CUSTOMER AND END USER LICENSE AGREEMENT
INTEGRATED CONTROL TECHNOLOGY LIMITED, Auckland, NEW ZEALAND (NZ Company No: 1424619) together with its wholly owned subsidiaries in any jurisdiction ("ICT”)
THE CUSTOMER who accepts this License in a Registration Form or Purchase Order or otherwise, which is then confirmed by Integrated Control Technologies, or who accepts this License online or otherwise ("Customer")
ANY USER authorized by a Customer to use the Proprietary Materials (as defined below) supplied to the Customer and who accepts this License online or otherwise and who registers to use or is otherwise granted access by Customer to use any part of the Proprietary Materials (“User”).
Customer and each User must accept this License if they want to use any Proprietary Materials (as defined below). If they do not accept this License then they are not allowed to use any Proprietary Materials.
1. Customer responsibility
1.1 Where Customer is a company, corporation, LLP, LLC or other incorporated entity, it may allow its officers, employees, and contractors (“Customer’s Users”) to use the Proprietary Materials (as defined below) that it is licensed to use and shall ensure that each such User accepts this License. Customer shall ensure that each such User complies with this License and shall be liable to ICT in respect of any such User’s actions and omissions including any breach of this License. When a Customer’s license under this License terminates, Customer’s Users’ rights to access and use Proprietary Materials terminates automatically at the same time.
1.2 If Customer is a natural person, then references in this License to Customer and to User both apply to him or her.
2.1 Customer and, through Customer, each of Customer’s Users, accepts a personal, single, non-transferable and non-exclusive license to use the software program(s), including any mobile apps ("Licensed Program(s)" or "Program(s)"), as listed on the registration form, Purchase Order or online registration or any order made from time to time ("Registration "), including any program code, algorithms, APIs and other interfaces and any equipment supplied with or associated with the Program(s), and together with any manuals, and other materials supplied with or associated with the Licensed Program(s) and any equipment supplied with or associated with the Licensed Program(s) (each of which is referred to in this License as “Proprietary Material”), on the terms set out in this License (“License”) (subject to any overriding terms agreed specifically in writing with a Customer (“Specific Terms”)).
2.2 Customer and each User irrevocably accepts the terms and conditions of this License by submitting a completed Registration via ICT’s website or any mobile app. All such submissions are subject to final approval by ICT and shall not be binding on ICT until such approval, which shall be deemed to be given once ICT allows the Customer’s first User to access a Program.
2.3 This License shall remain in effect for thirty (30) years from the date of first registration or for any shorter “Subscription Term” specified in the Customer’s Registration, unless, in either case, terminated earlier pursuant to these terms.
2.4 Payment in full of the subscription fees for Licensed Program(s) and any purchase price for associated equipment must be made by Customer when specified in the Registration in consideration of the grant of this License. Customer agrees to pay all applicable sales, use, import, or other taxes or duties, and any other fees or withholding related to the license of Licensed Program(s) and purchase of associated equipment.
3. Limited Use
3.1 The Program(s) are supplied by ICT solely for use at the designated site, identified in a Registration and, in respect of mobile apps, on devices owned by Customer or its Users.
3.2 Customer and Users understand that the security and control of Customer’s premises and other property will only be as good as the security of each computer, mobile phone or other mobile device used to access the Program(s) and only as good as the security practices of each User.
3.3 In particular, while ICT makes mobile apps available to Customers and Users for their convenience, Customer and Users must ensure that mobile device passwords are strong and access is secure if they are not to compromise security and control. Customer should ensure that only Users who need access to its security and control systems are granted such access and should impress on them the risks in lax security practices when using computer and mobile devices.
3.4 ICT CANNOT AND DOES NOT TAKE ANY RESPONSIBILITY FOR COMPUTER, CUSTOMER, USER OR DEVICE SECURITY OR CONTROL.
4. Ownership and Intellectual Property
4.1 All right, title, and interest in and to the Proprietary Material (other than equipment purchased by Customer) and all intellectual property in any Proprietary Material, is and shall at all times remain the sole property of ICT and third party licensors ("Suppliers"). Customer and its Users may use the Proprietary Material only in connection with the operation and management of Customer's own business. Customer and Users are not authorized to grant sublicenses or any other rights for use of or access to the Proprietary Material or any part of it or them or to permit usage or possession of any part of the Proprietary Material or any part of it or them by anyone else other than Customer’s Users for any purpose.
