreed by the parties.  Failing agreement  between the parties, the mediator shall be selected and his/her fee determined by the chair for the time being of LEADR New Zealand Inc.