Licence Agreement Terms and Conditions
TERMS OF THIS AGREEMENT
1.1 Definitions: In this Agreement, unless the context requires otherwise:
Terms and Meaning:
Agreement: the Montoux Purchase Agreement and the schedule to it, and these Terms and Conditions.
Application: the Montoux “Product Development Application(s)” software as described in the Agreement schedule, and as updated from time to time by Montoux in its discretion and made available via the Site.
Charges: the Initial Licence Fee, and any other charges specified in the Schedule.
Confidential Information: any and all information (whether that information is oral, written or embodied in any other physical or electronic form) which is obtained directly or indirectly from another party under or in connection with this Agreement, and which is marked or stated to be confidential or which by its nature is reasonably intended to be confidential.
Customer Data: all Modelling Specifications, Input Data and Output Data.
Input Data: all data the Customer inputs to its models being run on the Application, prior to that data being processed by the model.
Intellectual Property: any and all intellectual and industrial property rights throughout the world including rights in respect of, or in connection with:
a: copyright (including future copyright and rights in the nature of, or analogous to, copyright);
b: trademarks; inventions (including patents);
c: any confidential information;
d: service marks; and
whether or not existing now and whether or not registered or registrable, and includes any right to apply for the registration of those rights and all renewals and extensions.
Modelling Specifications: the information, formulae and specifications of the models which the Customer wishes to run using the Application, as provided by the Customer to Montoux.
Montoux Data: any processed or aggregated information or materials created by Montoux from or using Customer Data and/or data from other customers of Montoux.
Output Data: the output data, information or results produced from when the Customer’s models are run in respect of the Input Data using the Application.
Permitted User: an individual who has been authorised to access and use the Application on behalf of the Customer in accordance with this Agreement and is otherwise subject to the access restrictions set out in the Schedule.
Site: the website(s) operated by Montoux for the Customer at one or more urls notified to the Customer by Montoux.
1.2 Interpretation: In this Agreement, unless the context requires otherwise:
1.2.1 clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
1.2.2 words importing the singular include the plural and vice versa; and
1.2.3 a reference to:
188.8.131.52 a party includes that party’s permitted assigns;
184.108.40.206 $ or dollars is a reference to New Zealand currency;
220.127.116.11 personnel includes officers, employees, and contractors;
18.104.22.168 including and similar words do not imply any limitation; and
22.214.171.124 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.
1.3 Term: These Terms commence on the Commencement Date of the applicable Montoux Agreement, and will continue for the period in accordance with the associated charges schedule, which we may change from time to time.
1.4 Charges: By accessing and using the Application, you agree to pay the Charges. You must pay the Charges in advance of each period to which the Charges relate.
2. RIGHT TO USE APPLICATIONS
2.1 Right to Use: Montoux gives the Customer the right to access and use the Application(s) via the Site on the terms and conditions of this Agreement. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
2.2 Updates to Application(s): The Customer accepts and agrees that Montoux may amend, update, and/or modify the Application(s) at any time in its discretion. The Customer’s rights under this Agreement will continue to apply to the Applications as modified and updated by Montoux.
2.3 No joint accounts or sub-licensing: Each organisation using the Application(s) must register as a separate Customer except for authorised Permitted Users of a Customer who are guest users subject to the restrictions set out in the Schedule. No joint accounts or accounts for combined firms or practices are permitted. A Customer is not permitted to sub-license or permit any other party (including any affiliate or related company, as defined in the New Zealand Companies Act 1993) to exercise its rights under this Agreement.
3. CUSTOMER’S USE OF APPLICATIONS
3.1 Compliance: The Customer must comply with all operating procedures, instructions or acceptable use policies notified by Montoux from time to time.
3.2 Permitted Users: No person may use or attempt to use the Application(s) unless they are a Permitted User of a registered and approved Customer.
