In this agreement, the following terms have the following meanings:
Data means geographic information system (GIS) data, including mapping, asset and other infrastructure related data, belonging either to you or a third party as the case may be;
Fee means the relevant Fee described by us on our website and payable by you for the User Licence(s) selected by you, and also means the support Fee as described by us from time to time in respect of any non-subscription User Licences;
Purpose means the purpose of accessing Data, solely for your own internal business purposes, and then viewing that Data (in real time or delayed as you choose) in a visually enhanced and more user friendly manner;
Software means our augmented reality GIS software which utilizes mobile technology for the enhanced visualization of asset data, and includes an app which is downloaded to a User Device under a User Licence;
Support means Software related assistance by our technical personnel to you or your personnel by telephone, skype or email, during normal business hours in Auckland, New Zealand;
Term means the duration of this agreement in respect of the relevant User Licence, as described in clause 7.1;
User Device means a desktop computer or mobile computing and communications device which is compatible with using the Software, as per the terms of this agreement;
User Licence means a single licence to use the Software on a single User Device in accordance with the terms of this agreement;
We and our and us means Augview Limited; and
You and yours means you our customer, being a company, partnership or other organisation or person as entered by you in our systems and as accepted by us.
Grant and Scope of Licence
The Software is designed solely for the Purpose and no other purpose or use. You must not attempt to use the Software in any way other than for the Purpose and via a User Device. In particular, the Warranties, Acknowledgements & Indemnities in clause 6 below apply at all times.
Your licence consists of one or more User Licences, as you decide to purchase from us. These terms apply to each User Licence you purchase from us.
We grant you a non-exclusive licence to use the Software, solely for the Purpose, for the Term, and otherwise only in accordance with the terms of this agreement.
We will provide Support to you within the Fee for all subscription (i.e. short term) User Licences, and for all other User Licences only if you have paid the additional support related Fee as described by us from time to time. Other than as stated in this clause, we are not required to provide any other support to you, but may do if we wish to do so.
Fees and Payment
You must pay the relevant Fee per User Licence to us. Payment of the Fee in full is required before you gain access to the Software unless we decide, at our sole discretion, to grant credit terms to you, in which case you will only gain access to the Software if and when we approve any credit terms.
If you request credit terms from us, then you authorise us to conduct one or more credit reference checks in relation to you at any time. If we decide to extend credit to you, then unless otherwise agreed in writing, those payment terms will be strictly 20th of the month following the month in which the invoice is dated. If we decide to extend credit to you, we may also decide at any time to revoke that, without giving any reason, and require payment in full before use.
Unless expressly stated otherwise, all Fees are exclusive of GST which must be paid to us as well as the Fee, at the same time the Fee is paid.
All payments must be made direct to our nominated bank account, in full, without any set-off, counter-claim or other deduction whatsoever. We will be entitled to charge default interest at the rate of 10% per annum (calculated daily) on any amounts not paid by the due date. Default interest will apply from the date payment was due until the date payment is received by us in full, but without prejudice to our other rights or remedies.
We own or otherwise have the right to licence the use of the Software to you in accordance with this agreement. At no time will you gain any proprietary or other rights in or to the Software or to any of our other intellectual property, other than the limited use rights granted expressly by this agreement.
Warranties, Acknowledgements & Indemnities
You warrant that:
you will not at any time copy, decompile, reverse engineer, sub-licence, resell, or otherwise attempt to use or deal with the Software, other than its intended use for the Purpose in accordance with this agreement.
you have access, at your cost, to Internet or 3G (or higher) telecommunications connectivity in order to be able to effectively use the Software; and
your User Devices are compatible with the Software and that before purchasing one or more User Licences from us, you have viewed our device compatibility statements (on our website) and if in doubt, you have contacted us to raise any concerns you may have;
you have full authority to access and use all Data which you or your authorised users decide to access using the Software;
you have full authority to enter into this agreement in accordance with its terms;
You acknowledge and accept that:
The Software is a visual aid tool only, which makes Data easier to view and manage, and that it does not operate so as to guarantee or represent in any way that the Data being used by you is correct or otherwise accurate. That responsibility lies with you or the third party Data supplier. In particular, you acknowledge and accept that prior to any physical works being undertaken at any site, you will undertake further investigation and assessment of the Data, the site, and any other information required from any third party to confirm the accuracy or otherwise of any Data you have been using in conjunction with the Software.
