Updated 20 of September, 2017.
THIS AGREEMENT is made on the day detailed in Schedule 1.
BETWEEN WHEREWOLF LIMITED a duly incorporated company under the Companies Act 1993 under company number 425038 having its registered office in 5 Athol Street Queenstown, New Zealand (“Wherewolf”).
AND The person named as the Licensee in Schedule 1 of this Agreement
RECITALS
A) Wherewolf is a software development company based in Queenstown, New Zealand that has developed an application for use on an iPhone or iPad and any other device, including without limitation tablets or other mobile devices, capable of rendering content, displaying or interacting with a web service (“Device”) to facilitate customer with a purpose built app.
B) The Guarantor (if applicable) has requested that Wherewolf grant the Licensee a licence to use the Application.
C) Wherewolf has agreed to permit the Licensee utilise the Application under licence and the Parties wish to record the terms and conditions of this licence in this Agreement (“the Licence”).
NOW IT IS AGREED AS FOLLOWS:
1. Definitions
1.1 In this Agreement unless the context otherwise requires:
a) “Application” means the mobile application built and owned by Wherewolf as detailed in Background paragraph A;
b) “Agreement” means this Agreement of Licence to Use Mobile Application.c) “Device” means an iPhone or iPad and any other device, including without limitation tablets or other mobile devices, capable of rendering content, displaying or interacting with a web service;
c) “Device” means an iPhone or iPad and any other device, including without limitation tablets or other mobile devices, capable of rendering content, displaying or interacting with a web service;
d) “Licence” means the Licensee’s licence to use the Application on the terms contained in this Agreement and the schedule(s) annexed hereto;
e) “Updates” means Wherewolf’s updated, upgraded, improved or modified version of the Application and “Updated” has the same meaning.
f) “Launch Date” means the calendar date Wherewolf provides a link to access or download the app for inspection, testing, and/or review following the initial requirements gathering.
2. Interpretation
2.1 Words referring to the singular include the plural and the reverse.
2.2 References to recitals, clauses, annexures and schedules are to recitals, clauses, annexures and schedules of this agreement.Any reference to any of the parties includes that parties executors, administrators or permitted assigns, or if a company, its successors or permitted assigns or both.
2.3 Any reference to any of the parties includes that parties executors, administrators or permitted assigns, or if a company, its successors or permitted assigns or both.
2.4 Everything expressed or implied in this Agreement which involves more than one person binds and benefits those people jointly and severally.
2.5 Clause headings are for reference purposes only.
2.6 Derivatives of a defined term have a meaning corresponding to that of the defined term. Words importing a particular gender shall include all other genders.
2.7 References to any statute, regulations or other statutory instrument or by-law (“legislation”) shall be deemed to be references to a statute, regulations, instrument or by-law of New Zealand as from time to time amended and includes substitute provisions (whether in an amendment of existing legislation or in new legislation) that substantially correspond to those referred to.
2.8 A reference to a person or persons includes a reference to a body corporate, to a governmental agency and to an unincorporated body of persons.
2.9 Any obligation not to do something shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.
3. Recitals
3.1 The above recitals are true and correct.
4. License to use the Application
4.1 Wherewolf grants and the Licensee accepts a personal, limited, worldwide, non-exclusive, revocable, non-transferrable and non-assignable Licence to download, install and use the Application on the number of Devices detailed in Schedule 1 strictly in accordance with the terms of this Licence.
5. Licence Fees
5.1 Upon this Licence being signed by both Parties the Licensee shall pay Wherewolf a sign-up fee as detailed in Schedule 1 (the “set-up fee”).All prices described in Schedule 1 are exclusive of GST. For the avoidance of doubt, Wherewolf is under no obligation to provide the Application to the Licensee for downloading or installing until the sign-up fee has been paid in full.
5.2 The Licensee shall pay Wherewolf a monthly licence fee as detailed in Schedule 1 (the “Licence Fee”) excluding GST. The Licensee shall pay the first Licence Fee payment in advance on the day the Licensee downloads or installs the Application on the Device (“the Licence Commencement Date”) and the Licensee shall make all subsequent payments of the Licence Fee on each month following the Licence Commencement Date until the Expiry Date.
5.3 Payment of the sign-up fee shall be made by direct credit to Wherewolf’s nominated bank account as detailed in Schedule 1 prior to the Licence Fee Commencement Date.
5.4 The Licensee shall complete a direct debit form for payment of the Licence Fee and supply the duly completed direct debit form to Wherewolf prior to the Licence Commencement Date.
6. Term of Licence
6.1 The term of the Licence commences for 12 months from the Launch Date unless the Licence is terminated in accordance with the terms of this Agreement (“the Expiry Date”). Should any discrepancy arise with payment or otherwise.
