Licence Agreement
Linc-Technologies Ltd (New Zealand)
AGREEMENT
1 Definitions
Application means the Hero product that You have subscribed for as described in the Schedule (part A).
Business Day means a day (other than a Saturday or Sunday) on which registered banks are open for general business in Christchurch, New Zealand.
Business Hours means the period of time commencing at 9am and running until 5pm each Business Day.
Commencement Date means the date that the Application and Services become available to You or as set out in the Schedule (whichever is earlier).
Confidential Information includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
Data is any data entered into the Application by You or a Participant or on Your or a Participant’s authority.
Fees means the Subscription Price and any additional fee payable by You for the Services provided under this Agreement at the rates set out in the Schedule (part A) and as amended pursuant to clause 9.5.
Participant means any person that You give authority to access the Data.
Services means any services related to the Application as provided by the Company from time to time, including information sharing, information viewing, back office, support and training services and software.
Software means Our software that supports the Application.
Subscription Period means the period commencing on 1 February each year and running until 31 January the following year.
Subscription Price means the annual price payable by You for the Subscription in each Subscription Period in the amount set out in the Schedule (part A) and as amended pursuant to clause 9.5.
Subscription means Your annual subscription of the Application and includes those Services set out in the Schedule (part B).
Term means an initial period of 12 months from the Commencement Date, and successive further terms of 12 months each until the Agreement is terminated by either party giving three months prior notice in writing to the other party, or otherwise terminated in accordance with this Agreement.
Website means our website (https://www.our-hero.com).
2 Interpretation
2.1 Reference to:
(a) the singular includes the plural and vice versa; and
(b) “$” or “dollars” refers to New Zealand dollars and, unless otherwise specified, all amounts payable by a party under this Agreement are to be paid in New Zealand currency.
2.2 In this Agreement, the meaning of general words is not limited by specific examples introduced by the words “including”, “for example” or similar expressions.
3 Use of the Application and Services
3.1 The Company agrees to provide and grants You, Your employees, agents, representatives and consultants, and any Participant, the right to use the Application and access the Services pursuant to Your Subscription. This right is non-exclusive, non-transferable, and limited by and subject to the terms of this Agreement.
3.2 From the Commencement Date, You, Your employees, agents, representatives and consultants, and any Participant that uses the Application and accesses the Services under Your Subscription (whether or not authorised by You) are bound by the terms of this Agreement. You agree and acknowledge that:
(a) You are fully responsible for Your acts and omissions and the acts and omissions of Your employees, agents, representatives and consultants, and any Participant that uses the Application and access the Services under Your Subscription (whether or not authorised by You);
(b) You must use reasonable endeavours to ensure that Your employees, agents, representatives and consultants, and any Participant that uses the Application and accesses the Services under Your Subscription comply with the terms of this Agreement.
3.3 Without limiting the Company’s other rights and remedies, if You breach any of the terms of this Agreement the Company may:
(a) deny You access to the Application (in full or in part); and/or
(b) refuse to supply the Services to You (in full or in part).
4 Information and Data
4.1 You agree to provide Us with all information We may require to make the Application and Services available to You.
4.2 Upon termination of the Agreement, the Company will give You 30 days to extract Your Data from the Application in .csv format or any other such industry standard format, after which time the Company will destroy all of Your Data and such information will not be recoverable by You, unless you have obtained the Company’s prior written agreement to have a longer period of time to extract Your Data and in which case the Company may charge at its sole discretion an additional Fee to keep Your Data until you have extracted it. The Company is not liable for any loss resulting from deletion of Your Data in accordance with this clause.
4.3 The Company complies with best practice policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss of Data. Notwithstanding any other clause in this Agreement, the Company expressly excludes liability for any loss of Data no matter how caused.
5 Services Support
5.1 The Company agrees to provide reasonable support to You in relation to the Application via an inbuilt helpdesk messaging service and email service during Business Hours. We shall determine whether the extent or nature of the support requested is reasonable and shall not be required to provide the support if We do not consider it reasonable.
