Terms of Use

APPENDIX I: Terms and Provisions relating to the licensing of the Software by the Supplier for the Customer

  1. Covenants by Supplier
    1. The Supplier is the owner of the Software and has agreed to licence the Software to the Customer.
    2. The Supplier will provide support services for the Software in accordance with the provisions of Appendix II.
    3. The Supplier licences on a non-exclusive basis the Customer to implement and use the Software for the term of the agreement.
  2. Covenants by Customer
    1. The Customer agrees not to decompile, copy, disassemble, reverse engineer, alter, adapt, transfer, assign or in any other way alter the Software or create similar software during the term of the licence or after termination of the licence.
    2. The Customer will:
      1. Not use the Software for any site other than the Site, for more than the number of Users, for any purpose or use other than the Type of Use, during or following the termination of this agreement.
      2. Not introduce new or extended features to the Software
      3. Not represent the Customer has ownership rights to the Software or grant any security interests in or over the Software.
      4. Not copy the Software except for back up purposes.
      5. Not licence, sub-licence, transfer, assign or grant any similar rights over the Software.
      6. Not alter the Software to remove references to the Supplier embedded in the Software.
      7. Not make changes to data directly in the database.
  3. Intellectual Property Rights
    1. The Supplier holds all intellectual property rights to the Software and to all programmes within the Software.  The Customer will not claim any right, interest, or other property rights to the Software, or any part, or to any modifications, enhancements or alterations to the Software.
    2. To the extent the Customer has introduced information that is confidential to the Customer into the programmes operated as part of the Software this information remains the exclusive property of the Customer and the Supplier will not willfully or in breach of security requirements disclose or release any of that information except with the prior consent of the Customer.
  4. Updates and Upgrades
    1. The Supplier will from time to time implement Updates and Upgrades of the Software.
    2. The Supplier will advise the Customer of the release of any Updates and Upgrades and, if requested by the Customer, provide the Update and/or Upgrade to the Customer for its installation. No fee shall be payable in respect of any Updates or Upgrades Unless the Customer requests the Update and/or Upgrade be installed outside of business hours.  In this case the Support Charges in Schedule 2, Clause 4 will apply.
    3. The Customer may choose whether, or not to accept any upgrades produced by the Supplier.  However, the version the Customer is on can be no older than 12 months behind the current release of the Software, with mobile devices using the current release.
    4. Other than as may be required pursuant to clause 5.3 in Appendix III, nothing in this agreement obliges Assura to develop Updates or Upgrades.
      Whether any release is an Update or an Upgrade shall be determined solely by Assura, provided that Assura does not act unreasonably in its determination.
  5. Inspection by Supplier
    1. Assura may at reasonable times and upon reasonable notice inspect and take copies of extracts from IIS logs and the application database to verify the Customer’s compliance with clause 2.
    2. In the event that such audit in 5.1 discloses that the Customer has at any time used the Software in relation to more sites, users or type of use than specified in the Schedule, without prejudice to any other rights and remedies available to Assura the Customer shall immediately pay Assura the licence fee applicable to the additional sites, users or type of use as determined by Assura in its sole discretion, acting reasonably, together with interest on that amount at the rate specified in clause 4.3 (c) of Appendix III above from the date that the Customer first breached clause 2 to the date of payment, together with the costs of the audit.
  6. General Provision
    1. The general terms, conditions and provisions including the definitions, set out in Appendix III shall apply to and be included in Appendix I as if set out in full.

APPENDIX II:  Terms and Conditions relating to the supply of services by the Supplier to the Customer in relation to the Software licensed by the Supplier to the Customer

  1. Provision of Services by Supplier
    1. The Supplier agrees to provide to the Customer services for the Software as set out in any valid Statement of Work
    2. The Supplier agrees to provide to the Customer support services for the Software as set out in Schedule 2 (Software Support Services).  The Support Services will be provided on a timely basis dependent upon the level, frequency and response times agreed in Schedule 2.
    3. The Supplier agrees to have suitably qualified employees or contractors with the skills and experience required to provide the Services to the Customer.
  2. Customer’s Obligations
    1. The Customer will provide to the Supplier both electronic and if required physical access to the systems and premises of the Customer on a timely basis to enable the Services to be provided.  Additional costs may be incurred if there are delays in providing access or if system pre-requisites are not available.
