End User Licence Agreement
Pingar Limited
End User License Agreement
PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE OPENING, INSTALLING AND/OR USING THE PINGAR SOFTWARE. THIS EULA IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND PINGAR LIMITED (“PINGAR”) FOR LICENSE OF THE PINGAR SOFTWARE.
By installing, copying, or otherwise using the Pingar Software, Customer agrees to be bound by the terms of this EULA. If Customer does not agree to the terms of this EULA, then Customer shall promptly return the Pingar Software to Pingar and destroy any copies thereof. This EULA represents the entire agreement concerning the Pingar Software between Customer and Pingar, and supersedes any prior proposal, representation, or understanding between the parties
1. Definitions
1.1 “Associated Documentation” means the documentation relating to the installation and use of the Pingar Software as supplied by Pingar from time to time.
1.2 “Commencement Date” means the date set forth in this Schedule.
1.3 “Defect” has the meaning set forth in Section 16.1.
1.4 “Intellectual Property or Intellectual Property Rights” means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, Know‑how, copyrights, trademarks and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions and continuations‑in‑part of such applications; and all rights under corrections, reissues, patents of addition, extensions and renewals of any such grant, registration and/or right.
1.5 “License” means the license or sub-license of the Pingar Software granted by Pingar to Customer under this Agreement.
1.6 “License Fee” means the amount specified in Exhibit A to this Agreement, which is to be paid by Customer for the License.
1.7 “Modification” has the meaning set forth in Section 12.3.
1.8 “Pingar Software” means the software described in Exhibit A licensed by Pingar to the Customer pursuant to this Agreement.
1.9 “Software Warranty” has the meaning set forth in Section 16.1.
1.10 “Software Warranty Period” has the meaning set forth in Section 16.1.
1.11 “Specifications” means the specifications set forth in Exhibit A.
1.12 “Warranty Period” means the period set forth in the Exhibit A that begins on the Commencement Date.
1.13 A reference to a Clause, a Schedule or an Exhibit, is a reference to a Section, Schedule or Exhibit to this Agreement.
1.14 The meaning of general words is not limited by specific examples introduced by “including”, or “for example”, or similar expressions.
2. Grant of License
Subject to this Agreement, Pingar grants Customer a personal, non-exclusive, and non-transferable License to use the Pingar Software and the Associated Documentation. This License does not include a right to sub-license or to provide bureau services. Subject to earlier termination in accordance with this Agreement, the License will continue for the period set forth in Exhibit A.
3. License Fee
Customer must pay the License Fee at the rate and in the manner specified in Exhibit A. The License Fee is not refundable for any reason.
4. License Conditions
4.1 Customer may only use the Pingar Software in accordance with normal operating procedures notified to Customer by Pingar.
4.2 Unless expressly provided to the contrary in Exhibit A, the Pingar Software must be used on equipment that meets the minimum requirements set forth in the Associated Documentation. Use of the Pingar Software on any other equipment is at the sole risk of Customer.
4.3 Customer shall not copy, alter, modify, improve, reproduce or create derivative works of the Pingar Software (each, a “Modification”) without Pingar’s prior written approval. Any use, disclosure or copying of the Pingar Software or the Associated Documentation otherwise than in accordance with the License is strictly prohibited. Any violations of this Section 12.3 will, in addition to other remedies under this Agreement or otherwise, entitle Pingar to any available equitable remedy against Customer, including injunctive relief.
4.4 Without limitation, the License does not allow Customer to resupply the Pingar Software or the Associated Documentation to any other person or to distribute the Pingar Software or the Associated Documentation.
4.5 The License is limited to use for Customer’s own internal requirements and does not permit Customer to use the Pingar Software or the Associated Documentation to process the data of any other person or as a part of a bureau service. If use for any of these purposes is required then Customer should contact Pingar to make arrangements for the granting of an appropriate license covering such uses.
4.6 Nothing in this License will oblige Pingar to provide support or maintenance for the Pingar Software (including, by way of example and not of limitation, by giving advice, training, correction of defects, modification, upgrades or enhancements), except as expressly provided to the contrary in the Exhibit A. ANY of the prohibitions stated in this Section 12 that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining prohibitions of this Section 12 nor affect the validity or enforceability of that prohibition in any other jurisdiction.
5. Rights in the Software
5.1 Customer acknowledges that all right, title and interest (including all Intellectual Property Rights) in the Pingar Software and the Associated Documentation (including any Modifications) are and remain owned exclusively by Pingar or its licensors and Customer shall not at any time make any statement or do anything which is inconsistent with that ownership.