5.2 The Company will endeavour to respond to any query within 48 hours of the lodgement of that query.
5.3 If a query from You requires on-site attendance by a representative of the Company, a daily call-out fee is chargeable for each day (or part thereof) that a representative is required onsite. The daily call-out fee will be determined by the Company from time to time at its sole discretion, having regard to (among other things) Your location.
5.4 Helpdesk support does not extend to leadership and pedagogical consultation, customisations, enhancements to the application or rectifying user errors. If a query is of this nature, additional services may be available to You at Our current hourly rates.
6 Modifications and Upgrades
6.1 We reserve the right to modify the Application and/or the Services with or without prior notice to You, however We will notify You immediately when We have made any changes. Subject to giving You reasonable prior notice, We also reserve the right to discontinue the Application or any Service.
6.2 The Company may upgrade the Application or any of the Services. No fees will apply in respect of any minor upgrade. The Company reserves the right to require an additional payment for any significant upgrade to the Application or any of the Services. Acceptance of any such upgrades offered will be at Your option.
7 Prohibited Activities
7.1 You must not use the Application or access the Services in a manner that would:
(a) violate any law, statute, ordinance or regulation; or
(b) encourage, promote, facilitate or instruct others to engage in illegal activity; or
(c) promote hate, violence, racial intolerance, or the exploitation of a crime.
7.2 At our total discretion We may remove and destroy any Data that We deem breaches clause 7.1 or is otherwise inappropriate.
8 Your Obligations
When using the Application and accessing the Services, You and each Participant (where applicable) must:
(a) only use the Application and access the Services through Your login and password and keep Your password confidential. You must change Your password immediately if You believe that it has become known to any unauthorised person;
(b) immediately notify Us of any unauthorised use of Your password or any other security breach and We will reset Your password for You in the event You are unable to do this;
(c) follow Our reasonable instructions and comply with any specific terms that We publish on the Application from time to time;
(d) only use the Application and access the Services for legal and legitimate purposes;
(e) not attempt to access any part of the Application or Software that is not intended to be accessed by You;
(f) not attempt to undermine the security or integrity of the Company’s computing systems or networks or, where the Application and Software is hosted by a third party, that third party's computing systems and networks;
(g) not use, or misuse, the Application or Software in any way which may impair the functionality of the Application or Software, or impair the ability of any other party to use the Application or Software;
(h) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Application or Software is hosted;
(i) not transmit, or input into the Application or the Software, any files that may damage any other party’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(j) not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Application or the Software except as is strictly necessary to use either of them for the intended and normal operation.
9 Subscription Price and Payment
9.1 Subject to clause 9.3, You agree to subscribe for the Subscription at the Subscription Price.
9.2 Subject to clause 9.3, the Subscription Price is payable in advance for each Subscription Period and must be made within 30 days of the commencement of the relevant Subscription Period. All other Fees are payable within 30 days of the date of the relevant invoice.
9.3 Notwithstanding any other clause in this Agreement, if the Commencement Date is after 1 February, then the Subscription Price for the first Subscription Period will be charged on a pro-rata basis having regard to the number of school terms in which you will receive the benefit of the Subscription. In this case, the Subscription Price will be payable in advance within 30 days of the Commencement Date.
9.4 The Fees are exclusive of taxes or levies imposed by tax authorities. You are responsible for payment of all such taxes or levies imposed on You relating to the Application and/or the Services.
9.5 The Subscription Price and any other Fees are subject to change at our sole discretion including as a result of any increase in hosting fees We must pay to a third party. We are not liable to You or any third party for any modification, price change, suspension or discontinuance of the Application or any Service. You may immediately terminate this Agreement in the event that You consider, on reasonable grounds any changes to be unjustified.
