These Subscription Terms (Subscription Terms), are our standard terms of service for use of Grizzly Software. Please read them carefully. These terms and the terms in the Subscription Schedule you have completed will form the licence agreement between Grizzly Software Limited (we, us and our) and you as the customer for a licence to access and use our Software. These Subscription Terms and your Subscription Schedule are collectively referred to as this Agreement).
If you have entered into another agreement with us for specific services or software, then if there is any conflict of terms, the terms of the latest agreement will take precedence to the extent of the conflict.
In these Subscription Terms, the following definitions apply:
Authorised User means your employees or individual contractors authorised by you to use the Software;
Business Day means any day excluding Saturdays, Sundays and statutory public holidays in Auckland;
Commencement Date means in respect of any Software, the date that you first download or have access to use that Software;
Defect means a bug, error or defect in the Software;
Documentation means any instruction manuals, user guides and/or other information made available by us to our customers generally in connection with the use of the Software;
Force Majeure means, in relation to either party (Affected Party) an event or circumstance which is beyond the reasonable control of that party, including any:
· impediment beyond the reasonable control of either party including plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including declared natural disaster, quarantine, curfew restriction, natural disaster or other employee restrictions;
· governmental or regional or local authority restraint, legislation or bylaw, or regulatory intervention by any government agency; or
· failure of third-party networks or services or critical or dependant supplies by any third party, or failure of the public internet, communications networks, or power outages or interruptions;
Initial Term means the initial term of this Agreement, as set out in your Subscription Schedule;
Insolvency Event means, in respect of a party:
· that party has gone into liquidation or a receiver or statutory manager is appointed in respect of itself or any material part of its assets (other than for the purposes of a solvent restructuring);
· that party has ceased to exist, other than as part of an amalgamation, in which the party is one of the companies being amalgamated;
· that party has made an application to a court for, or a resolution has been proposed or any other step has been taken in anticipation of, the appointment of an administrator, or an administrator has been appointed;
· any step has been taken to enter into any arrangement between that party and its creditors;
· that party has become unable to pay its debts as they fall due or is presumed under applicable legislation to be unable to pay its debts; or
· is the subject of any event analogous in nature to those listed in this definition, under the laws of any relevant jurisdiction;
Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know‑how and trade secrets, operating manuals, quality manuals and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers and benefits in respect of the same;
Licence means the licence granted by us to you to access and use the Software and Documentation as set out in clause 2 of these Subscription Terms;
Licence Fees means the licence fees payable by you for your use of the Software, which will be calculated by us in accordance with the applicable Pricing Tier;
Licence Type means the licence type selected in your Subscription Schedule;
Losses means losses, damages, costs and expenses;
Password means a password and any associated user ID enabling you and/or Authorised Users to access the Site and/or the Software;
Permitted Purpose means in respect of any Software the purpose(s) for that Software and Licence Type set out in your Subscription Schedule;
Pricing Tier means a pricing tier for the Software that is based on your Revenue, as set out in your Subscription Schedule;
Renewal Term means the renewal term set out in your Subscription Schedule;
Revenue means in respect of any month, your gross monthly revenue as determined by your use of the Software;
Site means the website hosted and maintained on behalf of us at www.grizzlysoftware.com (or other replacement URL notified by us from time to time);
Software means the specific software you wish to license, being software which is owned, or permitted to be licensed, by us as modified or updated by us during the Term;
Subscription Schedule means the Subscription Schedule you have completed for the Software you wish to use and which refers to these Subscription Terms;
System Administrator means your designated contact and one alternate contact as the responsible party for communicating with us during the Term;
Term means the term of this Agreement, being the Initial Term and any Renewal Term until terminated as provided in these Subscription Terms;
Update means any modification or enhancement of, or improvement to, the Software which is made available by us from time to time during the Term; and
Upgrade means a significant release of the Software incorporating a feature or capability not present in the Software in the previous release, which is made available by us to our customers generally from time to time during the Term.
Your Data means any information and data collected by and stored in our (or our third party service provider's) systems and/or servers as a result of your use of the Software but excludes, for the avoidance of doubt, any data collected by us in the course of making the Software and related services available to you;
· expressions defined in these Subscription Terms have the defined meaning throughout this Agreement;
· clause and other headings are for ease of reference only and will not affect the interpretation of this Agreement;
· references to any party include that party's successors and permitted assigns;
· references to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
· references to the singular include the plural and vice versa; and
· the term includes or including (or any similar expression) is deemed to be followed by the words "without limitation".
If there is a conflict between a provision in:
· the Subscription Schedule; or
· these Subscription Terms,
the Subscription Schedule will take precedence to the extent of such conflict.
