Tigermoth Software Licensing Agreement

Agreement


1 PREAMBLE

1.1. The Licensee has agreed to take a licence of software developed by the Licensor being the software specified in Schedule A of this Agreement.

1.2 The Licensor has the right to licence the software specified in Schedule A of this Agreement and agrees to do so subject to the terms and conditions within this Agreement.

2 DEFINITIONS AND INTERPRETATIONS

2.1 In this agreement, unless the context otherwise requires:

2.1.1 “Agreement” means this Agreement and includes all Schedules attached to it or incorporated in it by reference;

2.1.2 “Approved Uses” means the processing and modelling of forest description data from any source, including from agriculture and forest assets not owned or controlled by the Licensee, in support of the legitimate business of the Licensee;

2.1.3 “Automatic Termination Date” means the date at which the Agreement is automatically terminated if specified in Schedule C;

2.1.4 “Documentation” means user manuals (including those in electronic form on any media), handbooks, maintenance libraries, sample code, education materials and other publications containing specifications to be supplied in order to assist the use, operation or support of the Software as described in Schedule D;

2.1.5 “Effective Date” means the date at which the Agreement becomes effective as specified in Schedule C;

2.1.6 “Environment” means the Equipment, operating system and network protocols as described in Schedule E;

2.1.7 “Equipment” the computer equipment specified in Schedule E being the minimum specification suitable for running the Software;

2.1.8 “Installation Date” means the date by which installation of the Software must be completed, as specified in Schedule B;

2.1.9 “Licence Fees” means the fees detailed in Schedule C;

2.1.10 “Payment Schedule” means Schedule C containing the amounts, dates and conditions of payment for licences granted by or pursuant to this Agreement and for Licensor support services (if any) provided pursuant to this Agreement;

2.1.11 “Site” means the location(s) specified in Schedule B for delivery of the Software;

2.1.12 “Software” means the products specified in Schedule A in object code;

2.1.13 “Software Protection Key” means a key provided to the Licensee by the Licensor and used to protect the Software against unlicensed use;

2.1.14 “Updates” means new versions of the Software as they are released to the Licensee;

2.1.15 “Updates Fees” means the fees for Updates to be established by agreement between the Licensor and the Licensee.

2.2 For the purposes of interpretation and construction of this Agreement:

2.2.1 Words implying the singular or plural number include the plural and singular number respectively;

2.2.2 References to Clauses and Schedules are references to Clauses and Schedules in this Agreement;

2.2.3 Any Schedules, and the provisions and conditions contained in such Schedules, will have the same effect as if set out in the body of this Agreement. In the event of any conflict between the Schedules and the body of this Agreement, the provisions and conditions of the body of this Agreement will prevail;

2.2.4 Headings and marginal notes are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement;

3 SCOPE

3.1 In consideration of payment of the Licence Fees the Licensor grants to the Licensee a non-exclusive non-transferable license for one (1) end-user, to use the Software and Documentation for the Approved Uses.

3.2 The Licensor will provide the Software and Documentation and any Updates via the internet to the Licensee’s address in Schedule F.

3.3 For the purposes of this Agreement those entitled to use the Software and Documentation in conducting the business activities of the Licensee shall be the current and future employees of the Licensee that have been authorised by the Licensee to use the Software and Documentation for Approved Uses.

3.4 The Licensee agrees that they will only provide the Software to the employees of the Licensee whom are entitled to use the Software and Documentation as outlined and intended in Clause 3.3.

3.5 The Licensee shall not decompile, disassemble or reverse-engineer, or directly or indirectly allow or cause a third party to decompile, disassemble or reverse-engineer, the whole or any part of the Software or the whole of any part of the Software Protection Key.

3.6 In consideration of payment by the Licensee of the agreed applicable Updates Fee, the Licensor will grant to the Licensee a non-exclusive non-transferable licence to use the relevant Update, and the Licensee shall return to the Licensor all copies of the original Software or otherwise deal with all copies of the original Software in accordance with the Licensor’s directions. This Agreement will continue to apply in all respects to the relevant Update which shall be deemed to be the Software for the purposes of this Agreement.