4.2 No Customer or User shall remove, obscure or alter any logo, copyright notice or other indicia of any Supplier’s ownership of, and/or intellectual property rights in, Proprietary Material.
4.3 Customer and each User shall:
4.3.1 not disassemble or reverse compile, reverse engineer, or otherwise attempt to learn the source code underlying any Programs or any embedded code in any equipment, or any algorithms or methods underlying the same;
4.3.2 not copy (whether in a transitory fashion, temporarily or permanently), distribute, communicate, dispose or, deal with or otherwise use, in whole or in part, any of the Proprietary Material or any direct or indirect interest in any Proprietary Material derived from this License, other than for normal use in Customer’s business in accordance with this License, except that Customer may make a machine-readable copy of Licensed Program(s) for back-up or archival purposes. In the event of a malfunction, causing the designated CPU to become inoperable, Customer may use Program(s) on a back-up CPU on a temporary basis during such malfunction.
4.3.3 take all reasonable steps to safeguard the Proprietary Material, and to ensure that no unauthorized person shall have access to any of it and that no unauthorized copy, in whole or in part, shall be made, distributed or communicated to anyone who is not an authorised Customer’s User;
4.3.4 not disclose a User’s Key, password or PIN code (including their mobile device access code) used to access Licensed Program(s) to any other User, provided that Customer may keep a secure list of its Users’ Keys, Passwords and PIN codes for security purposes. Customer and Users are advised to use strong passwords and to regularly require these to be changed. ICT CANNOT AND DOES NOT TAKE ANY RESPONSIBILITY FOR KEYS, PASSWORDS, PINS OR FOR ANY COMPUTER, CUSTOMER, USER, OR DEVICE SECURITY OR CONTROL.
4.4 ICT shall accord the same protection to Customer’s confidential information as Customer is obliged to accord to ICT’s Proprietary Materials under clause 4.3.3.
5.1 ICT may immediately terminate this License if Customer or any of Customer’s Users fails to comply with any of the terms and conditions of this License which are unable to be cured, or, where cure is possible, if Customer has failed to cure within fourteen (14) days of being given notice to do so.
5.2 Customer may terminate this License by giving ICT thirty (30) days’ notice in writing.
5.3 This License shall automatically terminate if Customer:
(a) commits an act of bankruptcy or insolvency in any jurisdiction; or
(b) makes any assignment or enters into any compromise or arrangement for the benefit of creditors of Customer;
(c) is liquidated, dissolved, struck off, put into administration, has a receiver, manager or similar appointed or any similar event occurs in any jurisdiction; or
(d) ceases a material part of its business or threatens to cease a material part of its business.
5.4 Within thirty (30) days after the date of expiration or earlier termination of the license under this License, Customer shall: i) return to ICT all existing copies of the Program(s) and other Proprietary Materials; and ii) furnish evidence to ICT in writing by an officer of the company that the original(s) and all copies of the Program(s) and other Proprietary Materials, in whole or in part, have been destroyed, and that none of the Program(s) remain resident on or in any CPU, mobile or other digital archival device. In the event of the expiration of a Subscription Period set forth in a Registration, this Section shall apply to the Licensed Programs set forth in such Purchase Order.
5.5 Expiration or earlier termination of this License shall not prejudice and rights and obligations that have accrued prior to that time. All amounts due by Customer to ICT shall become due and payable on expiration or earlier termination. Clauses 2.4, 4, 5.4, 8.3, 8.4 and 9 shall survive expiration or earlier termination of this License
6. Export/Government Contracting
Customer agrees to use the Licensed Programs only at the designated site, and in no case to export the Licensed Programs from the country of the designated site. Notwithstanding the foregoing, Customer agrees to comply with any and all applicable laws, including but not limited to export laws, regulations, orders and other rulings or decrees of New Zealand and any applicable jurisdictions. Customer agrees that it shall not, and shall not allow third parties to, supply the Licensed Programs to a unit or agency of the Canadian, United States, New Zealand governments or any other government without prior written authorization by ICT, and then only pursuant to terms set forth by ICT.