You and your users are fully responsible for all Data amendments and other Data use that may be made by them, and for the secure storage of that Data for your use.
We cannot guarantee that the Software will be fully compatible with your User Devices and that given your warranty in clause 6.1(c) above, you accept that risk.
We cannot and do not guarantee that the Software will operate fault free at all times.
You will be responsible for the Software on each User Device at all times irrespective of you may use the device or whether the device is lost, stolen or damaged. You must immediately notify us in the event that any of your User Devices are lost, stolen or damaged.
Any loss or degradation of performance of the Software could be due to telecommunications or other third party network issues, or due to your User Device(s), and that our reasonable conclusions in that regard will be final and binding on both parties.
You will fully indemnify us, and hold us (and our directors, officers, employees and contractors) harmless against all cost, loss, damage, cost and expense suffered or incurred by any of us in relation to any breach of clause 6.1, 6.2 or 8 by you.
We warrant that we have all intellectual property rights required to licence the use of the Software to you in accordance with this agreement.
Term and Termination
If you or any of your users are in breach of this agreement at any time, or you go into receivership, liquidation or administration, we may elect to terminate this agreement or suspend your use of the Software and give you written notice of the same. If we elect to suspend, then we may at any time after that also elect to terminate.
Following termination of this agreement for any reason, you must immediately cease using the Software (and any other intellectual property relating to us) in any way.
All subscription based User Licences will automatically terminate at the end of the relevant subscription period as promoted by us (usually 90 days), unless renewed by you along with payment of the relevant Fee in full. All other User Licences are perpetual (once the relevant Fee is paid in full) provided that we will at all times be entitled to terminate or suspend any User Licence in accordance with clause 7.2.
You warrant that, to the extent you supply any “personal information” (as defined in the Privacy Act 1993) to us, you are fully authorised to release that information to us. We will store that personal information and use it for the purposes of supplying the Software and the Support to you, and for informing you of our wider products and services from time to time. You and your users consent to receiving electronic messages from us from time to time in this regard. You and any of your users may at any time request access to their personal information in order to change it or to delete it and prevent any further use of it.
LiabilityWe are not liable to you or any of your users for any loss that is accepted by you under this agreement, or is otherwise excluded from our liability by this agreement, and in particular we are not liable for any indirect or consequential loss which may be suffered by you.
Without limiting clauses 9.1 and 9.2, at no time will our liability to you exceed the greater of the total amount paid by you to us in the 6 month period preceding the date of any claim, or $50 (fifty dollars).
Communications: We may communication with you by email or text message to the electronic addresses inputted by you when you set up your online profile with us. Those communications from us will be deemed to be binding on you.
Amendments: We may amend these terms at any time, by giving you written notice to that effect.
Assignment: We may assign this agreement at any time by giving written notice to this effect to you. You may not assign this agreement or any rights or obligations you have in relation to the Software to any other person at any time without our prior written consent, which consent may be withheld at out absolute discretion.
Entire Agreement: This agreement constitutes the entire agreement between us and supersedes all prior agreements, arrangements, understandings or representations between you and us other than any representations we are not permitted by statute to exclude.
Disputes: You must refer any dispute in the first instance to us at [insert email address]. If the dispute cannot be resolved it will be escalated by us. Any dispute that cannot be resolved between us within 30 days must be referred to mediation in Auckland in English (and each party will bear their own costs and a half share of the mediation specific costs). If the mediator cannot be agreed between us then he or she will be appointed by the President of the Auckland District Law Society. All disputes not resolved by mediation must be referred to Arbitration, by a single arbitrator, in Auckland in English. This clause applies to all disputes and legal proceedings other than urgent interlocutory proceedings or legal proceedings to recover any sum expressly payable under this agreement and which is not genuinely disputed by the debtor party.
Waiver: No failure or delay to exercise our rights under this agreement will amount to a waiver of our rights.
Governing Law: This agreement is governed by New Zealand and the exclusive jurisdiction of the New Zealand Courts.