3.7 The Licensee may not transfer, assign, lease, lend, sub-license or gift their rights under this Agreement without the prior written consent of the Licensor.

3.8 The Licensee may not use the Software for a bureau service or act as an Application Service Provider that allows a third party or parties to directly access or use the Software without the prior written consent of the Licensor, or as has been otherwise outlined in Schedule C. The Licensee may not enter into arrangements with a third party or parties to timeshare or rent the Software or use the Software on behalf of a third party or parties without the prior written consent of the Licensor, or as has been otherwise outlined in Schedule C.

4 CONSULTING SERVICES

4.1 The Licensor will, at the request of the Licensee, provide consulting services as mutually and contractually agreed between the Licensor and the Licensee, subject to Clause 4.2, Clause 4.3 and Clause 4.4.

4.2 In the first 12 month period of the License, the Licensor will provide to the Licensee zero (0) consulting services days. Each 12 month period thereafter the Licensor will provide to the Licensee zero (0) consulting services days. The obligations of Clause 4.2 shall not survive termination or cancellation of this Agreement. Additional associated consulting service days over and above these annual quantities will be on a mutually agreed basis between the Licensee and the Licensor.

4.3 The Licensee will pay to the Licensor any reasonable out-of-pocket expenses associated with fulfilling any associated consulting services provided for in Clause 4.1 and Clause 4.2. These are expenses such as, but not limited to, international air travel costs, accommodation expenses, meal expenses and any other such incidental out-of-pocket expenses directly related to the associated consulting services or as requested by the Licensee.

4.4 Consulting services beyond that provided for in Clause 4.2 are beyond the scope of this Agreement and, if provided, will be at the expense of the Licensee and at the agreement of the Licensor.

5 END-USER SUPPORT AND TRAINING

5.1 The Licensor acknowledges that there is a component of ongoing support of the Licensee that will regularly occur. Such support is covered by the License and Maintenance Fee associated with the Software. The commercial intent is to promptly respond to the Licensee’s problems and questions that are directly related to their use of the Software.

5.2 The Licensor will, at the request of the Licensee, provide assistance with the installation and the functional use of the Software by telephone or email.

5.3 The Licensor will deliver to the Licensee zero (0) half days of end-user Software training every six (6) months, delivered in group sessions to end-users at the Licensee’s office or a venue chosen at the discretion of the Licensee.

5.4 The Licensee will pay to the Licensor any reasonable out-of-pocket expenses associated with fulfilling end-user Software training detailed in Clause 5.3. These are expenses such as, but not limited to, international air travel costs, accommodation expenses, meal expenses and any other such incidental out-of-pocket expenses directly related to the delivery of end-user training.

5.5 The Licensor will make an end-user support and service system available to the Licensee to track requests for Software help and support.

6 CHARGES AND PAYMENTS

6.1 The amount payable (exclusive of any taxes) for the licensing of the Software is as detailed in Schedule C. Any additional taxes and duties will be payable by the Licensee, at the rate applicable at the time of supply. Any new tax or duty, other than income tax, shall be paid by the Licensee.

6.2 The Licensor shall invoice the Licensee for the Software supplied in accordance with Schedule C. Payment will be made by the Licensee on or before the 20th of the month following the month of the Effective Date. For the purpose of giving effect to Clause 6.3, non-payment of an invoice is deemed to have occurred if payment of an invoice supplied in accordance with Schedule C has not been made by the Licensee within 30 days of receipt of the invoice.

6.3 In the event of non-payment of an invoice supplied in accordance with Schedule C, the Licensor retains the right to protect the Software and Updates against continued use through the use of a Software Protection Key.

6.4 The Licensor shall only alter the Licence Fees or Updates Fees as defined in the Payment Schedule with the prior written consent of the Licensee.

6.5 Payment of any Updates Fees by the Licensee shall be at the time(s) agreed between the Licensor and the Licensee.

6.6 Subject to Clauses 4.4 and 6.1 and to any agreed variations or change requests, the fees and charges specified in this Agreement constitute the total charge to the Licensee.

7 DELIVERY AND INSTALLATION

7.1 The responsibilities of each party for delivery and installation of the Software, Updates and Documentation are as detailed in Schedule B.