9.6 Notwithstanding any other clause in this Agreement, the Company is not required to provide any refunds or credits of any Fees paid by You (including the Subscription Price) for:
(a) non-use of the Application and/or Services;
(b) termination of the Agreement by You;
(c) changes to the Application and/or the Services;
(d) any loss of Data for any reason whatsoever; or
(e) Your inability to access the Application and/or the Services for any reason whatsoever.
10 Intellectual Property
10.1 Title to, and all intellectual property rights in, the Application, the Services and any information or documentation relating to the Application or the Services remain the property of the Company (or its licensors).
10.2 Title to, and all intellectual property rights in, the Data (other than non-personally identifying Data and aggregate usage information) remains with the person(s) who has those rights in that Data, including any Data that is subject to a Creative Commons copyright licence. However, Your access and any Participant’s access to the Data is contingent on full payment of the Subscription Price and all other Fees when due. You grant the Company, and have obtained authority from each Participant to grant to the Company, a licence to use, copy, transmit, store, and back-up Your and each Participant’s information and Data for the purposes of enabling You and each Participant to use the Application and access the Services and for any related purpose.
10.3 You acknowledge that in the event You suggest an idea or solution that the Company utilises to improve the Application and/or the Services, then the intellectual property rights in that idea or solution will vest totally with the Company.
11 Warranties and Acknowledgements
11.1 You warrant to Us that You are legally capable of forming a binding contract and the information provided by You to the Company is true and correct.
11.2 You acknowledge that You:
(a) are authorised to access the information and Data that You or any Participant inputs into the Application; and
(b) are also authorised to access the processed information and Data that is made available to You through Your use of the Application and access to the Services (whether that information and Data is Your own or that of anyone else).
11.3 The Company has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Application or access the Services on behalf of or for the benefit of anyone other than Yourself (whether a company, body corporate, organisation or otherwise) You agree that:
(a) You are responsible for ensuring that You have the right to do so;
(b) You are responsible for authorising any person who is given access to information or Data;
(c) the Company has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
(d) the Company has no responsibility if:
(i) the Company refuses to provide any person access to Your information or Data in accordance with this Agreement; and/ or
(ii) the Company makes available information or Data to any person with Your authorisation.
11.4 You acknowledge that the Application and Services are provided as a tool to facilitate interaction between You, Your pupils and the pupils’ guardians and school teachers. The Company is an independent party to the activities conducted when You or a Participant use the Application and Services. The Company has no responsibility or liability whatsoever in relation to the activities that You or a Participant undertakes on the Application or the Services.
11.5 Access to the Application and use of the Services is on an "as is” basis and at Your and any Participant’s own risk.
11.6 The Company gives no warranty about the Application or the Services except as expressly specified in this Agreement. Without limiting the foregoing, the Company does not warrant that the Application or Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.
11.7 The Company does not warrant that the use of the Application and access to the Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for using the Application and accessing the Services, including public telephone services, computer networks, hosting connections and the internet, can be unpredictable and may from time to time interfere with or prevent use of the Application and access to the Services. The Company is not in any way responsible for any such interference or prevention of Your use of the Application or access to the Services.
11.8 It is Your sole responsibility to determine that the Application and the Services meet the needs of Your business and are suitable for the purposes for which they are used.
11.9 You remain solely responsible for complying with all applicable laws in Your use of the Application and access to the Services. It is Your responsibility to check that storage of and access to Your and each Participants Data via the Application and the Software will comply with laws applicable to You and each Participant (including any laws requiring You and any Participant to retain records).
12 Intentionally left blank
13 Limitation of Liability
13.1 To the maximum extent permitted by law, the Company excludes all liability and responsibility to You, any Participant or any other person in contract, tort (including negligence), or otherwise, for any loss (including, loss of any Data or other information) or damage resulting, directly or indirectly, from any use of, or reliance on, the Application and/or the Services.
13.2 If, despite the other provisions of this Agreement, We are found to be liable to You then Our liability shall be limited in respect of any one incident, or series of connected incidents, to the amount of the Fees actually paid by You in the first 12 months of the Term(the Capped Amount). Notwithstanding any other provision of this Agreement, in no event shall Our liability to You exceed the Capped Amount, and We shall never be liable to you for any loss of profits, consequential or indirect loss.