We will provide you with access to and use of the Software and the Documentation on the basis set out in this Agreement. The Software and any Documentation will be made available to you through the Grizzly Software login page at the Site.
We grant you a non-exclusive, personal, non-sub-licensable, non-transferable licence for the number of Authorised Users recorded in your Subscription Schedule to access and use the Software and the Documentation for the Permitted Purpose during the Term on the terms set out in this Agreement. Subject to applicable law, any other use of the Software or Documentation without our prior written consent will be a material breach of this Agreement.
Except as expressly set out in these Subscription Terms or as permitted by applicable law, you must not:
· permit any third party to access or use the Software or Documentation or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
· adapt, modify, translate or create derivative works from the Software or Documentation, nor permit the Software or any part of it to be combined with, or become incorporated in, any other software other than in accordance with this Agreement or the Documentation);
· attempt to discover or gain access to the source code of the Software or de-compile or reverse engineer the whole or any part of the Software;
· interfere with the proper working of the Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Software or Site or any associated computer system, server or internet-connected device;
· employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use the Software or Site in order to circumvent any restrictions on the scope of authorised use in this Agreement; or
· obscure, amend or remove any proprietary notice on, or visible during the operation or use of, the Software or Documentation.
· comply with the access and control requirements within these Subscription Terms;
· control and supervise access and use of the Software, and ensure that the Software is only accessed and used by Authorised Users in accordance with these Subscription Terms;
· comply with our instructions in relation to access to and use of the Software;
· comply with all applicable laws relating to your use of the Software;
· be responsible for obtaining and maintaining all equipment, software and systems needed to enable you to receive and use the Software;
· provide reasonable assistance and information required by us in order to perform our obligations under this Agreement;
· promptly notify us on becoming aware of any person infringing our Intellectual Property rights in the Software and/or Documentation;
· not sub-license, assign, transfer, lease, rent, distribute or resell the Software, or any rights to access or use the Software, to any other person;
· comply with our reasonable instructions relating to access to, and use of, the Software; and
· be responsible for all use of the Software by Authorised Users as if such use was use by you, and you acknowledge that we will not be responsible for any misuse of the Software by the Authorised Users.
You acknowledge that Amazon Web Services (AWS) is our current cloud services provider, and that certain AWS standard terms may apply in relation to your access to and use of the Software under this Agreement. You will comply with any acceptable use or other AWS terms relating to your use of the Software that we notify in writing to you from time to time, including the applicable terms at https://aws.amazon.com/legal/ and https://aws.amazon.com/legal/service-level-agreements/.
· provide the Software under this Agreement with due care, skill and diligence;
· use reasonable endeavours to give advance notice of any planned Software unavailability or outage by email; and
· use reasonable endeavours to rectify any unscheduled Software outages as quickly as possible.
We may make Updates or Upgrades available to you during the Term at no additional charge. The Updates or Upgrades we make to our Software will be in accordance with our standard practices and procedures.
You are responsible for maintaining a suitable internet connection to enable you to access the Software via the Site.
To assist our communication with you, you will designate a contact and one alternate as the responsible party for communicating with us during the Term (System Administrator). Your System Administrator may establish accounts for Authorised Users under this Agreement.
You acknowledge that:
· access to and use of the Software by you and Authorised Users will require use of a Password;
· you are responsible for ensuring the security and confidentiality of your and/or your Authorised Users’ Passwords; and
· you are responsible for all use of the Software and actions taken through use of your and/or your Authorised Users’ Passwords. You must immediately notify us if you become aware of any unauthorised use of your or any Authorised Users’ Password(s) or any unauthorised access to the Site or the Software.
We may suspend your access to the Site and/or Software if we become aware of any unauthorised access to or use of the Site and/or Software using a Password.
We may, at our sole discretion, provide you with support services at no charge.
All Intellectual Property rights in the Software, the Documentation, the Site and Grizzly Software's logos, trade marks and any other thing developed or created by us under or connection with this Agreement (together, Grizzly Software IP) are owned by us and/or our licensors.
You acknowledge and agree that there is no transfer of title, Intellectual Property or ownership of the Grizzly Software IP (or any part of it) to you under this Agreement.
If you are a first-time user of the Software, you will be offered to use the Software free of charge on a trial basis for a period of up to 14 days (Trial). The price for your use of the Software for the first 14 days after the Trial will be calculated on the basis of the Pricing Tier applicable to your Revenue as determined during the Trial.
You may, at any time during the Trial, cancel your Trial by notifying us via the Site. If you do not exercise this right of cancellation:
· the licence will renew automatically on expiry of the Trial; and
· the applicable Licence Fee will be payable by you following expiry of the Trial in accordance with the terms of clause 7.