  3. Support Services
    1. In consideration for payment of the Fees by the Customer, the Supplier shall use its best endeavours to provide the Support Services during the hours, and within the target response times, set out in Schedule 2.
    2. In the event that the Customer requests the Supplier to remedy faults arising outside the hours set out in Schedule 2, or which require on-site access by the Supplier, the Supplier will charge the Customer Support Charge based on the hourly rates set out in Schedule 2 plus any reasonable travel costs or expenses incurred by the Supplier.
    3. All Fault calls shall be made to the Supplier’s Support Portal in the first instance.
    4. The Support Fee shall not cover:
      1. Correction of Faults where the Software is dependent or reliant on third party software which is causing the Fault if similar support arrangements as described in clauses 3.1 to 3.3 are not in place for that third party software;
      2. Correction of Faults where arising from, in or as a result of software developed by a third party;
      3. On site or out of hours maintenance or support;
      4. Support of third party software, accessories, attachments, machines, systems or other devices unless listed in Schedule 2;
      5. Support covered by existing agreements the Customer has with third parties.
      6. Rectification of lost or corrupted data arising for any reason other than the Supplier’s own negligence;
      7. Correction of Faults that cannot be replicated on the latest release of the Software for both web and mobile applications;
      8. Correction of Faults resulting from changes, alterations, additions, modifications or variations made to the Software or the System by the Customer without the Supplier’s prior written consent;
      9. Correction of Faults resulting from use of the Software in a manner not contemplated by the Specifications, the Licence or the Documentation;
      10. Correction of Faults resulting from loss or damage caused directly by an operator failure to follow documented operational procedures, or to operate the System according to normal conventions;
      11. Supply of any media or consumables required in order to provide any service covered by this clause;
      12. Retraining of Customer staff;
        and the Supplier shall charge for such services at the rates set out in clause 4 of Schedule 2 hereof unless otherwise notified in writing by the Supplier.
    5. Unless specifically agreed otherwise in writing, for the avoidance of doubt, services provided under this agreement do not include installation, configuration, training or consulting services or the provision of Updates and Upgrades in accordance with the Licence.
  4. Warranties
    1. The Supplier warrants that it will provide the services under this agreement with the standards of skill, care and diligence normally practiced by a business performing services of a similar nature, and to comply with all relevant laws, regulations, standards and codes of conduct.
    2. Subject only to clause 4.1 above, the Supplier gives no other warranties or representations in relation to the services provided under this agreement. All warranties and provisions (including, but not limited to warranties of description, design, merchantability or fitness for a particular purpose) express or implied by statute, common law or otherwise are excluded to the maximum extent permissible.
  5. General Provision
    1. The general terms, conditions and provisions including the definitions, set out in Appendix III shall apply to and be included in Appendix II as if set out in full.

APPENDIX III Standard Provisions

  1. Definitions and interpretation
    1. In this agreement:
      1. “Additional Support Services” means the provision of additional support services defined in Annexure III.
      2. “Assura Proposal” means the Suppliers proposal to the Customer dated [        ] 2018.
      3. “Documentation” means the documentation (whether in hard copy or electronic form) relating to the Software supplied by the Supplier for use with the Software.
      4. “Customisations” means code developed specifically for the Customer pursuant to a separate services agreement and as may be more particularly specified in that agreement or in the Schedule.
      5. “Fair Use” means the definition outlined in Clause 4 of Schedule 2.
      6. “Fault” means a failure by the Software to meet the requirements of the Developed Proposal in accordance with the final specifications determined by the parties;
      7. “Go Live” means the date the implementation project covered by one or more Statements of Work has completed user acceptance testing or 14 days after the release package, whichever comes first.
      8. “Installation” means the instalment of the Software, whether by physical or by remote means, on to the Server to the state that the Software is ready to be configured for the Customer.
      9. “Licence” means a non-transferable, non-exclusive licence to use the Documentation and Software during the Term (including any renewal period in accordance with this agreement) in the Operating Environment.
      10. “Licence Fee” and “Fees” means the respective fees set out in Schedules 1 and 2.
      11. “Operating Environment” means the operating system and network protocols as described in Schedule 1.
      12. “Payment Schedule” means the payment schedule specified in Schedule 1.
      13. “Server” means the server specified in Schedule 1.
