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1. |
Definitions and Interpretation
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1.1. |
"Accept" or "Acceptance" shall be deemed to occur when Licensee
signs and returns the EDIS Application Form.
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1.2. |
EDIS means EDIS Technologies Limited.
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1.3. |
"Commencement Date" means the date upon which Licensee accepts
this Licence.
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1.4. |
"Implementation Partner" means any person that Licensor
engages to provide services to Licensee, including the services referred to in clause
4.4.
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1.5. |
"Licence" means this Software Licence between Licensor and
Licensee.
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1.6. |
"Licensee" means the company, government department, state
owned enterprise, partnership or other person in respect to whom Licensor is granting
this Licence to use the Software in accordance with the terms herein.
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1.7. |
"Licensor" means EDIS Technologies Ltd.
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1.8. |
“Settlement Fee” means the fee that Licensor charges the
buyer and the seller to effect an e-commerce bank settlement using the Software.
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1.9. |
"Software" refers to the full range of business-to-business
e-commerce applications developed by Licensor and comprising The EDIS Solution.
"Software" also includes any relevant manuals and other documentation. Finally,
"Software" includes any "fixes", updates and upgrades provided to Licensee pursuant
to clause 4.1.
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1.10. |
"Transaction Fee" means the fee that Licensor
charges Licensee to effect an e-commerce transaction using the Software.
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2.0. |
The Licence
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2.1. |
Licensor is the exclusive owner of the Software.
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2.2. |
This Licence grants Licensee the non-exclusive, non-transferable,
right to use the Software strictly in accordance with the terms herein.
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2.3. |
Subject to Licensee paying the applicable Transaction Fees
on a timely basis, Licensee may grant access to as many users within its own organisation
or company as it wishes, and it may install the Software on as many computers as
it wishes. There are no restrictions on the number of concurrent users of the Software.
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3. |
Licence Fees
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3.1. |
Licensor does not charge an initial licence fee. Instead,
it charges a Transaction Fee. Refer to Licensor's current fee schedule.
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3.2. |
Subject to any specific written arrangement with Licensee
covering fees, Licensor may change its fee schedule at any time upon 30 days notice.
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3.3. |
To use the Software, Licensee must pay the Transaction Fees
on a timely basis. If Licensee does not pay such fees by the due date specified,
Licensor may suspend Licensee's user privileges and deny it access to the Software.
Licensee accepts full liability for any loss, damage, cost or inconvenience suffered
by Licensee, its suppliers and customers resulting from the denial of access in
these circumstances.
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3.4. |
Licensor will invoice Licensee monthly in arrears for Transaction
Fees and Settlement Fees. Payment will be debited to Licensee's nominated bank account
no less than five business days after the date of the invoice.
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3.5. |
The Software is preset so that the party who is the seller
pays the full amount of the Transaction Fees. However, the Software may be configured
to split the Transaction Fees between the seller and the buyer in such proportion
as they may agree. In the event of any dispute between the seller and the buyer
concerning the payment of Transaction Fees, Licensor shall have the right to recover
the full amount of such Transaction Fees from the seller without inquiring into
the merits of such dispute.
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4. |
Licensor's Obligations
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4.1. |
Licensor shall provide software "fixes", updates and upgrades
at no cost to Licensee.
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4.2. |
Licensor shall provide a "help desk" service at no cost
to Licensee. Licensee may phone Licensor's help desk to obtain technical support
and trouble shooting advice.
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4.3. |
Licensor shall provide two levels of training at no cost
to Licensee. The first level involves comprehensive on-line training by accessing
the software’s help files or by logging on to Licensor's website. The second level
involves a call to Licensor's help desk. Licensor will provide on-site training
at a separate charge upon request.
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4.4. |
Licensor shall provide installation, integration, implementation
and maintenance services to Licensee, upon Licensee's request. Licensee shall bear
the reasonable cost of such services. Licensor may contract with an Implementation
Partner to provide these services.
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4.5. |
Licensor shall use its reasonable endeavours to provide
a secure network over which e-commerce can be transacted.
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4.6. |
Licensor will not disclose any confidential information relating to Licensee or its transactions with any third party, except EDIS and the Implementation Partner.
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5. |
Licensee's Obligations
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5.1. |
Licensee shall not: (i) Copy, reproduce, translate, adapt,
vary or modify the Software; (ii) disassemble, decompile or "unlock", reverse translate,
or in any manner decode the Software for any reason whatsoever; (iii) provide or
otherwise make available the Software in any form to any person without Licensor's
written consent; (iv) rent, lend or lease the Software; (v) transfer the Software
to any other person under any circumstances without Licensor's written consent;
(vi) attempt to bypass or circumvent any security procedures applicable to the Software;
(vii) take any action that would cause injury to Licensor's intellectual property
rights in the Software or that would deprive Licensor of the fees to which it is
entitled; and (viii) commit, suffer or permit any act that infringes Licensor's
copyright and intellectual property rights in the Software. All of the foregoing
obligations shall survive the termination of this Licence.