5.2 Customer may not alter or remove any mark of Intellectual Property ownership, or other property right which is embodied in the Pingar Software, the Associated Documentation or on the physical material in which the Pingar Software is stored when supplied to Customer.
6. Modification and Reverse Engineering
6.1 Customer may not merge, integrate and/or bundle all or any part of the Pingar Software with other programs without Pingar’s prior written approval.
6.2 Any and all Modifications of the Pingar Software shall be and remain the exclusive property of Pingar, irrespective of whether such Modifications are created Customer, Pingar or a Third Party, and whether such Modifications are authorized pursuant to this Agreement. Customer hereby irrevocably assigns to Pingar (and shall cause its subcontractors and employees to so assign) all right, title and interest, including all Intellectual Property Rights, in and to any Modifications to the Pingar Software. Customer will fully indemnify Pingar against all liability and damages which may be incurred by Pingar if any such Modifications infringe any Intellectual Property Rights of a Third Party or otherwise cause Pingar to suffer loss, damage or expense.
6.3 Customer may not reverse assemble or reverse compile or directly or indirectly allow or cause a Third Party to reverse assemble or reverse compile the whole or any part of the Pingar Software or any locking or security device used or supplied with the Pingar Software or otherwise attempt or allow any other Party to attempt to obtain the algorithms by which the Pingar Software performs its functions.
7. Installation
Customer shall be responsible for installation of the Pingar Software at its expense.
8. Warranty
8.1 Pingar represents and warrants that for a twenty (20) Business Day period following Customer Delivery (the “Software Warranty Period”), the Pingar Software shall operate substantially in accordance with the applicable Specifications (the “Software Warranty”). Pingar shall use diligent, commercially reasonable efforts to correct any material non-conformity in the operation of the Software from the Specifications in an approved hardware environment (each, a “Defect”), provided that Customer reports such Defect to Pingar within the applicable Software Warranty Period (and includes in such report sufficient information to enable Pingar to reproduce, analyze and resolve such Defect). The Pingar Software, or portion thereof, that is corrected by Pingar shall be warranted to the same extent as the originally provided Pingar Software. For avoidance of doubt, the Software Warranty shall apply only to the Pingar Software upon initial Customer Delivery, and not to Software Upgrades. The Software Warranty will only apply if (i) the Pingar Software is used and maintained under normal conditions and in accordance with the Associated Documentation, information and advice furnished by Pingar; (ii) such Defect is not caused by interface with equipment not designated under this Agreement; (iii) Customer gives Pingar every opportunity to inspect and remedy such Defect; and (iv) such Defect does not arise due to the acts or omissions of the Customer, its Affiliates or any Third party. The foregoing shall constitute Customer’s sole and exclusive remedy, and Pingar’s sole and exclusive obligation, for failure of the Pingar Software to comply with the Software Warranty.
Except for the foregoing limited and exclusive warranty, the products and services are provided “as is” and “as available,” with no warranties of any kind. Pingar hereby disclaims, and reseller waives, any and all representations and warranties express, implied, statutory or otherwise, with respect to the products, services and all components thereof including, but not limited to, the implied warranties of merchantability, fitness for particular purpose, title and non These limitations shall apply notwithstanding any failure of essential purpose.
9. Liability
9.1 In no event shall Pingar, its affiliates, and it or their directors, servants, agents and licensors be liable for any special, indirect, punitive, exemplary or consequential damages arising under this agreement including loss of profits, loss of data, savings, even if such party has been advised of the possibility of such damages in advance.
9.2 In no event shall Pingar’s liability for direct damages arising under this agreement exceed, in the aggregate, an amount equal to the total amount paid by customer for the license at the time such cause of action arises.
9.3 Customer acknowledges that the limitations on liability in this section 17 are reasonable and that the provisions of this section 17 fairly allocate the risks under this agreement between Pingar and customer and the parties have relied upon the limitations set forth herein in determining whether to enter into this agreement. The remedies provided to customer in this agreement are exclusive.
10. Termination
10.1 Pingar may terminate this Agreement if Customer commits a material breach of these terms and conditions and fails to remedy the breach within seven days after being required in writing to do so.
10.2 If this Agreement is terminated for any reason, Customer will lose all right to use the Pingar Software and the Associated Documentation, must immediately delete all copies of the Pingar Software and must return the Pingar Software and Associated Documentation to Pingar.
11. Miscellaneous
11.1 This Agreement will be governed by and construed according to the laws of New Zealand and the Parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