      14. “Sites” means the sites specified in Schedule 1.
      15. “Software” means software owned and licensed to the Customer by the Supplier.
      16. “Specifications” means the technical description of the Software set out in the guide provided by the Supplier from time to time.
      17. “Statement of Work” means the written agreement, if any, executed by the parties for the provision of services (other than support services) relating to the Software.
      18. “Support Charges” means the charges for the support services specified in the Schedule.
      19. “Support Portal” means the website (https://support.assurasoftware.co.nz) provided by the Supplier for the purposes of lodging faults and queries.
      20. “Support Services” means the services specified in Schedule 2.
      21. “Support Fee” means the monthly fee payable for the Services set out in Schedule 2;
      22. “System” means the Customer’s operating environment specified in Schedule 1 with which the Software is to operate in combination.
      23. “Term” means the term specified in Schedule 1 and includes any renewal of the Term in accordance with the agreement.
      24. “Type of Use” means the type of use specified in Schedule 1.
      25. “Updates” means enhancements or modifications to improve the basic functionality of the Software but does not include new or additional performance features, functions or enhancements that extend the basic functionality of the Software.
      26. “Upgrades” means any new or additional performance functions or options that extend the basic functionality of the Software.
      27. “Users” means the maximum number of users specified in Schedule 1.
      28. “Warranty Period” means a period of 30 days from the date of Go Live.
      29. “Working Day” means any day of the week other than a Saturday, Sunday or public holiday on which registered banks are open for over the counter business in Christchurch, New Zealand, excluding the period 24 December to 10 January (inclusive) of each year.
    2. In this agreement unless the context requires otherwise:
      1. references to clauses and schedules are to clauses of and schedules to this agreement;
      2. derivatives of any defined word or term shall have a corresponding meaning;
      3. the headings to clauses shall be ignored in construing this agreement;
      4. the word including and other similar words do not imply any limitation;
      5.  any party to this agreement or any other agreement includes its successors and permitted assignees and transferees; and
      6. the plural includes the singular and vice versa.
    3. Goods and Services Tax: All payments in this agreement are exclusive of Goods and Services Tax (GST). GST will be added to all invoices and payments under this agreement.
  2. Term
    1.  The term of the agreement is set out in Schedule 1.
    2. Following the conclusion of the Term, this agreement shall automatically extend for further periods of 12 months unless notified 90 days prior to the conclusion of the Term. In the case the Term is automatically extended, either party may provide 90 days written notice to the other party that it wishes to terminate this agreement.
  3. Functionality
    1. The Supplier warrants and confirms that during the Warranty Period when the Software is used in the Operating Environment set out in Schedule 1 the Software will perform in all material respects with the operating requirements set out in the Statement of Work, agreed with the Customer:
      1. Follows all processes and procedures as advised by the Supplier;
      2. Has correctly installed the Software and complied with all the recommendations and instructions of the Supplier in relation to the operation and use of the Software.
  4. Charges and Payment
    1. The Customer shall pay the Supplier all fees as per agreed in Schedule 1, Schedule 2, any agreed Statement of Work or agreed in writing.
    2. The Supplier has no obligation to provide any services until payment of the Licence Fee has been received by the Supplier.
    3. The Supplier may amend its Licence Fees or Services Fees by giving 30 days written notice, provided that it shall not do so within 12 months of the date of execution of this agreement and that no more than once in any 12 month period.
    4. Upon receipt of the Suppliers valid invoice the Customer will make payments on the 20th day of the month following the date of the invoice or the previous business day if the 20th days falls on a weekend.
    5. All payments shall have GST added and the Supplier shall provide an invoice to the Customer for GST purposes.  Both parties warrant they are and will remain registered for GST purposes.
    6. If payment is not made on the due date the Supplier may at its option exercise all or any of the following:
      1. suspend providing the Services until payment is made by the Customer;
      2. cancel this agreement after the payment is in default for one calendar month;
      3. charge interest at the rate of 15% per annum on any outstanding amounts, from the date that the amount fell due to the date of actual payment; and
      4. The Customer shall pay the Supplier’s costs, including legal costs on a solicitor and client basis, incurred in collecting any sums due under this agreement (including interest).