3.3 Authorisation of Permitted Users: The Customer may authorise Permitted Users to access and use the Application(s), in accordance with the other restrictions specified in the Schedule. Each Permitted User of the Customer must be within the organisational branch or division specified in the Schedule (if any). Permitted Users may be employees, contractors or consultants of the Customer, but must not be competitors of Montoux. To authorise a Permitted User, the Customer must submit each proposed Permitted User’s name and other information reasonably required by Montoux.
3.4 Status of Permitted Users: The Customer must ensure that each Permitted User complies with this Agreement and any other reasonable condition notified to the Customer by Montoux. A breach of this Agreement by a Permitted User will be deemed to be a breach by the Customer. In addition (and without prejudice) to its rights against the Customer, Montoux may suspend, restrict or terminate any Permitted User’s access to the Application(s) if it has reasonable grounds to suspect any breach of this Agreement by that Permitted User.
3.5 Permitted use: Each Permitted User may only use the Application(s) to the extent expressly permitted in this Agreement.
3.6 Deletion of Customer Data: The Customer must ensure that all Input Data and Output Data is deleted from the Applications once it is no longer necessary to retain it. On termination of this Agreement, Montoux will delete all Customer Data that has not already been deleted within 60 days of the date of termination or expiry.
3.7 General purposes: The Customer must only use the Application(s) for its business purposes.
3.8 Acceptable use: The Customer must not use the Application(s) for any illegal purpose or activities, or for the transmission or storage of material which is unlawful, defamatory, harassing, invasive of any individual’s privacy, abusive, harmful, threatening, vulgar, pornographic, obscene, or otherwise objectionable, or offends religious sentiments, promotes racism, or contains viruses, or which may infringe the Intellectual Property of any third party.
3.9 Specific restrictions: When accessing and using the Application(s), the Customer must:
3.9.1 not attempt to undermine the security or integrity of Montoux’s computing systems or networks or, where the Application(s) is hosted by a third party, that third party's computing systems and networks;
3.9.2 not use, or misuse, the Application(s) in any way which may impair the functionality of the Application(s) or Site, or other systems used to deliver the Application(s) or impair the ability of any other user to use the Application(s) or Site;
3.9.3 not attempt to view, access or copy any materials or data other than that its Customer Data or which Montoux notifies the Customer it is authorised to access;
3.9.4 not transmit, or input into the Application(s) or the Site, any files that may damage any other person's computing devices or software;
3.9.5 not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Application(s) or to operate the Site (except as is strictly necessary to use either of them for normal operation) nor communicate the same to any person nor directly or indirectly allow or cause a third party to do so; and
3.9.6 notify Montoux if it has knowledge of the existence of any circumstance that may suggest that a person may have unauthorised knowledge, possession or use of any part of the Site or the Application(s).
3.10 Consequences of unauthorised use: If there are reasonable grounds to believe that the Customer has engaged in any unlawful or unauthorised activity, has used the Application(s) beyond the scope of its authorisation or that the Customer may be in breach of any of the restrictions in this clause 3 or any other clause of this Agreement, Montoux may take one or more of the following actions in its absolute discretion:
3.10.1 limit or suspend the Customer’s access to the Application(s) or any part of the Application(s);
3.10.2 terminate this Agreement immediately by notice to the Customer in writing; and/or
3.10.3 delete, edit or remove any of the relevant material or information.
3.11 Security vulnerabilities: If the Customer becomes aware of any security vulnerability in respect of the Application(s), it must promptly provide Montoux with details of such vulnerability and shall not disclose the existence or details of that vulnerability to any third party without Montoux’s prior written consent.
4. USE OF CUSTOMER DATA AND MONTOUX DATA
4.1 Other use of Customer Data: Montoux must use best efforts to keep all Customer Data held on the Application confidential and not to disclose the Customer Data to third parties except:
4.1.1 to service providers working with Montoux on the operation and ongoing development of the Application and the Site;
4.1.2 in relation to the proposed purchase or acquisition of the business or assets of Montoux; or
4.1.3 where required by law or any court, or in response to a request by a legitimate law enforcement agency.
