Software end user licence agreement
IMPORTANT NOTICE TO ALL USERS:
BY DOWNLOADING OR INSTALLING THE SOFTWARE OR ACCEPTING THESE TERMS BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND/OR YOUR EMPLOYEES, CONTRACTORS OR REPRESENTATIVES. THE TERMS OF THIS LICENCE IN PARTICULAR INCLUDE LIMITATIONS OF LIABILTY IN CLAUSES 14 TO 16.
IF YOU DO NOT AGREE TO THESE TERMS WE WILL NOT LICENCE THE SOFTWARE AND DOCUMENTS TO YOU. PLEASE DISCONTINUE THE DOWNLOAD OR INSTALLATION OF THE SOFTWARE BY CLICKING THE ‘CANCEL’ BUTTON BELOW AND/OR DISCONTINUE ANY USE OF THE SOFTWARE AND DOCUMENTS.
This licence agreement (Licence) is a legal agreement between you (Licensee or you) and AGL (as defined in clause 26 below and also referred to as Licensor, us or we) for:
- beta or commercial release versions of computer software developed or distributed by us (including, without limitation, LEAPFROG® products, BLOCKBUSTER® products, modules such as Hydrogeology, Maptek Link, iOGasLink, and other products released from time to time by us) and any associated media (Software), and
- the release notes made available at the time of download or release of the Software and available via our websites or otherwise as provided to you (Documents).
We licence use of the Software and Documents to you on the basis of this Licence. The granting of this licence does not transfer ownership of the Software or Documents to you, which will always remain with AGL.
1. Licence: Subject to all applicable terms, AGL grants you a non-exclusive, non-sub- licensable and non-transferable licence to use the Software and Documents in accordance with this Licence and all applicable technology control or export laws or regulations.
2. Scope of Licence: You may:
a. download, install and use the Software on a computer provided by you for your internal business purposes in accordance with the licensing permissions applicable to you;
b. receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by us from time to time; and
c. use any Documents in support of the use permitted under this condition 2 and make one copy of the Documents as reasonably necessary for its lawful use.
3. Restrictions on Use: You must not:
a. translate, adapt or modify the Software or, if applicable, any dongle issued to you by us for licensing purposes (Dongle), or do anything to circumvent the operation of the Software or a Dongle, or combine or integrate the Software or a Dongle with any other product;
b. separate any component part of the Software or a Dongle for use on more than one computer;
c. lend, rent, lease, transfer, assign or otherwise deal in the Software, Documents or a Dongle or your rights under this Licence without the prior written consent of AGL;
d. make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software to any part of it to be combined with, or become incorporated in, any other programs; or
e. disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent expressly permitted by law.
4. Support: Except where you have a perpetual licence or a licence to use a beta version of the Software, your licence includes the right to receive support services and updates in accordance with the policies and processes published on our website from time to time. If you have a perpetual licence, the receipt of support and updates is subject to the payment of the necessary support fee.
5. Intellectual Property Rights: You acknowledge that the intellectual property rights in the Software and the Documents are vested in AGL and that you have no rights in or to the Software or Documents other than the right to use them in accordance with the terms of this Licence. You must maintain all intellectual property notices appearing on the Software, Documents or a Dongle and must not remove the same. You must notify AGL immediately in writing if you know of any circumstances that suggest that any person may have unauthorised knowledge, possession or use of the Software, Documents or a Dongle. You acknowledge that you have no right to access the Software in source code form.
6. Confidentiality: From time to time, one of us (Disclosing Party) may disclose Confidential Information to the other (Receiving Party). The Receiving Party must at all times, ensure the confidentiality of the Confidential Information and ensure that its officers, employees and agents do not disclose, communicate, copy or reveal for any purpose whatsoever the Confidential Information except as permitted under this Licence. If you have a licence to use Maptek Link you expressly permit AGL to disclose your name to Maptek Pty Ltd along with the identity of any additional end users (to the extent known) and the date on which the licence was issued. For the purposes of this clause, Confidential Information includes the Software, Documents, any Dongle(s), information relating to the customer account and any other information provided by Disclosing Party to Receiving Party as confidential, or which from its nature and content is, or would reasonably expected to be, confidential. The obligations under this clause will survive termination of this Licence.
7. Performance warranty: With respect to commercial release versions of the Software and excluding beta versions of the Software, 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 Documents; and
b. that the Documents correctly describe the operation of the Software in all material respects, for a period of 90 days from the date of installation of the Software (Warranty Period). Subject to the foregoing, the Software is licensed and any Dongle (if applicable) is provided to you “as is” and all representations or warranties (statutory, express or implied except any which may not lawfully be excluded) are expressly excluded, including any implied warranties of merchantability and fitness for a particular purpose.
8. If, within the Warranty Period, 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 Documents, we will, at our sole option, either repair and 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.
9. The warranty does not apply if the defect or fault in the Software results from you having:
a. altered or modified the Software; or
b. used the Software in breach of the terms of this Licence.
10. With respect to beta versions of the Software you acknowledge that the Software is provided on an as is basis without any warranty of any kind.
11. IP Warranty: AGL warrants that to the best of its knowledge the Software does not infringe any valid patents, trademarks, copyrights or trade secrets owned by a third party.
12. IP Infringement: You will promptly provide AGL written notice if you have knowledge of a claim or the likelihood of a claim by a third party that the Software infringes that third party’s intellectual property rights. If the Software becomes or, in AGL’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, AGL may in relation to commercial release version of the Software, at its option:
a. obtain for you the right to continue using the Software; or
b. replace or modify such Software so that it becomes non-infringing without substantially compromising its principal functions.
