1. Application Of Agreement
1.1 This Agreement applies to your use of EXpotential (as that term is defined below). By downloading, installing, accessing and/or using EXpotential:
- you agree to this Agreement, whether you have purchased EXpotential directly from EX, or through one of EX’s registered partners, or by any other party; and
- where you download, install, access, and/or use EXpotential on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.
1.2 If you do not agree to this Agreement, you must not download, install, access and/or use EXpotential.
2.1 In this Agreement:
Confidential Information means the terms and conditions of this Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, this Agreement. Intellectual Property owned by EX is EX’s Confidential Information.
Configuration means a software configuration for EXpotential created by EX, you or any other party, including all information stored within the EXpotential database or program folders for the purpose of the successful operation of EXpotential.
Documentation means the user and technical documentation for EXpotential provided by EX, and includes any update of the documentation.
EX means EXpotential Limited, company number 6613873.
EXpotential means the software supplied or made available to you by EX (and its resellers), including any Update and all Configurations.
EXpotential Edition means the EXpotential Edition licensed to you under this Agreement as set out in EX’s quote or proposal, or as selected by you when setting up an account to access and use EXpotential (as varied from time to time in accordance with clause 7.5).
Fees means the fees EX, or the Reseller, has quoted to you or as agreed otherwise in writing between you and EX or the Reseller (as the case may be), as may be updated from time to time in accordance with clause 7.7.
Intellectual Property Rights includes copyright, and all worldwide rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Reseller means an authorised EX reseller through whom you order EXpotential.
Update means a new version of EXpotential released or made available to you by EX.
You or your means you, or both you and the other person on whose behalf you are acting.
2.2 In this Agreement:
- clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
- words in the singular include the plural and vice versa;
- a reference to:
- a party to this Agreement includes that party’s permitted assigns;
- personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include EX, any Reseller or their respective personnel;
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit; and
- a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
- no term of this Agreement is to be read against a party because the term was first proposed or drafted by that party.
EX grants to you, and you accept, a non-exclusive and non-transferable licence for the duration of this Agreement to use EXpotential and the Documentation:
- solely for your internal business purposes;
- subject to the restrictions that apply to the EXpotential Edition you have purchased a licence to;
- during the term of the licence you have purchased; and
- on the terms and conditions of this Agreement.
4. Licence Conditions
4.1 You must:
- use EXpotential and the Documentation for lawful purposes only and must not copy (except for making copies for your own back-up or archival purposes), reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in EXpotential or the Documentation except:
- as expressly provided for in this Agreement; or
- to the extent expressly permitted by law;
- ensure EXpotential and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
- maintain all proprietary notices on EXpotential and the Documentation;
- not transfer, assign or otherwise deal with or grant a security interest in EXpotential, the Documentation or your rights under this Agreement;
- not challenge EX’s ownership of (including the Intellectual Property Rights in) EXpotential, the Documentation or any other item or material created or developed by or on behalf of EX under or in connection with this Agreement;
- on EX’s request, take such actions and execute such documents as EX may reasonably request in order to ensure that all Intellectual Property in EXpotential or any upgrades or developments of, or additions to, EXpotential, are transferred to and are vested in EX; and
- notify EX in writing immediately after you become aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of EXpotential or the Documentation.
4.2 You must:
- allow EX (or its representative) to conduct audits, from time to time, of your compliance with this Agreement. EX’s costs of those audits will be borne by EX unless material non-compliance with this Agreement is disclosed, in which case you must reimburse EX for the reasonable audit costs it incurs. EX is not liable for any costs you incur in connection with an audit. In conducting an audit, EX must:
- provide reasonable notice of the audit and only conduct it during normal business hours on working days; and
- comply with your reasonable security requirements.
Where you use EXpotential under a trial license:
- no Fees are payable in relation to EXpotential;
- you must not use EXpotential for the purposes of benefitting your business (until you purchase a license);
- you must purchase a licence to EXpotential if you wish to access and use EXpotential following expiry of a trial or for the purposes of benefitting your business;
- unless you purchase a licence to EXpotential following expiry of a trial, at the end of the trial period your right to access and use EXpotential will end and you must return to EX or destroy all copies of EXpotential, any Documentation and any information created as a result of your access to EXpotential during the trial period, in each case, in your possession or control.
- EX may, at its discretion, from time to time provide the Client with Updates.
- New versions of EXpotential that provide new features or additional functionality may, at EX’s discretion, be subject to payment of an additional fee.
- Given the ‘software as a service’ delivery model the latest updates will be available to you and EX has no obligation to support older versions of the product.
- You must pay the Fees for EXpotential to EX or the Reseller (as the case may be).
- EX or the Reseller will provide you with valid GST tax invoices. Fees due on a monthly basis will be invoiced monthly in advance and Fees due on an annual basis will be invoiced annually in advance.
- The Fees exclude GST, which you must pay on taxable supplies under this Agreement.
- You must pay the Fees:
- by the date set out in the invoice; and
- electronically in cleared funds without any set off or deduction except to the extent required by law. If you are required by law to make any deduction, you must pay EX or the Reseller (as the case may be) any additional amount that is necessary to ensure receipt by EX or the Reseller (as the case may be) of the full amount which EX or the Reseller would have received but for the deduction.