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5.2. |
Licensee shall supervise and control the use of the Software
in accordance with the terms of this Licence. Licensee shall ensure its employees,
subcontractors or agents who have authorised access to the Software are made aware
of the terms of this Licence and comply therewith. Licensee shall maintain safe
custody of the Software.
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5.3. |
It is Licensee's responsibility to back-up its data in accordance
with best industry practice. Licensor accepts no responsibility for lost or corrupted
data, regardless of the cause.
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5.4. |
In the event that Licensee discovers a fault with the Software,
it should notify Licensor as soon as possible and in no event later than five days
from the date of discovery.
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5.5. |
Licensor, EDIS and any Implementation Partner need to exchange
information about Licensee and its transactions. This may be necessary to facilitate
Licensee's use of the Software. Licensee expressly authorises and consents to the
use and exchange of such information by and among Licensor, EDIS and such Implementation
Partner for the purposes intended by the Software.
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5.6. |
Licensee will take reasonable care to prevent unauthorised
access to the Software.
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5.7. |
Licensee shall bear the cost of its telecommunications charges,
including connection charges imposed by its Internet service provider.
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6. |
Important Disclaimers
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6.1. |
Licensor has used its best endeavours to develop Software
that is stable and reliable. Licensor cannot warrant that the Software will be compatible
with every computer and every operating environment. It is Licensee's responsibility
to ascertain whether the Software is compatible with its computer and operating
environment.
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6.2. |
The Software is licensed "as is" and without warranties
as to its performance, merchantability or fitness for purpose. To the extent allowed
by law, Licensor disclaims all liability, whether in contract or tort, for any loss
or damage arising from Licensee's use of the Software, or from the termination of
such use pursuant to this Licence. Such disclaimer applies to direct, indirect,
special and con-sequential damages including: Loss of profit, business revenue or
goodwill; loss or corruption of data and the restoration thereof; loss of operations
through system failure or downtime; or failure to achieve the benefits or cost savings
anticipated. Licensor disclaims all liability for errors and omissions arising from
Licensee's use of the Software. Licensor further disclaims all liability for errors
or omissions in, or the corruption of, data provided, entered or exchanged. Licensee
agrees to use the Software entirely at its own risk. Licensee indemnifies Licensor
against any damages, costs, and liability that may result from Licensee's use of
the Software.
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6.3. |
Licensor acts purely as an enabler in e-commerce transactions.
Licensor accepts no responsibility for a default, including non-payment, delivery
delay or failure by either the buyer or seller in any such transactions.
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6.4. |
In the event of a default by either the buyer or seller in an e-commerce transaction
(e.g. a dishonoured payment), Licensor may recover any service charges and other
costs incurred as a result of such default from either the buyer or the seller,
whichever Licensor may choose in its sole and absolute discretion, and regardless
of which party committed the default.
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6.5. |
Licensor accepts no liability for security breaches beyond
its reasonable control, including without limitation, security breaches resulting
from computer hackers, unlawful entry, unauthorised entry, theft, disgruntled employees
and other fraudulent acts.
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6.6. |
It is in the nature of e-commerce that, on rare occasions,
a transaction or communication will get lost or undelivered. Licensor accepts no
liability for lost or undelivered transactions. It is Licensee's responsibility
to maintain an electronic record of all transactions and to check their status from
time to time.
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6.7. |
Using the Software to initiate or to receive a transaction
does not normally involve any human intervention by Licensor's staff. In the rare
case, Licensee may need to contact Licensor's staff about a particular transaction.
In such case, Licensor's staff shall endeavour to be of assistance. If Licensee
requests Licensor's staff to change a transaction, Licensor may do so in its sole
and absolute discretion. Licensee agrees, however, that Licensor shall not be liable
for any act or omission relating to a change made at Licensee's request.
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6.8. |
Licensor does not warrant that the Software is free of "bugs",
errors or defects. Licensor shall not be responsible to Licensee for costs or damages
incurred as a result of any such "bugs", errors or defects. Licensor does not warrant
that the Software is error free and the existence of such errors shall not constitute
a breach of this Licence. Licensor does not warrant that the Software will meet
Licensee's requirements. Licensor excludes, and expressly disclaims, all express
and implied warranties of merchantability or fitness for purpose.
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6.9. |
Licensor shall not be responsible for any failure, delay
or interruption in Licensee's access to, or use of, the Software resulting from
a force majeure event. A force majeure event means any circumstances beyond Licensor's
control which result in one or more of the following events, without limitation:
Downtime; computer malfunctions; hardware or software faults; system errors; incompatibility
issues; telecommunications problems; fire, flood, civil disturbance or any other
event commonly referred to as an "Act of God". Upon the occurrence of a force majeure
event, Licensor shall do all things within its power to end the circumstances causing
such event and to mitigate any losses that Licensee may suffer as a consequence
thereof. However, Licensor shall not be liable for any such losses.
