End User License Agreement, Jul 2018
Catch Limited (Catch) licences the party set out in the Order Confirmation (Customer) to access and use certain of its software on the following terms of this End User Licence Agreement (the Agreement).
You must read the terms of this Agreement carefully before indicating acceptance. By checking the box “I Agree to the terms and conditions of the End User Licence Agreement” you will be bound by the terms set out in this Agreement. If you do not agree to the terms of this Agreement, you will not be permitted to use the Software or access the Hosted Software.
Catch has developed certain software, including Enterprise Tester, EA Connector and Screen Architect, which Customers may purchase a licence to use, may subscribe to access as a hosted service or may evaluate for a trial period.
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires or is specified otherwise:
Affiliates means, in relation to any person (“the Subject”), any other person who controls, is controlled by, or is under common control with the Subject. For the purposes of this definition, “control” shall mean the ability, whether direct or indirect, to direct or cause the direction of the management and policies of a person whether through ownership of voting securities, by contract or otherwise.
Authorised Users means:
- (a) Customer; and
- (b) any Affiliates set out in the Order Confirmation who are given permission to use the Software in accordance with clause 3 or clause 4.
Business Day means each day other than a Saturday, Sunday or public holiday in Auckland, New Zealand; Catch Partner means a reseller authorised by Catch to sell licences for the Software and/or sell access to Hosted Software.
Claim means any claims, demands, suits, or proceedings;
Evaluation Software means Software which the Order Confirmation:
- (a) identifies as Evaluation Software; and
- (b) may identify use and/or functionality limitations from a standard version of that same Software;
Documentation means the documentation (if any) made available to Authorised Users by Catch (whether in hardcopy or electronic form) which sets out a description of the Software or Hosted Software and the instructions for use of the Software or Hosted Software; Fees has the meaning set out in clause 10.1;
Hosted Evaluation Software means Hosted Software which the Order Confirmation:
- (a) identifies as Hosted Evaluation Software; and
- (d) may identify use and/or functionality limitations from a standard version of that same Hosted Software;
Hosted Software means those online service products (if any) set out in the Order Confirmation which are to be provided by Catch to Authorised Users under this Agreement;
Initial Term has the meaning set out in clause 4.10;
Intellectual Property means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
Licensee means a Customer that is set out in the Order Confirmation as purchasing a licence to use the Software;
New Version means a version of the Software which is intended to replace the current version of Software which contains new functions or features not previously available.
Normal Business Hours means the business hours as set out on this website New Zealand Time provided that it will not be any less than 8:00am to 5:00pm on each Business Day;
Order Confirmation means that document or online confirmation or email confirmation which refers to these terms and sets out the Software, Evaluation Software and or Hosted Software or Hosted Evaluation Software to be provided by Catch or the Catch Partner to Customer;
Software means the Catch software (if any) set out in the Order Confirmation, any Updates provided to Customer and any related Documentation;
Subscriber means a Customer that is set out in the Order Confirmation as subscribing for Hosted Software;
Subscriber Data means the data input by Authorised Users or Catch on Authorised Users’ behalf for the purpose of using the Hosted Software or facilitating the Authorised Users’ use of the Hosted Software;
Support Services means the support services that Catch will provide to Customer as set out in clause 6;
Trial Licensee means a Customer that is set out in the Order Confirmation as downloading and installing a limited licence to use the Evaluation Software;
Trial Period means a period set out in the Order Confirmation from the date the Evaluation Software is first installed by the Trial Licensee or the Hosted Evaluation Software is first accessed by the Trial Subscriber;
Trial Subscriber means a Customer that is set out in the Order Confirmation for a limited licence to access and use the Hosted Evaluation Software;
Trial User has the meaning given to it in clause 2.3;
Update means a widely released fix for a specific problem or which addresses a non-critical, non-security related bug for the version of the Software or Hosted Software the Customer is licenced to use or has subscribed to access under this Agreement;
Usage Limit means those limits in the manner in which the Authorised Users may use the Software and, or access the Hosted Software as set out in the Order Confirmation (including, without limitation, any restrictions on the number of Authorised Users, the amount of Subscriber Data storage);
Virus means any software, code, file, program or other device which is designed to:
(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; Wilful Breach means any act or omission which is a material breach of this Agreement and is wilfully committed with the knowledge that such act or omission is a breach of this Agreement.