7. Support and Maintenance
7.1 Support and Maintenance Commitment
Provided the Customer and Customer’s Users comply with the terms of this License, for the purposes of this License “Support and Maintenance” means:
7.1.1 Unlimited use of ICT’s email, online and telephone support, via an Authorized ICT Partner, to receive technical assistance and/or general consultation with regard to Licensed Program(s);
7.1.2 As they become generally available, new versions, updates and/or enhancements, fixes, and workarounds to current versions of the Licensed Program(s);
7.1.3 As they become generally available, updates and enhancements to existing documentation online at www.ict.co;
7.1.4 ICT taking all reasonable steps to correct defects in the Licensed Program(s) that are directly attributable to programming if ICT, in its sole discretion, recognizes them as having a materially detrimental effect on the performance of those Program(s).
7.2 Support and Maintenance Exclusions
7.2.1 ICT shall provide support, error and defect correction, upgrades, revisions, enhancement and all other maintenance of the Program(s) solely in accordance with clause 7.1 of this License.
7.2.2 Without prejudice to the generality of paragraph 7.2.1 above, the following are expressly excluded from Support and Maintenance and shall not be covered by ICT:
(a) Provision, installation and/or support of new versions and/or enhancements to current versions any software (including but not limited to operating systems) or materials other than Licensed Program(s) and related ICT documentation;
(b) Installation on Customer’s systems of the Program(s) or updates and enhancements to Program(s) or of any equipment. Installation must be attended to by a by ICT certified installer. Details of certified installers are available on ICT’s website.
(c) Third party software or hardware or Integration of the Program(s) with third party software or hardware;
(d) Communication and connectivity issues caused by or contributed to by telecommunication links, internet or telecommunication problems;
(e) Problems arising out of use of the Program(s) otherwise than in accordance with this License or other ICT documentation or guidance, unauthorized alteration of or interference with the Program(s), or out of negligent use or misuse by Customer or Customer’s Users, or caused by or contributed to by third party software or hardware; and
(f) Support and Maintenance of Program(s) which are not within the last six (6) releases of those Program(s) by ICT. ICT may be able to provide Support and Maintenance for older releases but expressly excludes all obligations to do so.
7.2.3 ICT reserves the right to charge additional support fees at its then current rates for services performed in connection with reported incidents that are later determined to have been within the exclusions specified in clause 7.2.2 above.
7.3 Support and Maintenance Provision and Term
7.3.1 Support and Maintenance for each Program commences when the Customer Key for that Program is first registered with ICT and runs for twelve (12) months from that date (“Initial Term”). The fee for Support and Maintenance for the Initial Term is included in the Program Subscription fee for that Program.
7.3.2 Support and Maintenance for each Program may at Customer’s option be renewed on an annual basis from the expiry of the Initial Term and annually for each twelve (12) month period afterwards during the term of this License, or during any Subscription Period for any particular Program (whichever is the shorter), by payment of the Support and Maintenance Fees. ICT may notify Customer thirty (30) days in advance of the expiry of Support and Maintenance cover but any renewal shall be Customer’s ultimate responsibility.
7.3.3 Support and Maintenance shall not be provided to Customer if Customer does not have a current License for the Program(s) in question and is not up to date with all Subscription Fees for those Program(s) and all other fees payable to ICT.
7.3.4 If ICT chooses to discontinue maintenance of Program(s), ICT agrees to notify Customer in writing thirty (30) days in advance and ICT shall, at its discretion elect to do any or all of the following: a) replace the Licensed Program(s) with a comparable product, if one exists, subject to monetary adjustments depending upon the cost of the replacement product relative to that of the Program(s), b) reimburse the Customer a prorate amount (discounted monthly on a straight line basis over one (1) year for a non-subscription license and discounted on a straight line basis over the Subscription Period for a subscription license) of the maintenance fee already paid, or c) assign maintenance of Program(s) to a third party at no cost to the Customer. Payment of fees for maintenance does not ensure the longevity or continuance of Program(s).
7.3.5 Where Customer’s Support and Maintenance for a Program is not renewed or otherwise lapses, it may obtain cover at a later stage during the term of its licensed use of that Program as follows:
(a) Customer may purchase telephone and/or email support for currently supported software versions on an as-needed basis. Telephone and/or email support is billed at the current advertised hourly rate for support services plus any tax or duties, with a minimum charge of one hour. After the first hour, support is billed in 15-minute increments charged at 25% of the advertised hourly rate for support services plus any tax or duties.