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6.10. |
Licensor's maximum liability to Licensee shall not, under
any circumstance, exceed the total amount of Transaction Fees paid by Licensee from
the commencement date until and including the date of termination of this Licence
pursuant to clause 8.
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6.11. |
All of the above exclusions, limitations and disclaimers
shall survive the termination of this Licence.
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6.12. |
All of the above exclusions, limitations and disclaimers
are intended to be for the benefit of EDIS and Licensor’s authorised resellers and
the Contracts (Privity) Act 1982 shall apply.
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7. |
Other Clauses
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7.1. |
No person has any authority (either express or implied)
to enter a contract or grant any licence or provide any representation, warranty,
condition, or guarantee to Licensee on behalf of Licensor unless in writing and
signed by an authorised officer of Licensor.
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7.2. |
This Licence represents the entire agreement concerning
the conditions upon which Licensee may use the Software. As such it supersedes all
previous agreements or understandings whether verbal or written, pertaining to the
same subject matter.
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7.3. |
Material on the EDIS web site contains general information
on the products and services of EDIS and Licensor. However, unless stated in writing
by EDIS or Licensor, as the case may be, this information does not form part of
the terms and conditions of this Licence.
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7.4. |
The Software may contain links to web sites and/or software
operated by third parties. Licensor does not endorse, or approve of the operators
of such third parties or the information, graphics, software, and material on such
sites. Licensor does not make any warranties or representations regarding the quality,
fitness for purpose, accuracy or merchantability of products, services or software
available from such third parties
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7.5. |
As a value added service, Licensor may enter into hosting
or reseller agreements with a select group of third party suppliers of goods and
services. Where Licensee uses the Software to purchase from Licensor goods and services
provided by a third party supplier, it will be on the following basis: (i) Licensee
buys such goods and services subject to the terms and conditions of the supplier
and any applicable disclaimers, limitations and warranties of the supplier; (ii)
Licensor disclaims any liability for the supplier’s negligence, errors or omissions;
(iii) Where the supplier provides a report, appraisal, opinion or recommendation,
Licensor shall not be responsible for its content; (iv) Licensor disclaims any liability
for claims relating to goods and services provided by the supplier; (v) Licensor
disclaims any liability for any failure or delay by the supplier, or the consequences
thereof; (vi) Licensor does not give any representation or warranty, whether express
or implied, in respect to any goods or services provided by the supplier; (vii)
any claims by Licensee relating to goods or services provided by the supplier should
be brought directly with the supplier, and not with Licensor; (viii) Licensor disclaims
any liability for direct, indirect, special, incidental or consequential damages
suffered by Licensee and relating to goods or services provided by the supplier.
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7.6. |
Licensor reserves the right to upgrade the Software without
notice.
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7.7. |
Licensor reserves the right to change the terms of this
Licence on 30 days notice. Licensee's continued use of the Software after such notice
period shall signify Licensee's acceptance of such changes.
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7.8. |
All notices required by this Licence shall be in writing
and sent by post, fax, or e-mail. Notices of direct debits, direct credits and other
charges to Licensee’s account may be given by e-mail and Licensee expressly consents
to this manner of notice. The foregoing consent is intended to be for the benefit
of EDIS as well as Licensor.
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7.9. |
Licensee authorises Licensor to make credit references via
a credit agency such as Dun and Bradstreet. Any fees incurred in connection with
such credit reference will be for the account of Licensee.
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8. |
Termination
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8.1. |
Licensor reserves the right to decline a Licence to any
person, in its sole and absolute discretion, and without giving any reason for such
action.
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8.2. |
Licensor may terminate this Licence, without cause, on 30
days notice.
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8.3. |
Licensor may terminate this Licence forthwith if Licensee
breaches any clause thereof and fails to rectify such breach within seven days after
notice thereof. Without limiting the generality of the foregoing, and for the avoidance
of doubt, any delay or failure by Licensee to pay the Transaction Fees shall be
deemed a material breach of this Licence.
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8.4. |
Upon termination, Licensee's right to use the Software shall
be deemed revoked. Licensee shall promptly return all media containing the Software.
Licensor shall have the right to enter upon the premises of Licensee and repossess
the Software. Licensee shall be obligated to pay all Transaction Fees to the date
of termination.
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8.5. |
Licensee shall pay all costs and expenses incurred by Licensor
(including solicitors' fees of Licensor) in enforcing Licensor's rights under this
Licence.
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8.6. |
Termination of this Licence will be without prejudice to
any rights or obligations accrued as at the date of termination. After termination
of this Licence, Licensee must cease to use Licensor's intellectual property, and
deliver to Licensor any material containing any of the intellectual property in
Licensee's possession. No Transaction Fees will be refundable in the event of termination
of this Licence.
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9. |
Governing Law
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9.1 |
New Zealand law shall govern this Licence. By accepting
this Licence, Licensee hereby submits to the jurisdiction of New Zealand court
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