8 CONFIDENTIALITY

8.1 Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this Agreement) the terms and conditions of this Agreement or any information which is confidential to the other party and which may have been provided to the Licensor by the Licensee for any purpose, including and not limited to end user support of the Software. The obligations of Clause 8.1 shall survive termination or cancellation of this Agreement.

8.2 The obligations of Clause 8.1 do not void or negate any other Confidentially Agreement(s) that may already exist between the Licensor and the Licensee at the Effective Date for any purpose.

9 PUBLICITY

9.1 Neither party will advertise or publicly announce any matter relating to the existence of this Agreement, without the other’s prior written consent, which will not be unreasonably withheld.

10 DOCUMENTATION

10.1 The Licensor will provide the Licensee with Software Documentation.

10.2 Amendments to the Documentation will be provided with each Update to the Software.

10.3 The Licensee acknowledges that the Documentation contains sufficient information for the proper use of the Software, except to the extent the Licensor has notified the Licensee of any omission or deficiency or of any variation which it considers necessary for the proper use of the Software.

10.4 Except as otherwise permitted by this Agreement, the Documentation is subject to the same restrictions on copying and modification as are imposed in respect of the Software and shall not be used by the Licensee except to assist in the normal operation of the Software.

11 WARRANTIES

11.1 The Licensor warrants that:

11.1.1 It has the right and authority to grant a licence for the Software supplied to the Licensee.

11.1.2 The Software, if properly installed and used in the Environment, will conform to its published specifications at the time the Software is supplied by the Licensor.

11.2 The Licensor shall take action within 30 days to correct any defect in the Software or the relevant Update, as the case may be, which is notified to the Licensor, provided that the Licensee has complied with all the Licensor’s recommendations and instructions concerning the installation and use of the Software or the relevant Update. This warranty is void if failure of the Software or the relevant Update, as the case may be, results from accident, abuse or misuse.

11.3 Notwithstanding the foregoing, the Licensor shall have no obligation to correct defects in the event that all or any part of the Software or the relevant Update, as the case may be, is modified by the Licensee without the prior written approval of the Licensor.

11.4 The above warranties are in lieu of, and the Licensor disclaims, all other warranties, express or implied, which may be lawfully excluded, including, but not limited to warranties of description, design, merchantability or fitness for a particular purpose.

11.5 The Licensor does not warrant that the Software is error free or that the use of the Software shall be uninterrupted or that the Software shall provide any function or be fit for any purpose not specified in the Documentation.

12 OWNERSHIP

12.1 All intellectual property rights which may subsist in the Software and the Documentation shall remain with the Licensor. Any intellectual property rights arising out of any modifications or alterations to the Software, whether authorised by this Agreement or not, and whether made by the Licensor, the Licensee or a third party, shall vest in the Licensor and this Agreement shall apply to the Software as modified or altered.

12.2 All intellectual property rights which may subsist in information of a proprietary or confidential nature provided by the Licensee to the Licensor for user support or incorporation in the Software shall remain with the owner of those intellectual property rights.

12.3 The parties shall execute all documents and do all acts and things reasonably required for the purpose of giving effect to Clauses 12.1 and 12.2.

12.4 Subject to Clauses 3.1 and 12.5, the Licensee shall not copy or reproduce the Software or the Documentation by any means or in any form without the Licensor’s prior written consent.

12.5 The Licensee may make copies of the Software for the purpose of backup and security. The Licensee shall acknowledge such copies as the property of the Licensor. The terms of this Agreement, with the necessary modifications, apply to these copies.

12.6 The Licensee shall ensure all copies of the Software bear notice of the Licensor’s ownership of copyright and a notice stipulating that the Software contains information confidential to the Licensor. The Licensee shall comply with any directions of the Licensor as to the form or content of such notices.

12.7 The Licensee shall treat as confidential, information relating in any way to the Software and the Documentation. The Licensee shall not, without the Licensor’s prior written consent, copy or disclose, or cause to be copied or disclosed, any such information to a third party. The Licensee may only make use of such information to the extent necessary to enable the Software to be used in a manner reasonably contemplated by the Licensor. The Licensee may only disclose such information to those of its employees by whom it is required to enable the Software and the Documentation to be used in a manner reasonably contemplated by the Licensor and only then subject to such employees acknowledging that such information is confidential to the Licensor and agreeing not to disclose that information to others and to protect that information as confidential.

