I Company has developed a proprietary electronic platform that can be used to offer and sell compliance software (the “Platform”).
II Customer wishes to license the Platform to develop an Internet Dashboard in its own name (the “Dashboard”).
NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending to be legally bound, the parties agree as follows:
1.GRANT OF LICENSE
1.1. In General. Company hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Platform during the Term, solely for the operation of the Dashboard (the “License”).
1.2. Restrictions. Customer shall not (i) decompile or reverse engineer the Platform or otherwise attempt to obtain the source code for the Platform; (ii) sublicense or allow any other person to use the Platform, except pursuant to the normal operation of the Dashboard; (iii) use the name or proprietary logo(s) of Company without Company’s prior written consent; (iv) use the Platform for any purpose other than the operation of the Dashboard; (v) use the Platform in a manner that interferes with the use of Platform by Company or its other customers; or (vi) without giving at least one hundred and eighty (180) days’ notice to Company, commence development of an electronic platform for the purpose of offering such electronic platform to other Dashboards, in competition with the Platform.
Company shall provide the following services in connection with the creation and operation of the Dashboard (the “Services”):
2.1. Integration with Other Services. Company Dashboard does not require integration with any other software and integration is not supported by Company.
2.2. Hosting Services. Company shall provide hosting for the Dashboard through Amazon Cloud Services or another comparable hosting service. Company has provided Customer with the technical specifications of its third party hosting services and shall notify Customer of any change in the hosting provider or such technical specifications.
2.3. Technical Support. Company shall provide ongoing support and maintenance services to ensure that the Platform performs as intended.
3.1. In General. The fees and other charges of Company are as set out in the terms of the subscription and/or as agreed in writing with the Company.
3.2. Taxes. The fees are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes now in force or enacted in the future, and Customer shall pay any such tax (excluding taxes on Company’s net income) that Company may be required to collect or pay now or at any time in the future with respect to such fees.
3.3. Payment. Payment of the amounts due to Company shall be made by wire transfer. Any amount not paid within thirty (30) days following Company’s invoice shall bear a finance charge at the rate of 1 ½% per month.
3.4. Pricing Changes. Customers selecting annual pricing will receive notice of changes in pricing at least 45 days before each anniversary of the Effective Date. Customers selecting monthly pricing will receive notice of changes in pricing at least 45 days before the month in which the change in pricing will take effect.
4. FUNCTIONALITY OF PLATFORM
4.1. Initial Functionality. Company has demonstrated the Platform to Customer and delivered to Customer an electronic version of such demonstration and/or a list of sample screen shots (the “Demonstration Version”). At the time of delivery to Customer, the Platform will have substantially the same “look and feel,” features, and functionality of the Demonstration Version and no fewer features and no less functionality than the versions of the comparable product delivered to other customers of Company.
4.2. Future Functionality. Following delivery of the Platform to Customer, Company shall incorporate into the Dashboard such additional features and functionality as Company makes available to its customers generally without charge. Company shall give Customer reasonable advance notice of such additional features and functionality if they are material to the operation of the Dashboard.
5. TECHNICAL SPECIFICATIONS
Company has provided Customer with the technical specifications of the Platform and Company’s own technology infrastructure (to the extent relevant to the operation of the Platform), including but not limited to security specifications. Should Company wish to make any material modification of such technical specifications it shall use reasonable efforts to notify Customer no less than ninety (90) days in advance.
6.1. Timetable. Company shall use reasonable commercial efforts to develop and deliver the customised Platform to Customer. However, Customer understands that the ability of Company to meet target delivery dates depends on a number of factors beyond the control of Company, especially the timely cooperation of Customer and its employees. Company shall notify Customer when and if it believes the timetable should be shortened or extended.
6.2. Testing and Acceptance. Company shall notify Customer when Company believes the customised Platform is ready for use by Customer. Upon receipt of such notice, Customer shall have ten (10) days in which to test the Platform. If Customer believes there are defects in the Platform it shall so notify Company and the parties shall cooperate in fixing any such defects. Customer shall be deemed to have accepted the customised Platform (i) if it does not notify Company of defects within such ten (10) day period, (ii) when it notifies Company of such acceptance, or (iii) when it has used the customised Platform for thirty (30) days, whichever occurs first.