13.3 If You are not satisfied with the Application or any Service, Your remedies are to terminate this Agreement by giving three months prior notice in writing to the Company, but the Company is not required to provide any refunds or credits of any Fees paid by You (including the Subscription Price) pursuant to clause 9.6 except as set out in this clause. You may require the Company to reimburse to You the Subscription Price paid by You to the Company if there is a material defect in the Application and/or the Services caused by the Company and You advise the Company of such defect within 3 months of the Commencement Date. This Agreement shall automatically terminate in the event of any reimbursement of the Subscription Price pursuant to this clause.
14 Confidentiality
14.1 Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement.
14.2 Neither party will, without the prior written consent of the other, disclose or make any Confidential Information or Data available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
14.3 The provisions of these clauses shall not apply to any information which:
(a) is or becomes public knowledge other than by a breach of this clause;
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the Confidential Information.
15 Privacy
15.1 The Company maintains a privacy policy that sets out how We collect, use and protect Your personal information, as well as Your rights in respect of this information. A copy of the current policy is available on the Website. The Company reserves the right to change its privacy policy at any time by posting changes on the Website. You will be taken to have accepted that policy and any amendments to it by entering into this Agreement.
15.2 You consent to receiving regular electronic newsletters and any other promotional material sent to Your e-mail address and/or posted within the School’s home page of the Application, that the Company may wish to send to You from time to time.
16 Breach
If You:
(a) breach any term of this Agreement (including by non-payment of the Subscription Price or any other Fee) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; or
(b) breach any term of this Agreement and the breach is not capable of being remedied (which includes where the Subscription Price or any other Fee is more than 30 days overdue),
the Company may:
(c) immediately terminate this Agreement;
(d) suspend for any definite or indefinite period of time, Your Subscription and use of the Application and access to the Services; and/or
(e) suspend or terminate access to all or any Data.
17 Accrued Rights
Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You and each Participant will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination including the Subscription Price and any other Fees; and
(b) immediately cease to use the Application and access the Services.
18 Expiry or Termination
This clause and clauses 10, 14 and 15 survive the termination of this Agreement.
19 Amendment of terms
The Company reserves the right to amend the terms of this Agreement at any time, effective upon the posting of the modified terms on its Website and/or the Application. The Company will make every effort to communicate these changes to You to Your email or notification via the Application. You are obligated to communicate any amendments to the Participants. The preceding provisions of this clause are subject to You first confirming Your approval of such amendments to the terms of this Agreement (such approval not to be unreasonably withheld), and the Company has the right to immediately terminate this Agreement in the event that approval is not given by You under this clause.
The Company shall act reasonably in relation to all dealings on the above.
20 Service availability
Whilst the Company aims for the Application and the Services to be available during the times specified in this Agreement, it is possible that on occasions the Application or Services may be unavailable for any reason including to permit maintenance or other development activity to take place. If for any reason the Company has to interrupt Your use of the Application and/or access to the Services on a planned basis for longer periods than the Company would normally expect, the Company will use reasonable endeavours to publish in advance details of such activity on the Application.
21 Entire agreement
The terms of this Agreement, together with the Company’s privacy policy and the terms of any other notices or instructions given to You, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and the Company relating to the Subscription and the other matters dealt with in this Agreement.
22 Waiver
If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
23 Delays
Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
24 Assignment
24.1 The Company may assign or transfer any rights to any other person without the School’s prior written consent.
24.2 You may not assign or transfer any rights to any other person without the Company’s prior written consent. The Company is not obligated to provide any reasoning for withholding consent.
25 Governing law and jurisdiction
You accept that New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
26 Severability
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
27 Notices
Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to the Company must be sent to support@linc-ed.com or to any other email address notified by email to You by the Company. Notices to You will be sent to the email address which You provided at the time of subscribing for the Application.
28 Rights of Third Parties
A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.