This is the standard Software Licence Agreement between Customer Mindscape Limited (Mindscape) for all Mindscape Products.
In this Licence, unless the context otherwise requires or is specified otherwise:
Commercial Release means the standard release version of the Mindscape Software, but excludes any Express Release;
Customer means the entity you represent when you click to accept the terms of this Licence and includes your employees, consultants, representatives and agents;
Documentation means all instruction manuals, user guides and other information relating to the Mindscape Software made available to Customer by Mindscape;
Express Release means a version of the Mindscape Software that:
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral rights, right in a design, know-how and any other intellectual property rights;
Licence means this software licence agreement;
Licence Fee means the licence fee set out on the Mindscape Store for the version of the Mindscape Software used by Customer;
Major Version means an improved version of the Mindscape Software made available to Customer through Support Subscription;
Mindscape Store means Mindscape's online store (www.mindscapehq.com);
Mindscape Software means Mindscape's proprietary software made available to Customer on Mindscape's website (www.mindscapehq.com);
Minor Version means an improved version to the current Major Version of Mindscape Software made available to Customer through Support Subscription and includes nightly builds;
Modifications means any modification, adaptation, alteration, translation, or derivative works made from or including the Mindscape Software;
Product Source Code means the inclusion of access to the source code with the Commercial Release;
Support Services means the support and maintenance services provided by Mindscape in accordance with clause 7 if a Customer purchases Support Subscription;
Support Subscription means the availability of Support Services and Major Versions, Minor Versions and Updates provided by Mindscape for the subscription period purchased;
Subscription Fee means the fee for Support Subscription set out on the Mindscape Store for the applicable Mindscape Software; and
Updates mean the releases of fixes and software enhancements made available to the Customer through Support Subscription.
In this Licence, unless the context requires otherwise:
Upon payment of the Licence Fee, Mindscape grants Customer a limited, perpetual, non-exclusive, non-transferable licence, to use the Mindscape Software subject to the following terms. The licence so granted is per user (and not per machine).
All right, title and interest in all Intellectual Property Rights for the Mindscape Software, any Modifications and the related Documentation remain vested in Mindscape. Customer acknowledges that the Mindscape Software and its structure and organisation constitute valuable trade secrets of Mindscape.
Accordingly, subject to clause 2.4 and clause 2.5, Customer agrees not to:
Customer must reproduce, on all copies made by or for Customer, and must not remove, alter or obscure in any way all proprietary rights notices (including copyright notices) of Mindscape on or within the copies of the Mindscape Software and the Documentation furnished by Mindscape to Customer.
Where Product Source Code is provided, Customer may use any Product Source Code to the Mindscape Software and make Modifications provided that:
Where the Customer purchases a licence for the Mindscape Software that contains a runtime component (as will be specified on the Mindscape Store), Customer may package that runtime component with Customer's software to form a bundled software solution for selling or distributing to its end users provided that such a software solution:
At the request of Mindscape, Customer will provide Mindscape with a signed statement verifying that the Mindscape Software and related Documentation is being used in accordance with this Mindscape Software Licence.
The Customer agrees that it is solely responsible for complying with any applicable export control laws with respect of the export or use of the Mindscape Software, a direct product from the Mindscape Software, or any technical data relating to the Mindscape Software, outside this jurisdiction.
Customer will pay any third party licence fees for any other software not provided by Mindscape that may be required to operate the Mindscape Software on Customer's computers and to abide by any requirements of any such third parties' software licences except to the extent that they violate the terms of this Licence.
The term of this Licence will commence on the date this Licence is accepted by Customer and will end on the date this Licence is terminated under this Licence or otherwise.
Mindscape, in its discretion, may terminate this Licence immediately by notice in writing if:
On termination of this Licence, Customer will remain liable for any Licence Fees and any Support Subscription Fees payable by it to Mindscape which become due for payment before or after termination.
On termination of this Mindscape Software Licence, Customer will immediately cease to use the Mindscape Software and the related Documentation and return to Mindscape, or destroy, all copies of the Mindscape Software and the related Documentation in Customer's possession.
Within 30 days of termination, Customer must certify to Mindscape in writing that it has fully complied with its obligations under clause 3.4.
Termination of this Licence will not affect the provisions of this Licence which are intended to continue, or should reasonably, continue after termination (whether expressly stated so or not). Termination will not affect any claim by either party against the other party arising out of any breach or failure under this Licence prior to termination.
If Customer fails to pay any amount when due under this Licence, then Mindscape may withhold services and/or supplies under this Licence until all amounts due have been paid in full.
Customer will treat as confidential all information obtained from Mindscape. Mindscape's confidential information means any information relating to the business or affairs of Mindscape and includes, without limitation its designs, drawings, manufacturing know how, object codes, source codes, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing and manipulated data.
Clause 4.1 does not extend to information which:
This clause 4 will survive termination of this Licence.
Mindscape warrants that it has full power and authority to license the Mindscape Software.
Mindscape does not warrant that the Mindscape Software will meet Customer's requirements or that operation of the Mindscape Software will be uninterrupted or error free. Customer acknowledges that the Mindscape Software is of a complicated and technical nature and may have minor or inherent defects.