7. CUSTOMER'S OBLIGATIONS
Customer shall (i) provide Company with accurate and complete descriptions of its needs and business plans for the Dashboard, (ii) cooperate with Company in the development and installation of the customsisd Platform, (iii) use the Platform only in an operating environment (e.g., hardware and software) approved by Company, (iv) notify Company of any defects in the Platform, (v) give Company electronic access to the Platform to troubleshoot and correct any defects, and (vii) use reasonable commercial efforts to operate the Dashboard in accordance with all applicable laws and regulations, including but not limited to securities and consumer protection laws.
8.1. Limited Performance Warranty. Company warrants that the Platform will perform substantially as demonstrated in the Demonstration Version and will be free of material errors or defects, and that all Services will be performed in a good and workmanlike manner. In the event Customer believes that Company is in violation of this limited performance warranty, Customer shall notify Company and Company shall use reasonable commercial efforts to correct any error or defect.
8.1.1. AML360 warrants that the Software conforms to its published specifications.
8.1.2. In no event will AML360 or its suppliers be liable for any lost revenue, profit, or data, or for special, indirect, consequential, incidental, or punitive damage however caused and regardless of the theory of liability arising out of the use of or inability to use the software even if AML360 or its suppliers have been advised of the possibility of such damages.
8.1.3. Trial Use of the Services. If specified in the ordering document, you may order certain services for trial, non-production purposes are subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and AML360 does not offer any warranties for such services.
8.2. Compliance with Laws. Company shall use commercially reasonable efforts to conduct its business, and develop the Platform, in compliance with all applicable laws, rules and regulations.
8.3. No Other Warranties. Except for the warranties set forth in sections 8.1, 8.2 and 8.3, the platform including any accompanying manuals and other materials, and the services, are provided by the Company "as is" without warranty of any kind, including the implied warranties of merchantability, fitness for a particular purpose, title, or any warranty that the platform will be error-free or operate without interruption, or that the platform will meet the Customer's requirements, any any warranties implief by law, by the course of dealing between the parties, or otherwise, are hereby excluded to the fullest extent permitted by law.
9. CONFIDENTIALITY - EMPLOYEES
9.1.1. Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (i) financial information, (ii) business and marketing plans, (iii) the names of employees and owners, (iv) the names and other personally-identifiable information of users of the Dashboard, (v) security codes, and (vi) all documentation provided by Company.
9.1.2. Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include (i) information already known or independently developed by the recipient without the use of any confidential and proprietary information, or (ii) information known to the public through no wrongful act of the recipient.
9.1.3. Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (i) if required to do by legal process (i.e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such party’s business.
9.2. Employees. During the Term and for a period of one (1) year thereafter, neither Company nor Customer shall hire, solicit for hire, or directly or knowingly indirectly use the services of any employee of the other party without the prior written consent of such other party. For purposes of this section, a person shall be deemed an “employee” of a party if such person has provided services to such party as an employee or independent contractor at any time within the preceding six (6) months.
9.3. Injunctive Relief. The parties acknowledge that a breach of this section 9 will cause the damaged party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.
10. RESPONSIBILITY FOR OPERATION OF DASHBOARD
The parties agree that Customer, and not Company, is solely responsible for the operation of the Dashboard. The role of Company is only to provide the Platform and the Services. Company does not act as a fiduciary, business or legal advisor, or co-venturer. Customer is solely responsible for ensuring that the Dashboard is operated in accordance with applicable laws, for monitoring the content displayed on the Dashboard, and for establishing the terms of its relationships with users of the Dashboard. Company is not responsible for any information or content displayed on or transmitted through the Dashboard.
11.1. In General. The initial term of this Agreement shall be for one (1) year, followed by successive renewal periods of one (1) year each (together, the “Term”), unless sooner terminated pursuant to this section 11 or other provisions of this Agreement providing for termination.