12.8 The Licensor retains the right to protect the Software and Updates against unlicensed copying and use through use of a Software Protection Key.

13 INTELLECTUAL PROPERTY RIGHTS INDEMNITY

13.1 The Licensor will indemnify the Licensee against, and will at its cost defend or settle any claim, suit, action or proceeding (collectively called “Action”) brought against the Licensee to the extent that the Action is based on a claim that the Licensee’s use of the Software or the Documentation supplied by the Licensor constitutes a breach of any patent, copyright, trade secret or other proprietary right, provided that:

13.1.1 The Licensee fully co-operates with the Licensor in defending or settling the Action and makes its employees available to give statements, advice and evidence as the Licensor may reasonably request;

13.1.2 The Licensor is notified promptly in writing of any Action and is given complete authority and information required for the conduct of the defence or settlement of the Action;

13.1.3 The Licensor shall have the sole control of the conduct of any Action and all negotiations for its settlement or compromise.

13.2 In order to fulfil its obligations under Clause 13.1 the Licensor shall forthwith at its own expense either:

13.2.1 Obtain for the Licensee the legal right to continue using the Software or the Documentation or parts of the Software or the Documentation which are the subject of the Action; or

13.2.2 Replace the Software (or the infringing parts of the Software) with reasonably equivalent software.

13.3 The Licensee will indemnify the Licensor against, and will at its cost defend or settle any claim, suit, action or proceeding (collectively called “Action”) brought against the Licensor to the extent that the Action is based on a claim that the Licensor’s incorporation in the Software or the Documentation, at the Licensee’s request, of information supplied by the Licensee constitutes a breach of any patent, copyright, trade secret or other proprietary right, provided that:

13.3.1 The Licensor fully co-operates with the Licensee in defending or settling the Action and makes its employees available to give statements, advice and evidence as the Licensee may reasonably request;

13.3.2 The Licensee is notified promptly in writing of any Action and is given complete authority and information required for the conduct of the defence or settlement of the Action;

13.3.3 The Licensee shall have the sole control of the conduct of any Action and all negotiations for its settlement or compromise.

14 LIMITATION OF LIABILITY

14.1 The warranties in Clause 11.1 replace all other representations or warranties (statutory, express or implied) and all such representations and warranties (save any which may not lawfully be excluded) are expressly excluded, including, without limitation, the implied warranties of fitness for any particular purpose.

14.2 Neither party will under any circumstances be liable under the law of tort, contract or otherwise for any loss of profits or savings or goodwill or for any indirect or consequential loss or damage, however caused, on any theory of liability, arising out of or in connection with the performance or non-performance of this Agreement.

14.3 The Licensor’s liability to the Licensee arising out of any claim for damages for any cause whatsoever will under no circumstances exceed in aggregate the total amount of the sums actually paid by the Licensee to the Licensor under this Agreement for the goods or services which gave rise to the claim.

14.4 The Licensor shall not be under any liability to the Licensee or any third party claiming through the Licensee in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Software.

14.5 No action arising out of this Agreement may be brought more than two years after the party bringing the action became aware, or reasonably ought to have been aware, of the circumstances giving rise to the action.

15 TERMINATION

15.1 Either party may terminate this Agreement forthwith if the other party:

15.1.1 Assigns its rights or obligations under the Agreement otherwise than in accordance with Clause 20.1;

15.1.2 Enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver, or a receiver and manager, or statutory manager is appointed in respect of it;

15.1.3 Commits a breach of copyright or any other breach of intellectual property rights, or a breach of confidentiality.

15.2 If one party defaults in the performance of any of its obligations under this Agreement and:

15.2.1 The default is capable of being remedied, and, within thirty (30) days of notice by the non-defaulting party specifying the default, is not remedied; or

15.2.2 The default is not capable of being remedied,

15.2.3 The non-defaulting party may immediately terminate, or temporarily suspend the operation of this Agreement until the default is remedied, at its sole discretion.