4.2 Backups of Customer Data: Montoux will take standard industry measures to back up a reasonably current version of the Customer Data stored on the Application for the purposes of disaster recovery and system outages affecting the Application or the Site. The Customer acknowledges that Montoux will not retain back-up copies of any Customer Data previously entered or stored on the Application other than the version subject to the most recent disaster recovery back-up.
4.3 International transfer of Customer Data: The Customer agrees that Montoux may store Customer Data (including any personal information) in servers of its service providers, which may be located in a different country to the Customer, and may access that Customer Data (including any personal information) in either that country, New Zealand or the location of the Customer from time to time.
5. INTELLECTUAL PROPERTY
5.1 The Application and the Site: All existing and future Intellectual Property in the Application and the Site, including any modification, enhancement or derivative work made in relation to the Application or the Site (whether created by Montoux or a third party), or any data or material generated by Montoux from the Customer Data (such as Montoux Data) will be owned solely by Montoux and/or its licensors (if any). To avoid doubt, all Intellectual Property in any improvements, modifications, enhancements or derivative works of the Application created by Montoux in the course of providing the Modelling Services are owned solely by Montoux.
5.2 Customer Data: The Customer will own all Intellectual Property in the Customer Data. Except as set out in clause 5.1, all Intellectual Property in any improvements, modifications, enhancements or derivative works of the Customer Data created by Montoux in the course of providing the Modelling Services are owned solely by the Customer. The Customer grants Montoux a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, copy, modify, make available and communicate the Customer Data for any purposes in connection with the operation and development of the Application and use of Customer Data pursuant to this Agreement (including Montoux’s use of Customer Data and Montoux Data in accordance with clause 2).
5.3 Indemnity: The Customer indemnifies Montoux against any liability, claims and costs (including the actual legal fees charged by Montoux’s solicitors) arising from any claim by a third party that Montoux’s use of any Customer Data or provision of the Modelling Services:
5.3.1 infringes a third party’s Intellectual Property or privacy rights;
5.3.2 is defamatory, objectionable, obscene or harassing;
5.3.3 is unlawful in any way; or
5.3.4 is otherwise in breach of this Agreement.
5.4 Feedback: To the extent the Customer provides feedback to Montoux in respect of the Application, all Intellectual Property in that feedback shall be owned by Montoux and the Customer assigns all such Intellectual Property in that feedback to Montoux.
6. WARRANTIES AND ACKNOWLEDGEMENTS
6.1 Information stored on Application: The Customer warrants that it has all rights and has obtained all permissions necessary to disclose any Customer Data to Montoux and for Montoux to use that information in accordance with this Agreement.
6.2 Consumer guarantees: The Customer warrants and represents that it is acquiring the right to access and use the Application for the purposes of a business and that, to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Application or the Site to the Customer.
6.3 Compliance with laws: The Customer warrants that it will comply with all applicable laws in respect of its use of the Application and information created by or derived from the Application, including all applicable laws in respect of the use of personal information of individuals.
6.4 No warranties about Application: Montoux gives no warranty in respect of the Application, which is provided “as is”. Without limiting the above, Montoux does not warrant that the Application will meet the Customer’s requirements, will be uninterrupted or error free, will be free from defects or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded to the extent permitted by applicable law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.5 Customer responsibility: The Customer acknowledges that the Application is merely one information tool which can be used to assist in the computation of mathematical models, in conjunction with other sources of information and tools. It remains the Customer’s responsibility to:
6.5.1 review, interpret and verify all Modelling Specifications in respect of the particular models that the Customer runs using the Application, and all Output Data created by or derived from the Application; and
6.5.2 make its own decisions, including any decisions in respect of financial or economic planning with reference to the information generated by the Application and all other relevant sources of information.
The Application must not be used as a substitute for the professional judgement of a qualified analyst.
7.1 Termination for cause: Either party may terminate this Agreement immediately by notice in writing if a party:
7.1.1 is in breach of this Agreement and the breach is not capable of being remedied; or
7.1.2 is in breach of this Agreement and, if the breach is capable of being remedied, has not remedied the breach within 10 working days of receiving notice of the breach; or
7.1.3 becomes insolvent, goes into liquidation or has a receiver or manager appointed over any of its assets or if the Customer makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.