11.2. Termination for Cause. This Agreement may be terminated at any time if either party fails to perform any of its material obligations hereunder and such failure continues for thirty (30) days following written notice from the non-breaching party. For these purposes (i) any obligation of Customer to pay any amount to Company shall be treated as a material obligation, and (ii) if Customer fails to make a required payment by the due date on more than three (3) occasions during any period of twelve (12) months, Company may (but shall not be required to) terminate this Agreement without giving written notice of such failure or any additional failure.
11.3. Termination for Cessation of Business. Customer may terminate this Agreement by giving ninety (90) days’ notice to Company if it discontinues the business using the Dashboard. Company may terminate this Agreement by giving at least ninety (90) days’ notice to Customer if it discontinues providing its platform to all of its customers.
11.4. Termination by Customer Without Cause. Customer may terminate this Agreement at any time by giving at least ninety (90) days’ notice to Company.
11.5. Termination by Company Without Cause. Company may not terminate this Agreement except as provided herein.
11.6. Effect of Termination. Upon any termination of this Agreement, the License shall terminate and Customer shall have no further rights in or to the Platform. Provided that Customer has paid all amounts due and otherwise complied with all of its material obligations under this Agreement, Company shall provide Customer, in a standard database format, with all of the data and information Customer and its customers at no additional charge.
12 OWNERSHIP OF INTELLECTUAL PROPERTY
12.1. Intellectual Property of Company. Company is the exclusive owner of the Platform and all of the intellectual property rights associated with the Platform, including software and copyrights, even if Company incorporates into the Platform suggestions made by Customer. In particular, Company retains all rights in any software, source code, know-how, marketing materials, documentation, data, process, or methodology (including technical, manufacturing, service and maintenance information) in connection with the Products.
12.2. Brand Recognition. The Customer must not use or apply to register (anywhere in world) any trademark, company name, business name or domain name which incorporates the Name, nor any trademark, company name, business name or domain name which is substantially identical with, or deceptively similar to, the Name, in each case, either in whole or in part, including for the avoidance of doubt, “AML360”.
12.3. Intellectual Property of Customer. Customer is the exclusive owner of its name, logo(s), trademarks, URLs, and other intellectual property and, together with users of the Dashboard, all of the content displayed on the Dashboard.
12.4. Users of Dashboard. Customer owns all of the relationships with the users of the Dashboard. Company may not share any personally-identifiable information of such users (e.g., names, addresses) with any person or contact or solicit any such users for any purpose without the advance written consent of Customer, which may be withheld in the sole and absolute discretion of Customer.
12.5. Data. Company may collect, use, store, and sell data concerning the operation of the Dashboard provided that such data not reveal the identity of Customer or any user of the Dashboard.
12.6. Use of Customer’s Name. Company may, but shall not be required to, advertise that Customer uses the Platform.
13. LIMITATION OF CLAIMS AND DAMAGES
13.1. Limitation of Claims. The Company shall not be liable to the Customer under any circumstances (even if this agreement is terminated) for any consequential, special, incidental, punitive or indirect damages (including without limitation loss of profit, revenue, business opportunity or businss advantage), whether based upon a claim or action of tort contract, warranty, negligence, strict liability, breach of statutory duty contribution, indemnity or any other legal theory or cause of action, even if advised of the possibility of such damages.
13.2. Limitation of Damages. The Company's total liability under or relating to this agreement, regardless of the cause or form of action, and whether before or after its terminaton, shall not exceed the total of all amounts paid to the Company by the Customer less a pro rata abatement of such amount for each full or partial month of the first sixty (60) days following delivery.
13.3. Exceptions. The limitations set forth in sections 13.1 and 13.2 shall not apply to any claims arising (i) under section 8.2 (concerning Company’s warranty of non-infringement), (ii) under section 9 (concerning confidentiality), (iii) under section 12.3 (concerning the solicitation of users), or (iv) from the wilful misconduct of Company.
14. INDEMNIFICATON OF CUSTOMER
14.1. Obligation to Indemnify. Customer will indemnify and hold harmless Company, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims arising from Customer’s operation of the Dashboard, except for claims arising from the wrongful acts or omissions of Company.