15.3 The Licensor may terminate this Agreement by giving the Licensee written notice, provided the termination date of this Agreement is more than 3 months after the date at which the Licensee receives the written termination notice of Clause 15.3.

15.4 The Licensee may terminate this Agreement provided that all invoices supplied in accordance with Schedule C have been paid and by giving the Licensor written notice, provided the termination date of this Agreement is more than 3 months after the date at which the Licensor receives the written termination notice of Clause 15.4.

15.5 This Agreement will automatically terminate in accordance with the Automatic Termination Date of Schedule C unless the Licensor and the Licensee have agreed in writing to a novation of Schedule C by the Automatic Termination Date.

15.6 Upon termination of this Agreement the Licensee shall, at the Licensor’s option, return or destroy any copies of the Software, Documentation and Software Protection Keys in the possession or control of the Licensee.

16 FORCE MAJEURE

16.1 Neither party will be liable for any act, omission, or failure to fulfil its obligations under this Agreement to the extent that such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action after the date of this Agreement, fire, communication line failures, power failures, earthquakes or other disasters (called “Force Majeure”).

16.2 The party unable to fulfil its obligations due to Force Majeure will immediately:

16.2.1 Notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure; and

16.2.2 Use all responsible endeavours to avoid or remove the cause and perform its obligations.

17 WAIVER

17.1 No delay, neglect or forbearance by either party in enforcing against the other any provision of this Agreement will be a waiver, or in any way prejudice any right, of that party.

17.2 No right under this Agreement shall be deemed to be waived expect by notice in writing signed by both parties.

18 SEVERABILITY

18.1 If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of the Agreement will remain in full force and effect.

19 NOTICES

19.1 Any notice given pursuant to this Agreement will be sufficiently given if it is in writing and delivered, or sent by prepaid post or facsimile to the other party at the address as shown in Schedule F.

20 ASSIGNMENT

20.1 The Licensee shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of the Licensor which shall not be unreasonably withheld.

20.2 If the Licensor assigns or transfers its rights or obligations under this Agreement without the prior written consent of the Licensee, then the Licensee may terminate this Agreement without being subject to Clause 15.4 provided that all invoices supplied in accordance with Schedule C have been paid and by giving the Licensor written notice of termination.

21 AMENDMENTS

21.1 Any modification to or variation of this Agreement must be in writing and signed by authorised representatives of the Licensor and the Licensee.

22 SURVIVAL

22.1 The provisions of this Agreement which are capable of having effect after termination of this Agreement shall remain in full force and effect following the termination of this Agreement.

23 ENTIRE AGREEMENT

23.1 The parties acknowledge that this Agreement contains the whole of the contract and understanding between them. There are no conditions, warranties or other understandings affecting the arrangements between the parties other than those set out herein and this Agreement replaces all prior agreements and understandings with respect to the subject matter of this Agreement.

24 SUBJECT TO NEW ZEALAND LAW

24.1 The parties agree that this Agreement shall be governed by and construed according to the laws of New Zealand. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand for any disputes or proceedings arising out of or in connection with this Agreement.

24.2 The parties unconditionally and irrevocably waive their rights to object that New Zealand courts are not the most suitable forum for both parties’ interests and the ends of justice in proceedings related to this Agreement.

25 RESPECTIVE AGENTS

25.1 The Licensor and Licensee appoint as their agents for accepting service those persons named in Schedule F under the headings Licensor and Licensee respectively.

26 DISPUTES AND REMEDIES

26.1 The parties agree to use their best efforts to resolve any dispute which may arise under this Agreement through good faith negotiations. No party shall commence any litigation in relation to this Agreement unless it has first invited the chief executive of the other party to meet with its own chief executive for the purpose of endeavouring to resolve the dispute on mutually acceptable terms.

26.2 Any dispute arising under this Agreement which cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.

26.3 If the parties cannot agree a mediator within two working days of the notice, the mediator will be selected by the President for the time being of LEADR (Lawyers Engaged in Alternative Dispute Resolutions) or its equivalent.

26.4 The parties shall continue to perform their obligations under this Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.

26.5 Nothing in this clause shall preclude either party from taking immediate steps to seek urgent equitable relief before an appropriate court.

Schedules


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