  5. Warranties
    1. In addition to the provisions of Appendix II, clause 4 above the Supplier warrants that:
      1. It has the authority to enter this agreement;
      2. It possesses the necessary rights to grant the Customer the rights granted pursuant to this agreement;
      3. To the best of its knowledge and belief the Software does not infringe any intellectual property rights of any third party;
    2. Subject only to clause 5.1 above and the warranties in clause 3, the Supplier gives no other warranties or representations in relation to the Software, its use or operation and all warranties and provisions (including, but not limited to warranties of description, design, merchantability or fitness for a particular purpose) express or implied by statute, common law or otherwise are excluded to the maximum extent permissible.   The Customer acknowledges that the Software may not be accessible at all times due to maintenance or repair of the Software or factors outside the control of the Supplier.
    3. At the Supplier’s option, in the event of the Customer advising the Supplier in writing of any material defects in the Software during the Warranty Period, the Supplier will:
      1. Replace materially defective Software or;
      2. Repair material defects in the Software without charge,
        provided that the Customer has advised the Supplier of such defects in writing as soon as practicable and no later than seven days after the conclusion of the Warranty Period.
    4. The warranties referred to above do not cover any:
      1. Functionality, or the consequences of any functionality, added to the Software or modifications made to the Software, by the Customer or any third party;
      2. Errors or defects caused in whole or in part by the failure of any hardware or other equipment to function in accordance with the specifications of the applicable manufacturer;
      3. Changes to the operating environment or technical infrastructure made by or on behalf of the Customer that affect the performance of the Software; or
      4. Services or consequences of any services provided by a third party to the Customer in connection with the Software.
  6. Limitation of Liability
    1. Subject only to clause 6.2 below, neither the Supplier nor any of its third party suppliers shall be liable, whether in contract, tort or in any other manner whatsoever for any direct or indirect damages, consequential damages, loss of profits, costs or expenses (including solicitor/client expenses) incurred by the Customer arising directly or indirectly from:
      1. Unless wilful, any act, omission, error, default or delay by the Supplier or its agents;
      2. Unless wilful, any act, omission, error, default or delay in respect of the provision, installation, configuration, development, use or termination of the Software; or
      3. Otherwise arising out of or in connection with the performance or non-performance of this agreement.
    2. In the event that clause 6.1 above does not apply to any circumstance or event, and the Supplier is found to be negligent, the Supplier’s maximum total liability to the Customer for any one event or series of related events during the term of this agreement shall be limited to 100% of the Annual Licence Fee (excluding GST and any additional fees or payments) actually paid by the Customer to the Supplier during the Term.
  7. Indemnity
    1. Subject to clauses 7.2 and 7.3 below, the Supplier shall indemnify and hold harmless the Customer from direct costs (including reasonable solicitor/client costs) arising from claims, demands and actions alleging that the Software or the Documentation infringes a third party’s intellectual property rights.
    2. The indemnity referred to in clause 5.1 above shall only apply if the Customer:
      1. Notifies the Supplier in writing as soon as practicable when the allegation of infringement is made to the Customer;
      2. Makes no admission of infringement or liability other than with the express prior written consent of the Supplier;
      3. Gives the Supplier the option to be a party to the defence of the claim;
      4. Provides the Supplier with all reasonable assistance in conducting the defence of the claim;
      5. Permits the Supplier to modify, alter or substitute all or part of the Software, at its own expense and at its own discretion, to render the Software non-infringing; and
      6. Authorises the Supplier to procure for the Customer the authority to continue to use the Software.
    3. The indemnity referred to in clause 5.1 above shall not apply if:
      1. The alleged infringement arises from any modification or alteration to the Software or use of the Software except as expressly permitted by this agreement; or
      2. The Customer is in or has been in breach of any term of this agreement.
  8. Precedence of documents
    1. In the event of any conflict of meaning, or ambiguity, the documents which comprise this agreement shall have the order of precedence set out below:
      1. Any written variation to the schedule(s) agreed between the parties. Any such variations shall have the order of precedence of the later variation prevailing over any inconsistent earlier variation;
      2. The schedule(s) to this agreement;
      3. These terms and conditions.
  9. Termination
    1. Either party has the right to terminate this agreement immediately and without notice if:
      1. One party breaches any term of this agreement and such breach, being capable of remedy, is not remedied within ten Working Days of receiving a notice in writing specifying the default;
      2. One party breaches any term of this agreement and such breach is incapable of remedy;
      3. The Supplier does not receive full payment on behalf of the Customer in accordance with this agreement; or
      4. Either party is deemed unable to pay its debts as they fall due, a resolution is passed or order made for its liquidation, or it is placed into statutory management, liquidation, administration or receivership.