6.2 Wherewolf may terminate the Licence at any time by giving the Licensee 30 days’ notice in writing. Wherewolf may, in its discretion choose to withdraw or discontinue the provision, operation and/or support of the Application at any time, and shall have no liability to any users if it chooses to do so.
6.3 The Licensee’s obligations under this Agreement and the Licence continue to the Expiry Date.
6.4 If the Licensee is not in default of its obligations under the Licence of this Agreement, Wherewolf may extend the term of the Licence past the Expiry Date on a monthly basis, subject to the terms of this Agreement and the Licence.
7. Terms of Use of Application and Privacy Policy
7.1 The Licensee agrees to the terms of use of the Application included in Schedule 2 of this Agreement.
7.2 The Licensee shall include in its terms of use by its customers of the Application the terms detailed in Schedule 3 of this Agreement.
7.3 The Licensee shall include in its privacy policy for acknowledgement by its customers using the Application the terms detailed in Schedule 4 of this Agreement.
8. Wherewolf’s Liability
8.1 The Licensee agrees that Wherewolf is not liable to the Licensee for any loss or damage caused arising directly or indirectly in connection with the Licence, the Application, its use or any other application.
8.2 Wherewolf is not liable to the Licensee for any loss or damage arising directly or indirectly in connection with this Agreement, the Licence and the Application and its use, misuse or otherwise including (but without limitation) any loss of profit, business, revenue, goodwill or anticipated savings, or if the
Licensee’s (or the Licensee’s customers’) data is disclosed or accessed without authorisation. This exclusion of liability applies to liability in contract and/or tort (including negligence) or any other principle of legal liability.
8.3 In the event that any limitation or provision contained in this Agreement is invalid for any reason and Wherewolf becomes liable for loss or damage that would otherwise have been excluded, such liability is limited to the amount of NZD$100.00
8.4 Notwithstanding the generality of clause 8.1 above Wherewolf excludes liability for any consequential loss or damage which may arise in respect of the Application, its use or in respect of any other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.
8.5 The Licensee agrees to indemnify and hold harmless Wherewolf and its directors, officers, employees, agents and authorised representatives from and against any costs, losses, liabilities and expenses (including court costs and reasonable legal fees) that Wherewolf may suffer, incur or be subjected to by reason of any legal action, arbitration or other claim by a third party arising out of or as a result of a breach of the Licensee’s representations, warranties and agreements in connection with the Application.
9. Intellectual property rights
9.1 The Licensee acknowledges that any and all of the trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Application are and remain the exclusive property of Wherewolf. The Licensee agrees that it will not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by Wherewolf of any such rights, provided however that Wherewolf acknowledges that Wherewolf displays the Licensee’s branding on the Application and Wherewolf will not dispute the Licensee’s ownership of its own trade names and trade marks.
9.2 In the event that new inventions, designs or processes evolve in the performance of or as a result of this Agreement, the Licensee agrees that such rights are the property of Wherewolf unless otherwise agreed in writing by Wherewolf. The Licensee agrees to transfer (and procure that any person within its control transfers) such rights to Wherewolf upon Wherewolf’s request but at Wherewolf’s expense.
9.3 The Licensee acknowledges that all intellectual property rights relating to the Application are the sole property of Wherewolf and the Licensee agrees to keep such intellectual property rights confidential to the extent that they are not public knowledge.
9.4 The Licensee acknowledges that the Licensee has no right or interest in the Application, including all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights, except as a licensee as expressly set forth in this Agreement.
9.5 The Licensee does not obtain, either under the Licence or by reason of its use of the Application, any right to copy the materials comprising the Application, or any right to use the Application after this Agreement and the Licence have terminated.
9.6 Any modifications or updates to the Application and/or tools for use with the Application directly or for marketing, whether carried out by Wherewolf, the Licensee or any other person, remain the property of Wherewolf even if these modification or updates to the Application are hosted on another sever/system.
10. Confidential Information
10.1 The Licensee agrees:
a) that all information, data, drawings, specifications, documentation, software listings, source or object codes which Wherewolf may have disclosed or given to or may from time to time disclose or give to the Licensee relating to the Application or the Application or both, are proprietary, secret and confidential to Wherewolf; andb) that it will use such materials solely in accordance with the provisions of this Agreement and that it will not at any time during or after the surrender or termination of the Licence, disclose those materials whether directly or indirectly to any third party without
b) that it will use such materials solely in accordance with the provisions of this Agreement and that it will not at any time during or after the surrender or termination of the Licence, disclose those materials whether directly or indirectly to any third party without Wherewolf’s prior written consent.
10.2 The Licensee further agrees with Wherewolf that it will not itself or through any holding, subsidiary or associated company, agent or third party, modify, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the Application or the Application or any part or parts or variations, modifications, copies, releases, versions or Updates of the Application or have any software or other program written or developed for itself based on any Confidential Information supplied to it by Wherewolf.
10.3 The Licensee must keep all information relating to the Application and the Business strictly confidential. Nothing in this clause 10 prevents Wherewolf from exercising any of its rights in respect of the Application that may be permitted or authorised by this Agreement.
11. Assignment
11.1 The Licensee may not sell, transfer, assign, license, franchise, perform on behalf of a third party or otherwise part with possession of, mortgage, charge or encumber any rights or obligations under this Agreement without Wherewolf’s prior written consent (which consent cannot be unreasonably withheld). Wherewolf may require that in the case of assignment or other agreed dealing:
a) the Licensee must pay all fees and expenses (including legal fees on a solicitor/client basis) incurred by Wherewolf in connection with the investigation of the proposed assignee or other third party and otherwise relating to the proposed assignment or dealing; and
b) the proposed assignee or other third party agrees in writing with Wherewolf to observe and perform the terms, conditions and restrictions applying to the Licensee in this Agreement whether express or implied as if the proposed assignee or other third party was an original contracting party to this Agreement.
12. Governing Law
12.1 This Agreement and all rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement shall be governed by New Zealand law. Any suit or proceeding relating to this Agreement shall be brought in the courts located in New Zealand.
13. Arbitration
13.1 Any dispute, difference or claim arising out of or in connection with this Agreement, or the subject matter of this Agreement, will be referred to and finally resolved by arbitration in accordance with the Arbitration Act 1996.
13.2 The arbitration shall be commenced by either Party giving to the other notice in writing stating the subject matter and details of the dispute or difference and that Party’s desire to have the matter referred to arbitration.
13.3 The arbitration shall be by one arbitrator to be agreed upon by the Parties and, failing Agreement, to be nominated by the then President of the New Zealand Law Society.
13.4 The seat of arbitration will be Dunedin in New Zealand and the language of the arbitration will be English.
13.5 The award in the arbitration shall be final and binding on the Parties.
14. Notices
14.1 A notice required to be given in accordance with this Agreement must be served by the Party to the other Party in accordance with the provisions of section 354 to 361 of the Property Law Act 2007 or by email.
14.2 In respect of a notice served by email a notice is deemed to have been served when acknowledged by the receiving Party orally or by return email or otherwise in writing.
15. Applicable Laws
15.1 This Agreement and the Licence shall be governed by New Zealand law and the Licensee submits to the exclusive jurisdiction of the New Zealand courts for any matter or dispute arising in relation to this Agreement.
16. Force Majeure
16.1 Wherewolf shall not have any liability to the Licensee or to third Parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including, without limitation, acts of God or nature, actions of the government, change of law, fires, floods, strikes, civil disturbances or terrorism or electrical power, telecommunications or satellite outages, or network failures.
17. Severability
17.1 If a provision of this Agreement is deemed to be invalid by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
18. Relationship of the Parties
18.1 Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the Parties, or as authorising either Party to act as agent for the other. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the Parties to the Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement.
19. Litigation Expense
19.1 In the event of litigation or arbitration arising out of this Agreement, each Party shall bear its own costs and expenses of litigation or arbitration, including, but not limited to, attorneys’ fees, travel expenses, deposition costs, expert witness expenses and fees, court costs and other costs incurred in connection with bringing or defending such action whether or not incurred in trial or appeal (excluding fees and expenses of arbitrators and administration fees and expenses of arbitration, which shall be shared).
20. Continuation
20.1 Any provision of this Agreement that requires or reasonably contemplates the performance or existence of obligations by either Party after termination or expiration of this Agreement shall survive such termination or expiration.
21 Further Assurances
21.1 Each Party undertakes to do all acts and things and execute all deeds and documents which may be required to be executed to carry out and give effect to the provisions of this Agreement.
22. Non-merger
22.1 The obligations, warranties, undertakings, indemnities and acknowledgements undertaken or given pursuant to this Agreement shall not merge on completion of the transactions contemplated by it but are to remain enforceable to the fullest extent and notwithstanding any rule of law to the contrary.
23. Licensee’s Warranty
23.1 The Licensee warrants that the Licensee has the legal right, authority and full power to enter into this Agreement and to perform the Licensee’s obligations under it and has taken all necessary corporate and other action to authorise this Agreement’s execution, delivery and performance.
24. Counterpart Execution
24.1 This Agreement may be executed:
a) in two or more counterparts, all of which are deemed originals, but which together constitute one Agreement; and
b) by facsimile or scanned email copies signed by the parties, provided that immediately after transmission of the executed Agreement each party will forward to the others the original executed copies for the purpose of forming the counterparts referred to in (a) above.
25. Debt Collection
25.1 If the invoiced amount is not paid in full within the time stipulated on the invoice, we may submit your account for collection. If we do, the company agrees that we may recover the outstanding amount specified in the invoice including interest and other expenses incurred in attempting to recover the debt and any fees and commissions or other amounts we pay to any collection agency to act on our behalf.