(b) Reinstatement of lapsed Support and Maintenance is only available to a maximum of 3 years beyond expiration date, except at the sole discretion of ICT, and will require full payment of Support and Maintenance fees that would have been due from the expiration of the last active Support and Maintenance period through the reinstatement date, plus a 20% administrative surcharge. This reinstatement policy applies if Support and Maintenance has been cancelled or there is otherwise a lapse in Support and Maintenance coverage, such as for non-payment of fees. Upon reinstatement, Customer will receive the latest version of the Program(s) to which this paragraph applies.
7.4 Support and Maintenance Fees
7.4.1 Subject to paragraph 7.3.5 of this License, the fee for renewal of Support and Maintenance (“Support and Maintenance Fee”) is payable in advance at the beginning of each twelve (12) month period for which cover is required by Customer at the rate then advertised by ICT and is not refundable in any circumstances (even where Program use is terminated during that twelve (12) month period). Support and Maintenance Fees may be subject to an inflationary adjustment of list price from time to time.
8. Warranties, indemnities, disclaimers and limitations
8.1 Media Warranty
ICT warrants that for a period of three (3) months from the date of delivery of a Licensed Program to Customer, that the media upon which the Licensed Program is delivered will be free of defects in material and workmanship. If during such warranty period, the Customer discovers a defect in the media, Customer shall immediately notify ICT and Customer's exclusive remedy shall be, at ICT's sole discretion, to either repair or replace such media so that it is free of defects of material and workmanship. THIS SECTION 8.1 AND SECTION 8.2 SET FORTH THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER FOR BREACH OF WARRANTY UNDER THIS LICENSE.
8.2 Patent or Copyright Infringement and Indemnity
ICT will defend, indemnify and hold harmless Customer against a claim that the Licensed Programs were created in part by violation of the protected trade secret of another or infringe any patent or copyright and will pay resulting costs, damages and attorney's fees finally awarded, subject to the limitation of liability set forth in clause 8.4, provided that: i) Customer promptly notifies ICT by written communication, of the claim ii) Customer cooperates with ICT in the defence; and iii) ICT has sole control of the defence and all related settlement negotiations. However, if the costs and damages attributable to a claim of infringement may exceed such limitation of liability, Customer may elect to defend against the claim provided ICT may fully participate in the defence and settlement of such claims. If such claim occurs, or in ICT's opinion is likely to occur, Customer agrees to permit ICT at its option and expense, either to procure for Customer the right to continue using the Licensed Programs or to replace or modify the same so that it becomes non-infringing and provides as nearly as is reasonably possible, under the circumstances, the same capability as before. ICT shall have no obligation to defend Customer or pay costs, damages, or attorney's fees for any claim based upon use of other than a current, unaltered release of the Licensed Programs if such infringement would have been avoided by the use of a current, unaltered release of the Licensed Programs.
8.3 Disclaimer and exclusion of liability
8.3.1 OTHER THAN THE WARRANTIES AND INDEMNITIES SET FORTH IN CLAUSES 8.1 AND 8.2, ICT MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PROPRIETARY MATERIALS AND SPECIFICALLY MAKES NO WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (PARTICULARLY GIVEN THAT PROPRIETARY MATERIALS ARE OFFERED AND INSTALLED BY THIRD PARTIES).
8.3.1 THE WARRANTY SET FORTH IN CLAUSE 8.1 AND INDEMNITY SET FORTH IN CLAUSE 8.2 DO NOT APPLY TO PORTIONS OF THE LICENSED PROGRAM(S), IF ANY, WHICH ARE LICENSED BY ICT FROM THIRD PARTIES. SUCH PORTIONS ARE PROVIDED 'AS IS.'
8.3.3 ICT IS NOT LIABLE FOR ANY LOSS, DAMAGE OR OTHER LIABILITY SUFFERED OR INCURRED BY THE CUSTOMER OR ANY USER RESULTING DIRECTLY OR INDIRECTLY FROM ANY FAILURE BY CUSTOMER OR A USER TO COMPLY WITH THE TERMS OF THIS LICENCSE OR ANY GUIDANCE GIVEN BY ICT FROM TIME TO TIME DIRECTLY OR ON ITS WEBSITE.
8.3.4 THE PROPRIETARY MATERIALS ARE PROVIDED FOR BUSINESS PURPOSES ONLY AND, WITHOUT PREJUDICE TO THE GENERALITY OF CLAUSE 8.3.1, ALL GUARANTEES UNDER THE CONSUMER GUARANTEES ACT 1993 (NZ) AND ANY SIMILAR CONSUMER PROTECTION LEGISLATION IN ANY JURISDICTION ARE EXCLUDED.