7.2 Accrued Rights: Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.
8. CUSTOMER’S RIGHTS FOLLOWING TERMINATION
Within 30 days of termination of this Agreement for any reason, the Customer may request a copy of any of its Customer Data stored on the Application. If Montoux receives a request within this time it must promptly supply the Customer with a copy of that Customer Data in electronic form such as, but not exclusive to, CSV or text file. Montoux does not warrant that the format of that Customer Data will be compatible with any other software or application.
9.1 Montoux is agent: The Customer agrees that except as set out in clause 9.3, in collecting, holding and processing personal information through the Application, Montoux is acting as an agent on behalf of the Customer for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy law. Montoux must hold and process any personal information in accordance with the Customer’s instructions as set out in this Agreement or as otherwise agreed in writing. The Customer must ensure such instructions and information complies with the New Zealand Privacy Act 1993 and any other applicable privacy law.
9.2 Consents and notices: Without limiting clause 9.1, the Customer must notify and obtain any applicable consents from individuals in respect of Montoux’s use of Customer Data as set out in clause 4.
9.3 Montoux is responsible: Despite clause 9.1, Montoux is responsible (subject to the Customer’s compliance with clause 9.1) for its use of Montoux Data and for compliance with the Privacy Act 1993 and any other applicable privacy law in respect of that use of Montoux Data.
10. CONSENT TO EMAILS AND SMS
The Customer agrees to receive emails and/or SMS messages from Montoux with updates and information about the Application as well as information and offers about its other products and services.
11.1 Customer indemnity: The Customer indemnifies Montoux against all damages, losses and expenses of any kind (including the actual legal fees charged by Montoux’s solicitors) arising out of any third party claim against Montoux in connection with the use of the Application or any information created by or derived from the Application by the Customer, including any claim by any third party in connection with:
11.1.1 reliance by any party on information created by or derived from the Application, to the extent that that information is derived from information, formulae and/or specifications input into the Application by or on behalf of the Customer; and
11.1.2 any failure by the Customer to comply with any applicable laws.
11.2 Montoux indemnity: Montoux shall defend or settle any suit or proceeding brought against the Customer to the extent that such suit or proceeding is based on a claim that the use of the Application by the Customer within the terms of this Agreement constitutes an infringement of a third party’s copyright. The indemnity in this clause is dependent upon:
11.2.1 Montoux being notified promptly in writing of the suit or proceeding;
11.2.2 the Customer not prejudicing or settling any such claim; and
11.2.3 Montoux being given complete authority and information required for the defence of same. In such cases Montoux shall pay all damages and costs awarded against the Customer.
If in Montoux’s opinion the suit or proceeding cannot be settled or avoided by modification, substitution or replacement, Montoux may, upon 30 days’ written notice, terminate this Agreement, remove the infringing item and, despite Charges Non-Refundable, refund the amount paid by the Customer for that item in excess of a reasonable fee for past use. To the extent permitted by law, this clause states the entire liability of Montoux with respect to infringement of any Intellectual Property.
11.3 Status of Montoux indemnity: Clause 12.5 shall not apply to limit the indemnity provided in clause 11.2.
12. LIMITATION OF LIABILITY
12.1 Liability: Despite any other provision below, Montoux’s liability for personal injury or death caused by Montoux’s negligence is limited to $1,000,000.
12.2 Liability for modelling results: Subject to clause 12.1, Montoux will not under any circumstances be liable to the Customer or any third party in respect of the acts or omissions of the Customer in:
12.2.1 developing the Modelling Specifications which comprise the particular mathematical models the Customer runs using the Application or instructing or directing Montoux to implement any Modelling Specifications in respect of the Application; or
12.2.2 using any information created by or derived from the Application, including any decisions in respect of financial or economic planning, each of which remain the sole responsibility of the Customer.