13. If neither 12(a) nor 12(b) are reasonably available to AGL or the claim relates to a beta version of the Software, then we may terminate this Licence upon written notice to you. Upon return of the Software or written confirmation that it has been uninstalled we will refund to you:
a. in the case of a licence for a fixed term, a prorated portion of the licence fee paid by you for the then current term (based on the portion of the then current term that would have occurred after the date of termination); or
b. in the case of a licence for a perpetual term, an amount calculated as the sum of (X) a prorated portion of the Support Fees paid by you for the then current support period (based on the portion of the such support period that would have occurred after the date of termination), plus (Y) the licence fees specified paid by you for your licence amortized on a straight-line basis over a 3 year period from delivery (for clarity, in the case of termination of the licence for a Perpetual Term at the end of the second year, (Y) would equal 1/3 of the original licence fees, and in the case of such termination after the end of the third year, (Y) would equal zero).
14. Limitation of liability: You acknowledge that the Software operates in a predictive manner relative to input of which AGL has no control over the collection, use or interpretation, and you agree to accept the entire risk as to the use and the results of the use of the Software in the terms of correctness, accuracy, reliability and performance. Furthermore, 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 Documents meet your requirements. AGL will not be liable to you under the law of tort, contract or otherwise for any:
a. indirect or consequential loss or damage,
b. loss of profits, sales, business or revenue;
c. business interruption;
d. loss of anticipated savings;
e. loss or corruption of data or information; or
f. loss of business opportunity, goodwill or reputation.
15. Subject to clause 16, our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise shall be limited to the total amount paid or payable by you for the Software in the 12 months prior to the event giving rise to the liability.
16. Nothing in this Licence shall limit any liability that cannot be excluded or limited by New Zealand law.
17. Default and Termination: AGL may terminate this Licence immediately by notice in writing to you if you breach a material term of this Licence or commit any persistent breach of your obligations under this Licence and fail to remedy the breach within 15 days after notice from AGL requiring the breach to be remedied. For the avoidance of doubt, material provisions of this Licence include any which relate to what you can or cannot do with respect to the Software and any provisions related to intellectual property rights or confidentiality.
18. Immediately upon termination of this Licence:
a. all rights granted to you under this Licence shall cease;
b. you must cease all activities authorised by this Licence;
c. you must pay to us any sums due to us under this Licence; and
d. you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to us (at our option) all copies of the Software and Documents and any Dongles that you have in your possession, custody or control and, in the case of destruction, certify to us that you have done it.
19. Audit: Upon reasonable advance written notice, AGL shall have the right to have an independent auditor (reasonably acceptable to you) verify your compliance with this Licence. You shall make your systems and all applicable books and records available for such inspection during normal business hours at your principal place of business. Any such audit shall be at AGL’s expense, unless it discloses a failure on your part to comply with the terms of this Licence, in which case you will reimburse AGL for such expenses.
20. Taxes: All payments made in relation to this Licence shall be made free of deduction or withholding and net of sales, use or other taxes or duties. In the event that you become liable to deduct or withhold an amount by way of tax or otherwise from payment of the fees due in relation to this Licence, or if we are required to collect any sales, use or other taxes from you, you shall pay such additional amount as will be necessary to ensure that the amount of the fees received by AGL equals the amount that would otherwise have been received in the absence of such deduction, withholding, tax or duty.
21. Notice: Any notice to be given in terms of this Licence must be made in writing, email or by facsimile transmission sent to the address notified by either party to the other from time to time. Any communication by email or facsimile transmission will be deemed to be received when transmitted to the correct email or facsimile transmission address of the recipient and any communication in writing will be deemed to be received when left at the specified address of the recipient or the day following the date of posting.
22. Force Majeure: AGL will not be liable to you for any delay or failure by AGL to perform its obligations hereunder if such delay or failure arises from cause or causes beyond the reasonable control of AGL.
23. Assignment: You may not assign or transfer this Licence or any of your rights or obligations under this Licence without the prior written consent of AGL.
24. Independent Contractors: The parties shall be independent contractors in their performance under this Licence, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
25.Entire agreement: Except with respect to any EAP agreement issued by us in relation to a beta version of the Software or any variations to these terms specifically agreed by us in writing, this Licence constitutes the entire agreement of AGL and you with respect to the subject matter hereof and supersedes any and all prior negotiations and agreements between us. This Licence and/or the Support Policies may be revised by AGL from time to time. By downloading or using any new version of the software, paying Support Fees or accepting any update or new module offered by AGL, you will be deemed to have agreed to, and will be bound by, all the terms and conditions of this Licence and the Support Policies in its and/or their then most current form. No variation to the terms of this Licence will be binding on AGL unless it is in writing and signed by both parties.
26. Contracting party: If you are downloading, installing or using BLOCKBUSTER® software and you are based in Africa (which means any of the countries and states within continental Africa including Egypt and Madagascar but excluding the Canary Islands, Ceuta, Madeira, Mayotte, Mellila, Plazas de Soberanía, Réunion Island, French Southern and Antarctic Lands, Saint Helena, Ascension and Tristan da Cunha, and the Pelagie Islands) then “AGL” means ARANZ Geo SA (PTY) Limited, a company incorporated in South Africa with registered number 2015/436519/07. In all other cases, “AGL” means ARANZ Geo Limited, a company incorporated in New Zealand with registered number 2319469.
27. Governing Law: This Licence is subject to the laws of New Zealand and you submit to the exclusive jurisdiction of the New Zealand courts.
Effective date: 7 February 2018