SIX DEGREES – END USER LICENCE AGREEMENT
This licence agreement (Licence) is a legal agreement between you (you) and Theta Systems Limited of Level 2, Theta House, 8-10 Beresford Square, Auckland 1010, New Zealand (Licensor, our or us) for Six Degrees planning software (Software). The Licence includes a licence to use OEM MicroStrategy Enterprise Analytics software, which is incorporated into the Software. You must only use this software in accordance with your use rights and the restrictions for the Software as set out in this Agreement.
We licence use of the Software to you on the terms of this Licence. We remain the owner of the Software and of the documentation in support of the Software (Documentation) at all times.
IMPORTANT NOTICE TO ALL USERS:
BY USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 5.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENCE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU MUST NOT USE THE SOFTWARE.
1. GRANT AND SCOPE OF LICENCE
1.1. In consideration of the payment of the licence fees as set out in the Statement of Work agreed with you, the Licensor grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence.
1.2. You may:
a) use the Software for your internal business purposes only for the number of named users agreed between us as set out in the Statement of Work;
b) use any Documentation in support of the use permitted under this clause 1.2 and make up to two copies of the Documentation as are reasonably necessary for its lawful use.
2.1. Except as expressly set out in this Licence or as permitted by any local law, you undertake:
a) not to rent, lease, make available via any bureau or software as a service offering, sub-licence, loan, translate, merge, adapt, vary or modify the Software or Documentation;
b) not to copy, display, distribute, or otherwise use the Software in any manner or for any purpose not expressly authorised by the terms of this Licence;
c) to supervise use of the Software and ensure that the Software is used by your personnel and representatives in accordance with the terms of this Licence;
d) not to make alterations to, or modifications of, any parts of the Software other than via configuration options already present in the product;
e) not to disassemble, de-compile, reverse engineer (including of the metadata created by the Software), decrypt or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program; (ii) is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is similar to the Software;
f) not to use the Software in a manner which violates an individual’s privacy right set forth by statute, rule, regulation or case law; or
g) attempt to break the system via hacking or overloading the platform with unsupported data volumes.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to us, that rights in the Software are licenced (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
3.2. You acknowledge that you have no right to have access to the Software in source code form.
4. WARRANTIES AND INDEMNITY
4.1. We warrant that:
a) the Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and
b) that the Documentation correctly describes the operation of the Software in all material respects.
4.2. If you notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, we will, at our sole option, either repair or replace the Software, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
4.3. The warranty set out above does not apply if the defect or fault in the Software results from you having used the Software in contravention of the terms of this Licence.
4.4. We warrant that the Software does not infringe any copyright or trade secret of any third party arising under law. Our sole obligations in the event of breach of this warranty are those set out in this clause 4.4. We indemnify you from costs, expenses, losses, damages, judgments arising out of any breach or alleged breach of the warranty in this clause 4.4; provided that you have notified us in writing as soon as practicable of any such infringement, suspected infringement or alleged infringement and you cooperate with us in the defence of such claim. We shall have the right to control the defence or settlement of any claim, and at our expense, to: (i) obtain the right for you to continue to use the Software; and/or (ii) modify the Software to avoid any infringement of the rights of third parties; and/or (iii) create or procure for you the right to use a substitute for such portions of the Software that avoid any actual or alleged infringement or violation. Upon us making any remedy available to you, such remedy will be in lieu of our indemnity obligation set out in the third sentence of this clause.
4.5. We shall not be obligated to indemnify you to the extent such infringement, suspected or alleged infringement arises from: (i) use of the Software in a combination by any means and in any form with computer software and/or systems, including, but not limited to hardware, not specifically approved or recommended by us, if such claim would not have occurred but for such combination; or (ii) use of the Software in non-conformance with this Licence.
5. LIMITATION OF LIABILITY
5.1. You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
5.2. If you are a business customer, we only supply the Software and Documentation for internal use by your business, and you agree not to use the Software or Documentation for any re-sale purposes.
5.3. We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:
a) loss of profits, sales, business, or revenue;
b) business interruption;
c) loss or corruption of data or information;
d) loss of business opportunity, goodwill or reputation; or
e) any indirect or consequential loss or damage.
5.4. Other than the losses set out in clause 5.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Licence Fee paid by you to us in the 12 months prior to the event giving rise to the loss.
6. TECHNICAL SUPPORT SERVICES
Technical Support Services will be provided and are included as part of your licence fees. In providing Technical Support Services, we will answer questions over the telephone or via email concerning the operation of the Software and provide you with online support. You will only be entitled to receive Technical Support Services if you have an active subscription for the Software.
7.1. We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
7.2. Upon termination for any reason:
a) all rights granted to you under this Licence shall cease; and
b) you must cease all activities authorised by this Licence.
Any notice will be deemed received and properly served when posted on our website (us to you), or 24 hours after an e-mail is sent. In proving the service of any notice sent by email it shall be sufficient that the e-mail was sent to the specified e-mail address of the addressee.
9.1. The parties shall use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Licence. This provides for a form of alternative dispute resolution and is not a reference to arbitration.
9.2. A party will, as soon as reasonably practicable, give the other party notice of any dispute in connection with the terms of this Licence.
9.3. Any dispute will be referred initially to a designated representative of the Licensor and your designated representative, who will endeavour to resolve the dispute within 10 days of the giving of the notice; and if the dispute is not resolved within the 10 days, to your Chief Executive and the Chief Executive of the Licensor who will endeavour to resolve the dispute within a further 10 days.
9.4. If, following the dispute resolution procedures set out above, the parties fail to resolve the dispute then the parties will try to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other. The mediator shall be agreed by the parties but if the parties cannot agree on one within 5 days after the mediation has been initiated, then the mediator shall be selected by the President of LEADR Inc. (Lawyers Engaged in Alternative Dispute Resolution) or its successor.
9.5. No formal proceedings for the judicial resolution of any dispute may be commenced until a dispute has proceeded through the dispute resolution processes set out above; PROVIDED THAT, with respect to any claim by us of actual or alleged infringement of any confidentiality or intellectual property right of, or licenced to, us, we, in our sole discretion, may at any time seek judicial resolution with or without resorting to the dispute resolution and mediation processes set out above.
9.6. All dispute resolution procedures shall be held in Auckland, New Zealand, unless otherwise agreed in writing.
10. OTHER IMPORTANT TERMS
10.1. Neither party shall issue any publicly disseminated statement using the name of the other party without that party’s consent (not to be unreasonably withheld or delayed). Notwithstanding, we may list your name and logo alongside our other clients on our website and in marketing materials, unless you have withdrawn such permission in writing.
10.2. We may transfer our rights and obligations under this Licence to another organisation. This will not affect your rights under this Licence.
10.3. You must not assign, transfer, or grant a security interest in respect of your rights under this Licence unless we agree in writing.
10.4. This Licence and any document expressly referred to in it constitute the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Licence.
10.5. If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights, or if we delay in doing so, that will not mean that we have waived our rights. If we do waive a default, we will only do so in writing, and that will not mean that we will automatically waive any later default.
10.6. Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
10.7. This Licence sets out the extent of our obligations and liabilities in the supply of the Software. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
10.8. This Licence is governed by the laws of New Zealand. Except in respect of clause 9 (Disputes) the parties otherwise agree to the exclusive jurisdiction of the courts of New Zealand.