12.3 Excluded losses: Subject to clause 11.1, Montoux will not under any circumstances be liable for any of the following in respect of this Agreement, the Application, the Site or any modelling services, however they arise, and even if the event was foreseeable or the possibility had been brought to the attention of Montoux:
12.3.1 loss of profit;
12.3.2 loss of use of the Application;
12.3.3 loss of any data, including Customer Data;
12.3.4 loss of opportunity;
12.3.5 loss of revenue;
12.3.6 loss of contracts; or
12.3.7 loss of business.
12.4 Indirect loss and loss caused by another: Subject to clause 12.1, Montoux will not be liable for:
any consequential indirect or special damage or loss of any kind; or
any failure to comply with this Agreement, caused by the actions or omissions of the Customer, its servants, agents or Permitted Users or any other persons whatsoever.
12.5 Overall limits on liability: Subject to clause 12.1:
12.5.1 the total liability of Montoux in respect of any single claim arising under or in connection with the Agreement, the Application, or the Site will not in any circumstances exceed 120% of the total Charges paid by the Customer under the Agreement in the 12 months prior to the event giving rise to liability;
12.5.2 the total aggregate liability of Montoux in respect of all claims arising under or in connection with the Agreement, the Application, the Site and the Modelling Services will be limited to 120% of the total Charges paid by the Customer to Montoux under the Agreement;
12.5.3 Montoux will not be liable to the Customer in respect of any claim in respect of which proceedings are not filed within 2 years of the events giving rise to the claim; and
12.5.4 Montoux will not be liable to the Customer for any failure to comply with the Agreement or delay in complying with the Agreement to the extent caused by events beyond the reasonable control of Montoux.
12.6 Separate limitations: Each of the limitations and exclusions of liability set out in this clause 12 is a separate limitation or exclusion and applies regardless of whether such liability arises in contract, tort (including negligence) or otherwise, subject only to clause 12.1. To the extent any particular limitation or exclusion is not permitted under applicable law, that particular limitation or exclusion will be deemed not to apply but will not affect any of the remaining limitations or exclusions under this clause.
13.1 Rights of third parties: No person other than the Customer and Montoux has any right to a benefit under this Agreement or will have any right to enforce this Agreement.
13.2 Waiver: All of Montoux’s rights will remain in full force despite any delay in enforcement. Montoux will not be deemed to have waived any right unless that waiver is in writing and signed by a duly authorised officer of Montoux. Any waiver will apply only to the particular matter in respect of which it is given.
13.3 Assignment: The Customer must not assign or purport to assign (whether in whole or in part) its interest under this Agreement without the prior written consent of Montoux. Any transfer of shares, issuing of new shares or other arrangement which results in a change in effective control of the Customer will be deemed to be an assignment for the purposes of this clause 13.3. Montoux may assign its rights and obligations under this Agreement (and may transfer its shares, issue new shares or make other arrangements) at any time.
13.4 Subcontracting by Montoux: Montoux may subcontract any of its rights or obligations under this Agreement at any time, including any hosting of the Application or Customer Data.
13.5 Entire agreement: This Agreement expresses the complete agreement between the Customer and Montoux with respect to the Application. There has been no representation made by either party to the other except as expressly set out in this document.
13.6 Notices: Any notice to be given pursuant to this Agreement must be in writing addressed to the party to whom it is given, must be left at, or sent by e-mail, facsimile transmission or pre-paid airmail post to, the address of that party as it may from time to time notify to the other and will be deemed to be served on the day so left or transmitted by e-mail or facsimile machine or on the 5th day after it is so posted.
13.7 Severability: If any provision of the Agreement is, or becomes, unenforceable, illegal or invalid for any reason, the Agreement will remain in full force apart from that provision which will be deemed deleted.
13.8 Governing Law and Jurisdiction: This Agreement and the Customer’s use of the Application will be governed by, and construed in accordance with, the laws of New Zealand. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement. Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been bought in an inconvenient forum, where that venue falls within this clause.