    2. The Supplier has the right to terminate this agreement by giving the Customer 30 days notice in the event that:
      1. The Customer merges, integrates or amalgamates with another entity other than by way of an administrative restructure;
      2. The Customer is established or continued by statute, and that statutory basis of establishment or continuation is amended.
    3. The expiry or termination of this agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination.
    4. On termination of this agreement for any reason:
      1. All rights granted to the Customer will terminate;
      2. The Customer shall immediately cease all use of the Software;
      3. The Customer shall immediately pay to the Supplier all outstanding amounts up to the date of termination;
      4. All obligations that are intended to continue, or to come into force, after termination of this agreement shall continue or shall come into force; and
      5. Within 14 days of termination the Customer shall return or delete all copies of the Software (including back-ups) and Documentation to the Supplier and a senior officer or manager of the Customer shall provide written certification that this obligation has been met.
      6. The Supplier will assist the Customer to extract relevant data prior to cessation of use (e.g. create a copy of the SQL database).  Services provided will be carried out on a Time and Materials basis at the rates applying at the time the Services are provided.
  10. Promotional Material
    1. Provided written agreement is in place, the Customer shall permit the Supplier to include Customer logos and any documents or quotes agreed to by both parties in the Supplier’s promotional material.
  11. General
    1. Notices: All notices to be given under this agreement will be in writing and will be sent to the usual business address of the other party, or any other address the other party may designate by notice given in accordance with this clause. Notices may be delivered personally, by email, or by air mail pre-paid letter. Notices will be deemed to have been received:
      1. By hand delivery – at the time of delivery;
      2. By mail – on the second Working Day after the date of mailing;
      3. By email – immediately on transmission;
        provided that any notice received after 5pm or not on a Working Day shall be deemed to have been received at 9am the next Working Day, and that no notice shall be deemed to have been received if the sender receives a system-generated indication of failure of transmission or sending.
    2. Non reliance:  Each party to this agreement acknowledges that it has relied on its own judgment in respect of all matters under this agreement.
    3. Further assurances:  Each party shall do all such things as are necessary to implement the provisions of this agreement.
    4. Assignment: The Customer may not sell, transfer, assign or sub-contract all or any part of his or her interest in this agreement without the express written consent of the Supplier, such consent not to be reasonably withheld.  For the purposes of this clause, a merger with another entity shall be deemed to be an assignment.
    5. Force majeure: Neither party shall be liable for failure to perform its obligations under this agreement if such failure results from circumstances beyond its reasonable control, including but not limited to acts of God, government intervention, fire, explosion, earthquake, volcanic activity, extreme adverse weather conditions, war, terrorism, civil commotion and sabotage (the “Force Majeure Event”). If such failure persists for more than two months after the Force Majeure Event, then the affected party may terminate the agreement by giving 10 Working Days written notice.
    6. Waiver: No waiver of any breach of any term of this agreement shall be effective unless in writing signed by the party having the right to enforce such breach and no such waiver shall be construed as a waiver of any subsequent breach.
    7. Variation:  This agreement may only be varied by agreement in writing by the parties, or in accordance with express provisions of this agreement.  A failure, delay or indulgence by any party in exercising any power or right shall not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right shall not preclude further exercises of that power or right or the exercise of any other power or right.
    8. Entire agreement: This agreement constitutes the entire agreement between the parties in relation to the subject matter of this agreement.  Any prior arrangement, agreements, representations or undertakings are expressly superseded and extinguished.
    9. Costs:  Each party shall bear their own costs incurred in connection with the preparation and execution of this agreement.
    10. Severance:  Any illegality, or invalidity or unenforceability of any provision in this agreement is not to affect the legality, validity or enforceability of any other provisions.
    11. Governing law:  This agreement shall be governed by the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand courts.
    12. Execution:  This agreement may be signed in any number of counterparts (including facsimile copies) and provided that each party has signed a counterpart, the counterparts, when taken together, will constitute a binding and enforceable agreement between the parties.