You must pay the Licence Fee to us as provided in the Subscription Schedule.
All monetary amounts in this Agreement are stated and are payable in US dollars, unless expressly stated otherwise.
We may review and vary the Licence Fees at any time on or after expiry of the Initial Term. We will warn you by giving you at least 60 days’ in advance of such variation.
Unless you have used the Software under a previous subscription within the previous 12 months, the Licence Fee for each month during the Term will be calculated in accordance with a Pricing Tier based on your Revenue for the immediately preceding month. The Licence Fee may vary from month to month if your Revenue changes during the Initial Term or any Renewal Term (as applicable).
If you have used the Software under a previous subscription within the previous 12 months, the Licence Fees payable for the first month of the Term will be based on your Revenue for the last month of your previous subscription.
All Licence Fees and Upgrade Fees are exclusive of GST. You must pay GST to us, where applicable, at the time you pay the Licence Fees, at the rate and in the manner prescribed by applicable law.
You must pay the Licence Fees on the dates or in accordance with the timeframes recorded in the Subscription Schedule.
You must pay all reasonable costs (including collection costs) incurred in recovering or attempting to recover any overdue amounts that you owe under this Agreement.
We warrant that:
· the Software will operate in accordance with the Documentation in all material respects; and
· we have the right and authority to grant you the Licence in accordance with these Subscription Terms.
To the fullest extent permitted by applicable law, your sole and exclusive remedy for breach of an express warranty within these Subscription Terms is, at our sole discretion:
· the repair or replacement of the Software; or
· a refund or waiver of Licence Fees for the Initial Term or the current Renewal Term as applicable.
Our obligation under these warranties are subject to your compliance with the terms of this Agreement.
You agree that you:
· must satisfy yourself as to the adequacy, appropriateness and compatibility of the Software for your requirements;
· have not relied on any statements or representations on the part of us as to the performance or functionality of the Software, except as expressly recorded in these Subscription Terms; and
· exercise and rely on your own professional judgement and expertise (or the professional judgement and expertise of your contractors or service providers other than us) in all use of the Software and decisions made on the basis of data or other outputs from use of the Software.
To the fullest extent permitted by applicable law, and except as expressly set out in these Subscription Terms, we exclude all warranties, conditions, terms, representations, commitments and undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose. We do not warrant that the Software will be uninterrupted or free of Defects or that all Defects will be corrected.
We will have no liability to you under or in connection with this Agreement (whether in contract, tort or otherwise) in respect of any:
· indirect, consequential or special Losses suffered or incurred by you;
· loss of data, profits, revenue, business or goodwill; or
· losses suffered or incurred by you, to the extent to which these result from any act or omission by you or your Authorised Users (including any breach of this Agreement or failure to enter complete and accurate Your Data into the Software).
Our total liability to you under or in connection with this Agreement (whether in contract, tort or otherwise) is limited to the total amount of Licence Fees you have paid to us under this Agreement in the 12 months preceding the events giving rise to a claim.
It is your responsibility to take reasonable steps to ensure that all your Data that you enter into the Software is correct and accurate. You may be able to upload files containing Your Data to the Software. Where you upload any such files:
· you acknowledge and agree that we will have access to the database containing Your Data, including in order to calculate or verify the applicable Pricing Tier. We will only view Your Data with your permission; and
· you must ensure that the files do not contain any content which infringes another person's Intellectual Property or which is contrary to any applicable laws. In the event that you breach this clause, without limiting any of our other rights or remedies, we may remove the relevant files or content from the Software.
Your Data is, and will remain, your property and you own all rights, title and interest in and to Your Data. You grant to us and our contractors and service providers a non-exclusive, worldwide, perpetual, sub-licensable licence to use, store, modify and copy Your Data in order to provide the Software to you and to exercise or enforce any of our rights and remedies under this Agreement (Permitted Uses). We will not use or disclose Your Data for any purpose other than the Permitted Uses or as permitted or required under applicable laws.
We will have in place appropriate technical and organisational security measures to help protect Your Data from unauthorised use, access or disclosure.
We may suspend your, or any or all of your Authorised Users’, access to the Software if:
· any Licence Fees, or other fees or charges payable by you under this Agreement are at least 30 Business Days overdue for payment; or
· you have committed a material breach of this Agreement.
We will provide you with 5 Business Days’ notice before suspending your account specifying the relevant non-payment or breach and advising you of our intention to suspend access to the Software. If you fail to pay those fees or charges in full (together with any applicable default interest) or remedy the material breach to our satisfaction within 5 Business Days of receiving a notice from us, we will suspend your account.