Mindscape will not be liable for any failure of the Mindscape Software if Modifications to the Mindscape Software, or changes to the operating environment of the Mindscape Software have been made by any person other than Mindscape.
Customer's sole and exclusive remedy under the warranty given in clause 5.1 will be limited to (at Mindscape's option):
Except for the warranties expressly given under this Licence, all express or implied warranties and representations by Mindscape (including warranties as to condition, quality, performance, merchantability, durability or fitness for purpose) are excluded to the extent permitted by law. In particular, Customer confirms that it has not relied, and will not rely, on any oral representation made by Mindscape or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Mindscape and Customer understands that such materials are only intended to convey a general idea of the products and services to which they relate. The Customer acknowledges that it is entering into this Licence for the purposes of a business and that the Consumer Guarantees Act does not apply to any goods or services delivered by Mindscape under this Licence.
Mindscape will not be liable to Customer in relation to any claim in respect of or arising out of this Licence or the subject matter of this Licence (whether in tort, contract, in respect of any indemnity, or otherwise) for:
If Mindscape is held liable to Customer for claims in respect of or arising out of the supply of Mindscape Software, then Mindscape's total liability (whether in contract tort, equity, in respect of any indemnity or otherwise) is not to exceed (in the aggregate) the lesser of:
Mindscape will not be liable for any claim made in relation to this Licence later than six months after the initial event giving rise to the claim.
Upon the payment of the Support Subscription Fee and for the period of Customer's Support Subscription, Mindscape, or a third party nominated by Mindscape, will, in relation to any Commercial Release (including any Commercial Release that includes Product Source Code provided that it has not been modified):
The Support Services do not include services provided by Mindscape relating to or resulting from:
Customer must renew its Support Subscription prior to the expiry of the then current period to maintain continuous support. Renewals can be made via the Mindscape Store and require payment of a Support Subscription Fee.
Mindscape warrants that the Support Services will be of a professional quality conforming to generally accepted industry standards and procedures.
Customer's exclusive remedy, and Mindscape's entire liability, if Mindscape is unable to perform the Support Services as warranted, will be the re-supply of the deficient Support Services.
As a condition of this Licence, if Customer uses any communication tools made available by Mindscape (such as any forum, chat room or message centre), Customer agrees only to use such communication tools for lawful and legitimate purposes. Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the Mindscape Software including (but not limited to): offers of goods or services for sale, files that may damage any other person's computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which Customer does not have the right to use).
When Customer makes any communication, Customer represents that it owns the content of the communication. Mindscape is under no obligation to ensure that the communications are legitimate or that they are related only to the use of the Mindscape Software. As with any other web-based forum, Customer must exercise caution when using the communication tools made available by Mindscape. However, Mindscape does reserve the right to remove any communication at any time in its sole discretion.
Customer indemnifies Mindscape against all claims, costs, damage and loss arising from Customer's breach of this clause 10.
The parties will attempt to settle any dispute arising from or relating to this Licence in accordance with this clause 11.1 before resorting to external dispute resolution mechanisms, except where the party seeks urgent interlocutory relief.
A party claiming that a dispute has arisen under or relating to this Licence will immediately notify the other party in writing specifying the nature of the dispute.
On receipt of the notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation or other informal means.
If, within 14 business days of the notice of the dispute, the parties do not agree on a dispute resolution technique or if the dispute is not resolved, then either party may refer the dispute to mediation. The mediation will be conducted in terms of the LEADR New Zealand Inc. standard mediation agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties within three business days of referral to mediation, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc. Each party is to bear its own costs in mediation and pay half the costs of the mediation.
During the term of this Licence and for a period of six months following its termination, Customer will not solicit any of Mindscape's employees, independent contractors or agents.
Neither party will be responsible or liable for any delay or failure in the performance of its obligations under this Licence if such delay or failure is due to circumstances outside its reasonable control including, without limitation, acts, omissions, systems, networks, equipment or data of the other party or the acts, omissions, systems, networks, equipment or data of any third party (including, without limitation, the Internet or any telecommunications network or equipment), acts of God, natural disaster, riot, terrorism, malicious damage, fire, or acts of any governmental authority. This clause 13.1 does not apply to any obligation to pay money for liabilities incurred prior to any such extraordinary circumstance occurring.
This Licence constitutes the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter. Without limiting the generality of the foregoing, where any invoice terms, delivery terms, shipping terms, payment terms or order terms conflict with or are inconsistent with the terms of this Licence, the parties agree that the terms of this Licence will prevail.
If any part or a provision of this Licence is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Licence will continue to operate.
A provision or a right under this Licence may not be waived except in writing signed by the party granting the waiver.
A party may exercise a right, power or remedy under this Licence at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Licence does not prevent a further exercise of that or of any other right, power or remedy.
This Licence may not be varied except by agreement in writing signed by the parties.
Customer will not assign or otherwise transfer this Licence or any of its rights or obligations under this Licence, whether in whole or in part, without the prior written consent of Mindscape.
This Licence is to be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.