2. Trial User
2.1 If Customer is a Trial Licensee then those matters set out in this clause 2 and the matters set out in clauses 3, 5 – 15 shall apply excluding:
(a) clause 3.5 – 3.6;
(b) clause 10; and
(c) clause 13.
2.2 If Customer is a Trial Subscriber then those matters set out in this clause 2 and the matters set out in clauses 4, 5 – 15 shall apply excluding:
(a) clause 4.5;
(b) clauses 4.9 – 4.14;
(c) clause 4.16;
(d) clause 10; and
(e) clause 13.
2.3 This Agreement will terminate immediately upon such time that:
(a) the Trial Period expires, where the Customer is a Trial Licensee and/or Trial Subscriber (together Trial User), Customer purchases a licence for the same Software covered by the trial or subscribes for access to use the same Hosted Software covered by the trial at Catch’s then current rate on Catch’s then current terms.
2.4 Catch may terminate this Agreement:
2.5 if the Trial User:
(a) breaches any of its obligations under this Agreement and does not remedy the breach within 7 days after notice from Catch;
(b) become insolvent, go into liquidation, have a receiver appointed or make any arrangement with its creditors.
2.6 Either party may terminate this Agreement at any time without cause on 14 days prior written notice.
2.7 On termination of this Agreement:
(a) Trial User must immediately cease using the Evaluation Software or Hosted Evaluation Software and destroy all copies of the Evaluation Software in the Trial Users possession and remove all copies of the Evaluation Software from its system;
(b) each party will return all of the other party’s Confidential Information (or in the case of Catch any Confidential Information of any Authorised User) in its possession or control, or destroy all such Confidential Information and certify in writing it has done so.
2.8 Termination of this Agreement will not affect the accrued rights or liabilities of either party, nor will it affect any provision which is expressly or by implication intended to come into force or continue in force on or after termination.
2.9 Customer acknowledges that:
(a) Evaluation Software or Hosted Evaluation Software is only being provided for Trial Period;
(b) Evaluation Software and Hosted Evaluation Software should be used solely for internal evaluation purposes and not for productive business use,
(c) Evaluation Software and Hosted Evaluation Software should not be used with live data that it wishes to continue to access after the Trial Period; and
(d) Catch is not liable for any loss, cost liability or damage if data used in conjunction with or produced using the Evaluation Software or Evaluation Hosted Software is unavailable during or after the Trial Period.
3. Licence of Software
3.1 If Customer is a Licensee then those matters set out in this clause 3 and the matters set out in clauses 4 – 15 shall apply.
3.2 Catch grants Licensee a non-exclusive, non-transferable license during the continuance of this Agreement subject to any Usage Limits to:
(a) download, install and use the Software for its internal business purposes and the internal business purposes of any of its Authorised Users; and
(b) allow third party contractors of its Authorised Users to use the Software to the extent necessary to enable Authorised Users to exploit the rights granted to them under clause (a) above.
3.3 Licensee acknowledges and agrees, and Licensee will procure that other Authorised Users acknowledge and agree that Catch may collect and use data for the purpose of:
(a) tracking the progress of installation on the Licensee’s computer system;
(b) tracking the Updates installed by the Licensee;
(c) improving or enhancing the Software; and
(d) performing data analysis on an aggregated and anonymous basis.
3.4 Catch warrants that:
(a) to the best of its knowledge the Software does not infringe the Intellectual Property of any third party;
(b) the Software will function substantially in accordance with the Documentation but may have minor or inherent defects. If Software does not function substantially in accordance with the Documentation, Customers sole and exclusive remedy will be for Catch to repair or replace the Software to correct documented code errors caused by a defect in the Software.
3.5 Catch shall not be liable for a failure to meet a warranty set out in clause 3.4 to the extent that the failure arises as a result of:
(a) Authorised Users (or any third party contractor of Authorised Users) using the Software in a manner other than set out in the Documentation; and
(b) any failure by Authorised User to procure that it has systems available and services are provided to Authorised User by third parties in the manner set out in the Documentation.