- On your request, EX or the Reseller will provide you with a quote for the Fees that would apply if you upgrade or downgrade the EXpotential Edition licensed to you. Unless otherwise set out in the quote, the quote is valid for 30 days from the date of issue. You can change the EXpotential Edition licensed to you on 30 days’ notice to EX or the Reseller, provided the notice is received by EX or the Reseller before the expiry of the quote. If the change involves an increase in Fees, prior to the change taking effect, EX or the Reseller will invoice you for, and you must pay, the increased Fees. If the change involves a decrease in Fees you will not be entitled to a refund of any Fees paid in advance and will remain liable to pay any Fees accrued prior to receipt, by EX or the Reseller (as the case may be), of your notice.
- EX or the Reseller may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by EX’s (or the Reseller’s) primary trading bank as at the due date (or if EX’s (or the Reseller’s) primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
- EX or the Reseller (as the case may be) may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate this Agreement on no less than 10 days’ notice, provided the notice is received by EX or the Reseller before the effective date of the Fee increase. If you do not terminate this Agreement in accordance with this clause, you are deemed to have accepted the increased Fees.
8. Intellectual Property
- From the date of creation or development, EX owns all Intellectual Property Rights in:
- EXpotential (including, to avoid doubt, the Configurations) and the Documentation; and
- any data collected through the use of EXpotential. This data will only be used for industry aggregation and industry benchmarking purposes. Confidentiality will be strictly adhered to as outlined in clause 9;
- any other item or material created, developed or provided by or on behalf of EX under or in connection with this Agreement; and
- any developments of, or additions to, EXpotential generated by you.
- You must provide EX with a copy of all Configurations (or other developments of EXpotential) created by you or on your behalf as soon as is practicable following a request from EX.
- If you provide EX with ideas, comments or suggestions relating to EXpotential or the Documentation (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material enhancements, modifications or derivative works), are owned solely by EX; and
- EX may use or disclose any feedback for any purpose.
- If at any time an IP Claim is made, or in EX’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, EX may (at EX’s option):
- obtain for you the right to continue using the items that are the subject of the IP Claim; or
- modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing.
- Each party agrees that, unless it has the prior written consent of the other party, it will:
- keep confidential at all times (and not disclose) the Confidential Information of the other party. For the avoidance of doubt data collected by application of the EX software can be used by EX for industry aggregation and industry benchmarking purposes provided you, and your employee(s) confidentiality is protected; and
- ensure that any personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 9.1.
- The obligations of confidentiality in clause 9.1 do not apply to any disclosure:
- strictly necessary for the purpose of performing this Agreement or exercising a party’s rights under this Agreement (provided that the disclosing party must procure that any person to whom Confidential Information is disclosed does not further disclose that information);
- required by law (including under the rules of any stock exchange);
- of Confidential Information which:
- is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
- was rightfully received from a third party without restriction or without breach of this Agreement; or
- by EX if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that EX enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
- EXpotential is provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of EXpotential is with you. If EXpotential proves defective, you assume the cost of all necessary servicing, repair or correction.
- Without limiting clause 10.1, EX makes no representation concerning the quality of EXpotential, and does not promise that EXpotential will be error-free, bug-free, or will operate without interruption.
- You agree and represent that you are acquiring EXpotential, and entering this Agreement, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of EXpotential or this Agreement.
- To the maximum extent permitted by law:
- you access and use EXpotential at your own risk; and
- EX is not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection with this Agreement, EXpotential, or your access and use of (or inability to access or use) EXpotential. This exclusion applies regardless of whether EX’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
- To the maximum extent permitted by law and only to the extent clause 11.1 does not apply, the maximum aggregate liability of EX under or in connection with this Agreement or relating to EXpotential, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited (at EX’s option) to:
- remedying, repairing or replacing EXpotential; and/or
- refunding the Fees paid by you in the 12 month period preceding the first event giving rise to liability.
- Without limiting clause 11.1, EX is not liable to you under or in connection with this Agreement for any:
- loss of profit, revenue, savings, business, data and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
- This Agreement will terminate, and EXpotential will be electronically disabled, on expiry of the term of the licence you have purchased, unless you renew your licence. EX is under no obligation to renew your licence. The Fees may change without notice at any time between the initial purchase of a licence and when you wish to renew a licence.
- You may terminate this Agreement at any time on no less than 30 days’ notice to EX or the Reseller.
- EX may, by notice to you, immediately terminate this Agreement if you are in breach of this Agreement:
- Termination of this Agreement does not affect each party’s rights and obligations accrued before the termination date, including your obligations to pay all Fees payable before termination.
- No compensation is payable by us to you as a result of termination of this Agreement for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
- EX is not liable to you for any failure to perform its obligations under this Agreement to the extent caused by events beyond its reasonable control.
- Where you are (or you are entering into this agreement on behalf of) an entity, that entity agrees to procure that any personnel of that entity with access to EXpotential, the Documents, any Configurations or any other development of, or additions to, EXpotential will comply with this agreement as if references to that entity were to the relevant member of personnel.
- You agree that EX may use your name and logo in its marketing materials with your prior approval, such approval not to be unreasonably withheld or delayed.
- You may not assign or transfer any right or obligation under this Agreement without EX’s prior written approval. You remain liable for your obligations under this Agreement despite any approved assignment or transfer. Any change of control of you is deemed to be an assignment for which EX’s prior written approval is required under this clause. In this clause change of control means any transfer of shares or other arrangement affecting your or any member of your group which results in a change in the effective control of you.
- Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.
- Any variation to this Agreement must be in writing and signed by both parties.
- This Agreement sets out everything agreed by the parties relating to EXpotential and supersedes and cancels anything discussed, exchanged or agreed prior. The parties have not relied on any representation, warranty or agreement relating to EXpotential that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
- This Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement.