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TYMWISE SOFTWARE END USER LICENCE AGREEMENT Terms and Conditions current from June 2010 1. Background: 1.1 The following terms and conditions apply to use of the Tymwise system by you, pursuant to your subscription with Tymwise. 1.2 Tymwise reserves the right to change and update these terms and conditions at any time, effective upon the posting of modified terms on the Tymwise Website. It is your obligation to regularly update yourself as to the most recent terms and conditions available on the Website. 1.3 By proceeding with registration as a user, and / or making any subscription payment to Tymwise and / or any use of the Tymwise system the Client accepts the terms and conditions of this Licence Agreement. 1.4 You must only use the Tymwise software and Website for your own lawful internal business purposes, in accordance with the latest version of these terms and conditions and any notice sent by Tymwise or other terms and conditions posted on the Website. 2. Definitions: (a) "Access Fee" means the monthly fee payable by you for access to the Tymwise system in accordance with the fee schedule set out on the Website (which Tymwise may change from time to time on notice to you). (b) “Client or You” means the licensed end user of the Tymwise system and includes any assignee or successor; director, officer, owner, employee, contractor, agent, or representative of the Client. If the named Client is an individual using the Tymwise software and accessing the Website on behalf of or for the benefit of an organisation (whether a body corporate or not) then it is deemed that the Client has the right to do so and to act on behalf of and bind the organisation and that both the Client and the organisation will be bound by these terms and conditions and liable for any actions or omissions of any member of the organisation. (c) "Client Data" means any data provided by the Client to Tymwise or directly inputted by the Client to the Tymwise system. (d) "Confidential Information" means all information about Tymwise and the Tymwise system; all Client Data and all other information or about or belonging to either party, whether in writing, electronically or orally, that would not otherwise be exchanged between parties or made available to the receiving party but for this licence and that is of a confidential, secret, valuable or commercially sensitive nature. (e) “Initial Fee” means the first month’s Access Fee payable in advance plus the fee payable for initial set up (if any) of the Clients personalized Tymwise software application by Tymwise or by an agent of Tymwise. (f) "Intellectual Property" means the Tymwise current and future intellectual property related to the Tymwise system owned by Tymwise or its superior licensor or associated entities including software, source codes, object codes, algorithms, trade marks, brand names, website design and functionality, data bases, visual image, concepts, designs, copyright materials, methodologies and know-how, all confidential information, domain names and any other intellectual property anywhere in the world in any format, registered or not. g) “Tymwise” means the authorised licensed supplier of the Tymwise system in the Client’s country or region. The current authorised supplier for Australian based Clients is Tymwise L.P; the current authorised supplier for New Zealand and rest of world is Xsede Limited. The supplier entity may change from time to time in which case all of the supplier’s rights, obligations, duties and liabilities under this Agreement will be assigned and novated in full to the new supplier without notice to the Client other than an update of this paragraph (h) "Tymwise system" means the Tymwise software application and functionality together with any customisations, enhancements, upgrades or new releases developed and/or provided by Tymwiseavailable via URL or other means of access provided by Tymwise. (i) "Website" means the Tymwise Internet site at the domain www.tymwise.com or any other site operated by Tymwise. 3. Grant of Licence to use Tymwise System 3.1 In consideration of the fees payable by the Client and subject to the terms and conditions under this licence Tymwise grants the Client the right to access, customise a personal application, and use the Tymwise system for the purposes of the Client’s own business. 3.2 The Clients right to use the Tymwise system is non-exclusive (although no other person will be given access to the Clients personal application or details) and non-transferable and limited by this license. 3.3 Resellers and Agents. If the Client has been introduced to the Tymwise system by a reseller (or other authorised agent) that is independent to Tymwise the Client acknowledges that this licence is solely between Tymwise and the Client and that the Reseller has no right to directly grant any license to the Client and no direct obligation for the supply of the Tymwise system to the Client. The Reseller is not entitled to any payment or other consideration from the Client in relation to the supply of Tymwise system other than for training, business services, or consultation supplied to the Client under a separate agreement direct with the Reseller or agent. 3.4 Term of Licence. The right to use the Tymwise system shall commence on completion of registration by the Client or the date of receipt by Tymwise of the Initial Fee (whichever is later) and shall continue unless cancelled by either party as set out in this licence. 4. Payments: 4.1 An annual subscription invoice for the Access Fee will be issued to you upon subscribing and annually thereafter until this license is terminated in accordance with these terms and conditions. Payment of the Access Fee is due monthly in advance by the 1st of the preceding month. For example, payment for access for the month of February must be made on 1 January, and payment for March must be made on 1 February. 4.2 Upon subscribing you must pay the Initial Fee which consists of the first instalment of the Access Fee (comprising a pro-rated amount for the full remaining month of registration plus the month ahead), together with any applicable business support or set up fee which is due if Tymwise have provided extra services to you upon joining. Any payment due to a Tymwise independent reseller or agent for set up or consultation services will be invoiced by that reseller or agent as detailed in 3.3 above. 4.3 All Tymwise invoices and other payment details or information will be sent to you by email. 4.4 In addition to the monthly Access Fee you will also be invoiced monthly on the 1st of each month for any SMS charges applicable to your business that are sent from Tymwise in the previous month. The SMS charges are due within 10 days from date of invoice. 5. Access and Communication conditions: 5.1 You will ensure that all usernames and passwords required to access the Tymwise software are kept secure and confidential. You will immediately notify Tymwise of any unauthorised use of your user names, passwords or any other breach of security and Tymwise will reset your password. 5.2 As a condition of this license, when accessing and using the Tymwise software, you must not: (a) attempt to undermine the security or integrity of Tymwise computing systems or networks or, where the Tymwise software is hosted by a third party, that third party's computing systems and networks; (b) use, or misuse, the Tymwise software in any way which may impair the functionality of the Tymwise software or Website, or impair the ability of any other user to use the Tymwise software or Website; (c) 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 Tymwise software is hosted; (d) transmit, or input into the Tymwise software, any: files that may damage any other person's computing devices or Tymwise 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 (e) modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Tymwise software or the Website except as is strictly necessary to use either of them for normal operation. 5.3 If you use any communication tools available through the Website (such as any forum, chat room or message centre), you agree only to do so for lawful and legitimate purposes. 5.4 You must not use any communication tool for posting or disseminating any material unrelated to the use of the Tymwise software including (but not limited to): (a) offers of goods or services for sale; (b) files that may damage any other person's computing devices or Tymwise software; (c) 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 you do not have the right to use); (d) any other use or activity that is not consistent with your legitimate and proper use of the Tymwise system or that could cause any harm, loss, damage or offence to Tymwise or any other person. 5.5 By making any communication on or through the Website, you warrant that you own the content of the communication. Tymwise is under no obligation to ensure that the communications on or through the Website comply with these requirements and shall have no liability to any person for your use of the Website or communications not placed by Tymwise. 5.6 As with any other web-based forum, you must exercise caution when using the communication tools available on the Website. 5.7 Tymwise reserves the right to remove any communication at any time in its sole discretion. 6. Intellectual Property, Confidentiality and Privacy 6.1 Intellectual Property: All existing intellectual and other property rights owned by Tymwise at the date of this licence and all improvements by any person shall remain the absolute property of Tymwise. 6.2 All Client Data inputted into the Tymwise system by or on behalf of the Client is and shall remain the absolute property of the Client. 6.3 The Client recognises Tymwise’s title to the Intellectual Property and shall not at any time do or suffer to be done any act or thing which may in any way impair the rights of Tymwise in the Intellectual Property. The Client acknowledges that it shall at no time acquire any title to or interest or other right to use the Intellectual Property or the Tymwise system outside the scope of this licence. 6.4 No changes, improvements or modifications to any part of the Tymwise system may be made without specific consent of Tymwise including development of any new or complementary module or function that uses / is based on the Tymwise system to be effective. Such improvements shall be deemed part of the Tymwise Intellectual Property and owned by Tymwise. 6.5 Confidentiality:Unless the relevant party has the prior written consent of the other or unless required to do so by law: (a) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this license. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this license. (b) Each party's obligations under this clause will survive termination of this license. 6.6 Privacy and Data Security:Tymwise maintains a Privacy and Security Policy that sets out the parties’ rights and obligations in respect of Client Data. That policy is at www.Tymwise.com and is deemed to be part of these terms and conditions and accepted by you accordingly. 6.7 Client Data: The Client must maintain backup copies of all Client Data inputted into the Tymwise system. The Client is solely responsible for maintaining and updating Client Data in the Tymwise system and for checking accuracy and completeness of its Client Data. Tymwise adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime and disaster recovery processes, but does not warrant that the Client Data will not be lost or corrupted and Tymwise is not responsible for any loss of / damage to Client Data. Tymwise expressly excludes liability for any loss of / damage to Client Data no matter how caused. See also the Privacy and Security Policy for further Client Data information and obligations. 6.8 The covenants contained in this Clause shall remain in force and effect after the expiry or termination of this licence and shall not be deemed waived, merged or extinguished upon such expiry or termination. 7. Warranties and Acknowledgements 7.1 Acknowledgements:You acknowledge and accept that: (a) The provision of, access to, and use of, the Tymwise software is on an "as is, where is" basis and at your own risk. (b) It is your sole responsibility to determine that the Tymwise software meets the needs of your business. 7.2 Limited Performance Warranty:Tymwise shall take reasonable care to ensure that the Tymwise system services are of normal commercial quality and shall take all reasonable steps to provide ongoing access to the Tymwise system and protection of the Client Data. In the event of interrupted supply or error in the Tymwise system Tymwise shall take reasonable steps to (but does not guarantee to) repair or restore or re-instate use of the Tymwise system. 7.3 Technical Problems: The Client must take all reasonable steps to investigate and diagnose problems before contacting Tymwise for technical assistance. Support is provided online by Tymwise or by email request at support@Tymwise.com Tymwise will provide reasonable technical support but does not guarantee that it will always be able to provide solutions or fix every problem. Tymwise may reasonably charge for extended, repeated, complex or specialist support. 7.4 Excluded Warranties (a) Tymwise does not warrant that the use of the Tymwise software will be uninterrupted or error free. (b) From time to time access to the Tymwise system or Website may be unavailable due to Tymwise initiated maintenance or other development activity or due to circumstances outside Tymwise’s control such as availability of the systems used for accessing the Tymwise software, including public telephone services, computer networks and the Internet. (c) Tymwise will use reasonable endeavours to publish details of intended or planned activity in advance of interruptions or delays. (d) Tymwise is not in any way responsible for any interference or prevention of your access or use of the Tymwise system or Website. (e) Tymwise does not warrant that the Tymwise system or software will meet your requirements or that it will be suitable for your purposes even if you have explained your intended purposes to Tymwise or any representative or agent of Tymwise. (f) Other than as specifically set out in these terms and conditions, Tymwise gives no warranties or undertakings whatsoever in relation to the Tymwise system and all implied warranties are absolutely excluded to the extent permitted by law. (g) Tymwise is a commercial business application for business users. Application of the Consumer Guarantees Act is excluded and to the maximum extent permitted by law, any other statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction are excluded from the supply of the Tymwise system and software, the website or this license. 8. Limitation of Liability 8.1 Tymwise excludes any liability and responsibility to you (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Client Data, and any consequential loss) or damage resulting, directly or indirectly, from the use of, or reliance on, the Tymwise software. 8.2 If you are not satisfied with the Tymwise system or any decision or action of Tymwise, your sole and exclusive remedy is to terminate this license in accordance with these terms and conditions. 8.3 Notwithstanding the exclusion of liability, should Tymwise or any agent, representative, officer or director thereof be held to have any liability to the Client in any way connected with this licence or the Tymwise system before, during or after the Term and whether by claim or proceedings under any statute, regulation or rule of law by the Client or any third party, the maximum amount that Tymwise shall be liable for (where liability can legally be limited) whether by way of damages, costs, interest, fines or otherwise shall be limited in respect of any one incident, or series of incidents to the Access Fees paid by you in the previous 12 months. 9. Term and Termination 9.1 This license will continue until terminated as set out below or otherwise by law. (a) Either party may terminate this license by giving notice to the other party of at least 30 days, (such period of notice to expire, and termination to take effect on the last day of a calendar month). (b) Breach: If the Client: (i) breaches this license and does not remedy the breach within 7 days after receiving notice of the breach if the breach is capable of being remedied; (ii) fails to make any payment due in full within 30 days of the due date whether or not a demand to pay is given or not; (iii) acts or fails to act in any way that could cause harm or damage to the goodwill, reputation, or operation of the Tymwise system or of Tymwise or breaches or attempts breach any access condition or communication condition as set out above; (iv) goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent or bankrupt, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction; (c) Tymwise may take any or all of the following actions, at its entire discretion: (i) Immediately terminate this license and all access to and use of the Tymwise system and the Website by the named Client or any other member or representative of the Clients organisation; (ii) Suspend for any definite or indefinite period of time, access to and use of the Tymwise system and the Website; (iii) Place conditions or limits on continuing use and access; and/or require a one off or continuing payment or re-imbursement to Tymwise or any other person to cover any costs or loss to any person as a result of or in connection with the Clients use of Tymwise or breach of this licence. 9.2 Termination of this license is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. 9.3 On termination of this licence: (a) The Client will remain liable for any accrued charges and amounts due to Tymwise or to any Tymwise reseller or agent, and all such amounts must be paid in full immediately on termination; and (b) All use of and access to the Client’s personalized application and the Tymwise system and the Website by the Client shall cease; and (c) Provided that the Client has paid all amounts due to Tymwise or any agent or reseller Tymwise will email the Client a full export of the Client’s data in a common file format as selected by Tymwise. (d) If the Client has not provided a valid, current email address or if the Client has not paid all amounts due within 30 days of the date of termination then the Client Data will be permanently deleted from the Tymwise system, and Tymwise shall have no liability or obligation to the Client or any other person in respect of retention or deletion of Client Data. 10. General 10.1 Entire agreement: This license, together with the Tymwise Privacy and Data Security Policy and the terms of any other notices or instructions given to you under this license, constitute the entire agreement between you and Tymwise relating to the Tymwise system and other matters dealt with in this license. 10.2 Indemnity:The Client hereby indemnifies Tymwise against all claims, costs, damage and loss arising from or in any way related to Client use of the Tymwise system or any breach of this license or any other obligation to Tymwise, including (but not limited to) any costs relating to the recovery of any Access Fees or other fees or payments under this licence. 10.3 Waiver:If either party waives any breach of this license, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing. 10.4 Delays:Neither party will be liable for any delay or failure in performance of its obligations under this license 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. 10.5 No Assignment:You may not assign or transfer any rights under this license to any other person without Tymwise's prior written consent. 10.6 Governing law and jurisdiction:you accept that New Zealand law governs this license and you submit to the non-exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this license, without reference to any conflicts of laws. 10.7 Severability:If any part or provision of this license 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 licence will be binding on the parties. 10.8 Notices:Any notice given under this license by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Tymwise must be sent to support@Tymwise.com or to any other email address notified by email to you by Tymwise. Notices and correspondence to you will be sent to the email address which you provided when setting up your access to the Tymwise software unless you provide an updated address. 10.9 Rights of Third Parties:A person who is not a party to this license has no right to benefit under or to enforce any of these terms. |
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