3.6 To the extent a Claim arises out of the Customer’s use of the Software in conjunction with any other software or equipment, Catch will not be liable except to the extent that the Claim would arise if the Software was used without the use of other software or equipment.
3.7 Catch will defend, indemnify and hold Authorised User harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with Claims made or brought against Authorised User (or any third party contractor of Authorised User) by an unrelated third party alleging that the use of the Software by the Authorised Users in the manner contemplated in this Agreement infringes any copyright of a third party.
3.8 Customer will defend, indemnify and hold Catch harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with Claims made or brought against Catch by an unrelated third party alleging that the use of the Software by the Authorised User (or any third party contractor of Authorised User) other than in the manner contemplated in this Agreement infringes any third party rights.
3.9 Catch, where it is granted the consent, and continued consent, from Licensee or relevant Authorised User, may collect and use any email address or other address for electronic communications provided for the purpose of:
(a) sending information concerning features and functionality of the Software;
(b) sending various opportunities, events and offers available from Catch;
(c) promoting and marketing current and future products and services available from Catch; and
(d) conducting research (including but not limited to feedback surveys) concerning any future Catch products.
3.10 Where the relevant Licensee or Authorised User revokes its consent, then Catch will no longer send email communications and other electronic messages as described in clause 3.9.
4. Hosted Software
4.1 If Customer is a Subscriber then those matters set out in this clause 4 and clauses 5 -15 shall apply.
Right of Access
4.2 Catch grants Subscriber a non-exclusive, non-transferable licence during the continuance of this Agreement subject to any Usage Limits to:
(a) access and use the Hosted Software; and
(b) allow Authorised Users to access and use the Hosted Software;
(c) allow third party contractors of Subscriber and/or other Authorised Users to access and use the Hosted Software; for the internal business purposes of Subscriber and other Authorised Users.
4.3 Subscriber acknowledges that Catch regularly upgrades and updates the Hosted Software and that the Hosted Software is continually evolving. Some of these changes will occur automatically, while others may require the Subscriber to schedule and implement the changes. Subscriber will, where required, upgrade its software and/or equipment and procure other Authorised User upgrade in order to make efficient use of the Hosted Software. Catch will provide Subscriber with reasonable notice of any such changes.
4.4 The parties acknowledge and agree that Subscriber and the other Authorised Users will own all rights, title and interest in and to all of the Subscriber Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.
4.5 Each party will take appropriate technical and organisational measures against unauthorised or unlawful processing of the Subscriber Data or its accidental loss, destruction or damage and Catch will, as part of these measures, use reasonable endeavours to back-up Subscriber Data at least once every 24 hours. Subscriber acknowledges that if there is any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy will be for Catch to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by Catch. Catch will not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
4.6 Catch, where it is granted the consent, and continued consent, from Subscriber or relevant Authorised User, may collect and use any email address or other address for electronic communications provided for the purpose of:
(a) sending information concerning features and functionality of the Software;
(b) sending various opportunities, events and offers available from Catch;
(c) conducting research (including but not limited to feedback surveys) concerning any future Catch products.
4.7 Where the relevant Subscriber or Authorised User revokes its consent, then Catch will no longer send email communications and other electronic messages as described in clause 4.6.
4.8 Subscriber acknowledges and agrees, and Subscriber will procure that other Authorised Users acknowledge and agree:
(a) that Catch may use the Subscriber Data for the purpose of:
(i) performing Catch’s obligations under this Agreement;
(ii) ensuring that the Authorised Users are complying with the terms and conditions of this Agreement;
(iii) improving or enhancing the Hosted Software;
(iv) performing data analysis on an aggregated and anonymous basis, provided that Catch complies with its confidentiality obligations under clause 8.
(b) that they will not introduce and use all reasonable endeavours to ensure that they do introduce into Catch’s systems a Virus;
(c) they will not do anything that is likely to harm the Hosted Software or otherwise interfere with the ability for any other customer of Catch to receive and use the services that it has subscribed for from Catch; or
(d) that they will provide Catch with all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be required by Catch, so that Catch can provide the Hosted Software;
(e) that they will comply with all applicable laws and regulations with respect to their activities under this Agreement;
(f) that they will carry out all other Subscriber responsibilities set out in this Agreement in a timely and efficient manner;
(g) that they will be responsible for all acts and omissions of third party contractors that access and use the Hosted Software pursuant to this Agreement as if those acts and omissions are those of the Subscriber or other Authorised User. Customer will indemnify Catch against all costs, losses, damages and expenses arising out of or in connection with such third party contractors’ use of the Hosted Software;
(h) Catch may treat the acts of anybody logging on using Customers or other Authorised Users log in details as an act of Customer or relevant other Authorised User.
(i) that they will ensure that their network and systems comply with the relevant specifications as may be specified by Catch from time to time; and
(j) they will be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Catch’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
New Version of Software
4.9 Where Catch develops a New Version of the Software and that version is widely released Catch will advise Subscriber of that New Version and the terms on which it is available.
4.10 This Agreement will, unless terminated earlier pursuant to this Agreement, commence on the date set in the Order Confirmation and continue for the term set out in the Order Confirmation (Initial Term). This Agreement will renew for a further period of the same duration as the Initial Period unless either party gives the other notice that it will not renew. Any such notice of non-renewal must be given not less than the Requisite Notice Duration prior to the expiry of the then current term. The Requisite Notice Duration shall be a period equivalent to 10% of the number of working days in the Initial Period provided that if this results in a fraction of a day it shall be rounded to the next whole day (Requisite Notice Duration).
Change of Terms
4.11 Catch may notify Subscriber at any time of any changes that it proposes to the terms of this Agreement. Subscriber will be deemed to have agreed to those terms notified by Catch and this Agreement will be modified to reflect those changes at the time that this Agreement is renewed.
4.12 Catch warrants that:
(a) To the best of its knowledge the use of the Hosted Service in the manner set out in the Documentation does not infringe the Intellectual Property of any third party;
(b) Hosted Software will be provided substantially in accordance with the Documentation;
(c) it will use all reasonable endeavours to protect and prevent any unauthorised access to, or use of the Hosted Software and Subscriber Data; and
(d) Hosted Software will be provided with reasonable skill and care.
4.13 Catch shall not be liable for any failure to meet a warranty set out in clause 4.12 to the extent that the failure arises as a result of:
(a) Authorised Users (or any third party contractor of the Authorised Users) using the Hosted Software in a manner other than as set out in the Documentation; and
(b) any failure by Authorised Users to procure that it has systems available and services are provided by third parties in the manner set out in the Documentation.
4.14 If the Hosted Software does not function substantially in accordance with the Documentation, Catch will, at its option, either:
(a) modify the Hosted Software to conform to the Documentation; or
(b) provide a workaround solution that will reasonably meet Authorised User’s requirements. If neither of the options in paragraphs (a) or (b) is commercially feasible, then either party may terminate this Agreement by giving written notice to the other party and such termination will be treated as if it were a termination by the Customer in accordance with clause 13.1. This clause sets out the entire liability of Catch where the Hosted Service does not function substantially in accordance with the Documentation.
4.15 To the extent a Claim arises out of the Customer’s use of the Hosted Software in conjunction with any other software or equipment, Catch will not be liable except to the extent that the Claim would arise if the Hosted Software was used without the use of other software or equipment.
4.16 Catch will defend, indemnify and hold Authorised Users harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with Claims made or brought against Authorised Users (or any third party contractor of Authorised User) by an unrelated third party alleging that the use of the Hosted Service by the Authorised Users in the manner contemplated in this Agreement infringes any copyright of a third party.
4.17 Customer will defend, indemnify and hold Catch harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with Claims made or brought against Catch other than by an unrelated third party alleging that the use of the Hosted Service by the Authorised User (or any third party contractor of Authorised Users as contemplated in this Agreement infringes any third party rights.
5. Use Restrictions
5.1 Customer will and will procure other Authorised Users will:
(a) ensure that only the Authorised Users (and any third party contractor of Authorised User) access and use the Software or Hosted Service;
(b) permit Catch, by giving at least 72 hours’ prior notice, to validate the Authorised User’s use of the Software and Hosted Service to establish whether the Software or Hosted Service is being used in accordance with this Agreement
(c) where the Customer is a Subscriber promptly disable any login account if Catch discovers (through undertaking the validation referred to in clause 5.1(b) that any login details have been provided to any party that is not an Authorised User; and
(d) on demand pay to Catch an amount of any underpayment of Fees discovered by Catch though undertaking the validation referred to in clause 5.1(b).