If we suspend your, or your Authorised Users', access to the Software, we will lift that suspension and allow access to the Software again once the relevant non-payment has been made in full (together with any applicable default interest) or the breach has been remedied to our satisfaction.
This Agreement will commence on the Commencement Date and, unless terminated earlier, will continue until the expiry of the Initial Term.
Following the expiry of the Initial Term, this Agreement will renew automatically for the applicable renewal period(s) specified in the Subscription Schedule until it is terminated in accordance with its terms.
Either party may terminate this Agreement with effect from, or at any time after, expiry of the Initial Term by giving not less than 30 days’ prior written notice to the other party.
Either party (the First Party) may terminate this Agreement at any time and with immediate effect by written notice to the other party (the Second Party) if the Second Party:
· is in material breach of any of its obligations under this Agreement, and has failed to remedy the breach within 30 days of receiving written notice from the First Party to remedy the breach; or
· suffers an Insolvency Event.
Without limitation, a material breach includes you failing to pay any Licence Fees due to us, or any unauthorised modification, reproduction, or distribution you perform in relation to the Software.
On expiry or termination of this Agreement:
· you must cease to access, and discontinue all use, of the Software;
· you must destroy any copies of the Documentation in your possession or control;
· you will pay any outstanding Licence Fees or other amounts payable under this Agreement within 7 days of termination;
· we will retain Your Data for a period of 30 days following termination, following which we will be entitled to delete Your Data from our systems;
· all licences in this Agreement will terminate automatically unless expressly provided otherwise;
· the termination will be without prejudice to either party's rights and remedies in respect of any breach of this Agreement by the other party, where the breach occurred before the termination; and
· the provisions of clauses 5, 6, 8, 9, 10 and this clause 12, together with those other provisions of this Agreement that expressly or by implication are intended to come into force or continue in force on or after its expiry or termination, will remain in full force and effect.
We reserve the right to amend this Agreement from time to time (at our absolute discretion) by providing notice of the amendments by email and/or on the Site (each a form of Notification). Any such amendments:
· will be commercially reasonable and made in good faith;
· may be provided in the form of an updated version of this Agreement;
· will take effect on the date specified in our Notification or (where we have provided an updated version of this Agreement) on the effective date specified at the start of the updated version of this Agreement (which date must, in either case, be at least 10 Business Days after our Notification); and
· must not provide, or have the effect of providing, that we no longer have any obligations to provide the Software to you.
By continuing to use the Software following any amendment to the Agreement, you will be taken as having agreed to comply with the terms and conditions as amended.
Any other amendments to this Agreement must be agreed by both parties in writing.
A party may, at any time while there is a genuine dispute relating in any way to this agreement (Dispute), give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that the parties meet at an agreed location or attend a teleconference within 10 Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute.
Neither party may issue any legal proceedings (other than for urgent interlocutory relief) in respect of any such Dispute unless that party has first taken all reasonable steps to comply with this clause 14.
You may not assign or otherwise transfer any of your rights or obligations under this Agreement to any other person without our prior written consent. We may assign or transfer any or all of our rights or obligations under this Agreement at our sole discretion.
We may appoint subcontractors to perform any of our obligations under this Agreement. We will remain primarily liable to you for any breaches of this Agreement by our subcontractors.
Neither you or us (Affected Party) will be liable for any act, omission or failure by the Affected Party under this Agreement if that act, omission or failure results directly from a Force Majeure event, provided that:
· whenever the Affected Party becomes aware that such a result has occurred or is likely to occur, the Affected Party will notify the other accordingly; and
· the Affected Party will continue to use its best endeavours to perform its obligations as required under this Agreement.
This Agreement is governed by the laws of New Zealand. Both parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
This Agreement and the documents and information referred to in this Agreement record the entire understanding and Agreement between the parties relating to the matters dealt with in this Agreement, and supersede all previous understandings or Agreements (whether written, oral or both) relating to these matters.
Any notices required under this Agreement must be in writing and delivered by registered post or email to:
· in the case of notices to us, our address as set out on the Subscription Schedule; and
· in the case of notices to you, your address as set out on the Subscription Schedule.
Any notice that a party sends to the other party will be deemed to have been received by other party 5 Business Days after posting or, if sent by email, at the time of transmission (provided the sender does not receive an automated delivery failure notification).
The rights, powers and remedies provided under this Agreement are cumulative and are in addition to any rights, powers or remedies provided by law.
Any waiver by you or us of any rights or remedies under this Agreement will be effective only if recorded in writing. No failure to enforce any provision of this Agreement at any time by either party will in any way affect, limit or waive the party’s right to subsequently require strict compliance with this Agreement.