14.2. Notice and Defense of Claims. Company will promptly notify Customer of any claim for which it believes it is entitled to indemnification under the preceding paragraph. Customer may, but shall not be required to, assume control of the defense and settlement of such claim provided that (i) such defense and settlement shall be at the sole cost and expense of Customer (ii) Customer shall be permitted to control the defense of the claim only if Customer is financially capable of such defense and engages the services of a qualified attorney, each in the reasonable judgment of the Indemnified Party; (iii) Customer shall not thereafter withdraw from control of such defense and settlement without giving reasonable advance notice to Company; (iv) Company shall be entitled to participate in, but not control, such defense and settlement at its own cost and expense; (v) before entering into any settlement of the claim, Customer shall be required to obtain the prior written approval of Company, which shall be not unreasonably withheld, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against Company; and (vi) Customer will not enter into any settlement of any such claim without the prior written consent of Company unless Customer agrees to be liable for any amounts to be paid to the third party pursuant to such settlement and is financially able to do so.
15.1. Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.
15.2. Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal counsel and shall be deemed to be given by electronic mail with transmission acknowledgment, to the Company address of firstname.lastname@example.org or to the Customer's executive user email, or to such other email address or addresses as the parties may designate from time to time by notice satisfactory under this section.
15.3. Governing Law. This Agreement shall be governed by the internal laws of New Zealand without giving effect to the principles of conflicts of laws. The parties hereby submit to the jurisdiction of the courts of New Zealand, and agrees that, subject to section 15.4, all disputes arising from this Agreement shall be prosecuted in such courts. Each party hereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by regular mail to the address set forth above and/or by any means authorized by New Zealand law.
15.4.1. In General. The following procedure shall be followed in the event of a dispute arising from this Agreement:
(a) The principals (chief executive officers) of Company and Customer shall speak directly concerning the dispute.
(b) If the principals are unable to resolve the dispute, then within five (5) business days they shall exchange written summaries of their respective positions, containing such information and/or proposals as they may determine in their sole discretion, and thereafter meet or speak by telephone to attempt to resolve the dispute. Such summaries shall be deemed in the nature of settlement discussions and shall not be admissible in any further proceeding.
(c) If the principals are still unable to resolve the dispute, they may, but shall not be required to, participate in non-binding mediation conducted by a single neutral mediator chosen the parties.
(d) If the parties do not agree on a dispute resolution technique within 14 days after the date notice of a dispute was given, the dispute is to be mediated according to the standard mediation agreement of LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution), and the Chair of LEADR (or the Chair's nominee) will select the mediator and determine the mediator's remuneration.
(e) If the principals elect not to participate in mediation or are unable to resolve the dispute in mediation, they may file a lawsuit as described in section 15.3.
15.4.2. Exceptions. This section 15.4 shall not apply to (i) more than one (1) dispute during any six (6) month period, (ii) actual or alleged violations of section 9, (iii) situations in which the failure to immediately file a lawsuit would materially prejudice the interests of either party, or (iv) any dispute following the inability of the parties to resolve a previous dispute by following such procedures.
15.5. Assignment. Neither Company nor Customer may assign its rights or obligations under this Agreement without the prior written consent of the other. Notwithstanding the preceding sentence, a party may assign its interest in this Agreement to a person acquiring (by sale, merger, reorganisation, or otherwise) substantially all of the transferor’s assets or business, provided that (i) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer, (ii) the transferor remains liable for all obligations prior to the transfer, and (iii) in the case of a transfer by Customer the transferee shall not be engaged in the business of developing, marketing, or supporting an electronic platform in competition with the Platform. The transferring party may charge a reasonable fee for the review and processing of the information regarding the transfer.
15.6. Competition. To the extent permitted by law, the Customer must not within 18 months of the termination of this agreement, seek to develop, market of offer for sale any product that is substantially identical with, or deceptively similar to the Product, in each case, either in whole or in part, including for the avoidance of doubt, “AML360” products.
15.7. Payment of Fees. In the event of a dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs, provided that if a party prevails only in part the court shall award fees and costs in accordance with the relative success of each party.
15.8. Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party.
15.9. Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
15.12. No Third Party Beneficiaries. This Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way.
15.13. Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.
15.14. Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.
15.15. Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.
15.16. Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
15.17. Entire Agreement. This Agreement constitutes the entire agreement between Company and Customer and supersedes all prior agreements and understandings.