8.4 Limitation of Liability
8.4.1 SUBJECT TO CLAUSES 8.1 AND 8.2, WITH RESPECT TO SUPPORT AND MAINTENANCE AND REVISIONS FURNISHED UNDER THIS LICENSE, EVEN IF ADVISED OF THE POSSIBILITY, ICT SHALL NOT BE LIABLE FOR DELAY IN FURNISHING SERVICES OR REVISIONS. IN NO EVENT SHALL ICT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR TORT DAMAGES, ANY CLAIM OR DEMAND AGAINST CUSTOMER OR ANY USER BY ANY OTHER PARTY; DAMAGES ARISING FROM EQUIPMENT DOWN-TIME, OR LOSS OF DATA; OR EXEMPLARY OR PUNITIVE DAMAGES, WHETHER RESULTING FROM LOSS OF USE, DELAY OF DELIVERY, LOSS OF DATA, LOSS OF PROFITS OR OPPORTUNITY, LOSS OF BUSINESS OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE PROPRIETARY MATERIALS, THE PERFORMANCE OF THE PROPRIETARY MATERIALS, OR ICT'S PROVISION OF SERVICES, GOODS OR OTHER EVENTS RELATING TO THE PROPRIETARY MATERIALS, EVEN IF ICT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPLICITLY SET FORTH IN CLAUSES 8.1 AND 8.2:
8.4.2 CUSTOMER SHALL INDEMNIFY AND HOLD ICT HARMLESS FROM AND AGAINST ANY LOSS, CLAIM, LIABILITY, DAMAGE, COST OR EXPENSE, INCLUDING ATTORNEY'S FEES, PAYABLE TO ANY PERSON OR ENTITY ARISING OUT OF OR RELATING TO THE CUSTOMER'S BREACH OF THE TERMS OF THIS LICENSE.
8.4.3 ICT SHALL NOT BE LIABLE FOR DAMAGES OR ANY OTHER FORM OF COMPENSATION WHICH EXCEEDS THE AMOUNT OF THE FEES PAID TO ICT BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CUSTOMER’S CLAIM BEING MADE.
9.1 This License shall be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand (without prejudice to enforcement of New Zealand judgement rights in any other jurisdiction).
9.2 This License is the entire agreement as to its subject matter and supersedes all prior agreements and representations. All international treaties and laws incorporating such treaties relating to sale of goods or services are excluded to the maximum extent possible.
9.3 Any provision of Registration inconsistent with or in addition to the terms and conditions of this License (except for the address of Licensee's site of use, the list of Licensed Binary Code products licensed, the price of each license, the quantity of each such license, the length of the Subscription Period, if any, and the election of Support and Maintenance) shall be not be binding on ICT and its failure to object to such provision shall not be construed as acceptance.
9.4 No modification, waiver, cancellation of any provision of this License shall be binding unless made in writing and signed by the parties.
9.5 This License shall be binding upon and inure to the benefit of the parties, and ICT's Suppliers if any, and the parties respective, permitted successors, assigns, and legal representatives, provided however, that the rights and duties of Customer with respect to a Program(s) may not be sold, assigned, sublicensed, disposed of or otherwise transferred by it, in whole or in part, without the prior written consent of ICT. A change in control of the Customer shall be deemed to be an assignment for the purposes of this clause.
9.6 If any provision of this License is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of this License shall remain in full force and effect unless the invalid provision supplied an essential term of this License. In particular, where local law in any jurisdiction prevents ICT excluding or limiting liability as set out in clauses 8.3 and 8.4, those clauses shall be read subject to that local law so that the exclusion or limitation is read down to whatever maximum exclusion or limitation is allowed by that local law. A reading down in this fashion shall not impact on interpretation in any other jurisdiction.
9.7 ICT may amend the terms of this License at any time by notice on its website and those amended terms shall apply thirty (30) days after notification on its website, provided however that in doing so, in respect of a Program that has already been licensed to Customer, ICT may not materially increase the obligations of the Customer or shorten the agreed term of the license of that Program. To avoid doubt, ICT may change the terms of its Support and Maintenance obligation in section 7 of this License at any time.
Updated November 2016