5.2 The Customer will not, and will procure other Authorised Users will not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Software or Hosted Service in order to build a product or service which competes with the Software or Hosted Service and/or the Documentation;
(c) attempt to obtain, or assist third parties in obtaining, access to the Software or Hosted Service other than as provided under this Agreement.
5.3 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software or Hosted Service and, in the event of any such unauthorised access or use, promptly notify Catch.
6. Support Services
6.1 Subject to clause 10.4, Catch will remotely provide the following services (Support Services) to Customer:
(a) during Normal Business Hours a help desk that the Customer Contact may email:
(i) to report any errors or faults that may be experienced in the Software or Hosted Software; and
(ii) to receive assistance in relation to any login issues;
(b) provision of access to any Updates;
6.2 Catch will ensure that suitable qualified personnel are used in the provision of the Support Services and will use reasonable endeavours to provide Support Services promptly.
7.1 Catch may sub-contract any of its obligations under this Agreement without obtaining Customer’s prior written consent.
7.2 If Catch uses a sub-contractor, Catch is not relieved of any of its liabilities or obligations under this Agreement.
8. Intellectual Property
8.1 All Intellectual Property (including all rights, title and interest) in the Software and any, New Versions or Updates belong to Catch and Customer must not dispute such ownership.
8.2 Customer must maintain all copyright notices on the Software and documentation relating to the Software.
8.3 Without prejudice to clause 5.2, if notwithstanding clause 5.2 Customer makes and except as set out in clause
8.4 any modifications made to the Software or Hosted Service will be owned by the party making that modification.
8.4 Where any modification is made to the Software of Hosted Service by either party and that modification is unable to be used independently of the Software of Hosted Service then that modification will be owned by Catch.
9.1 Each party will treat as confidential all confidential information obtained from the other (or in the case Catch obtained from Authorised Users) pursuant to this Agreement. Neither party will divulge such information to any persons (except to their employees (for whom that party will be responsible) and then only to those employees who need to know) without the other party’s prior written consent.
9.2 In relation to either party, confidential information means any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object codes, source codes, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets (Confidential Information).
9.3 Clauses 9.1 and 9.2 do not extend to information which:
(a) can be established by written records to be already known to the recipient at the time of disclosure; or
(b) which is in or enters the public domain through no fault of the recipient.
9.4 If the recipient of any confidential information is required by any applicable law, court or authority to disclose such confidential information to any person, it will:
(a) give the disclosing party prompt written notice of the disclosure, where practicable before it occurs, so that the disclosing party has sufficient opportunity to prevent the disclosure through appropriate legal means;
(b) disclose only that part of the confidential information which the recipient’s legal advisers consider is legally required to be disclosed; and
(c) use all reasonable endeavours to obtain an assurance that the confidential information disclosed will be treated confidentially by the recipient.
9.5 Each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all confidential information and any other document supplied by or obtained from the other party.
9.6 Customer will procure that other Authorised Users and any third party contractors of Customer or other Authorised Users comply with this obligation in relation to Confidential Information of Catch.
9.7 This clause 9 will survive termination of this Agreement.
10. Fees and Payment
10.1 Customer will pay the fees and all disbursements and any other agreed charges under this Agreement plus GST (if any) to Catch or where applicable the Catch Partner in accordance with the payment details set out in the Order Confirmation (the Fees).
10.2 If Customer defaults in any payment of the Fees, Catch may (without prejudice to its other rights):
(a) charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by Catch’s bankers from time to time; and/or
(b) withhold the provision of any of the Hosted Software until all amounts due by Customer under this Agreement have been paid in full.
10.3 If Usage Limits are included within the Order Confirmation then for the continuance of this Agreement, the Fees include a right to use Software or access Hosted Software up to that Usage Limit, to the extent that Authorised Users exceeds the Usage Limit Catch will charge an additional fee for use in excess of the Usage Limit at Catch’s then current rate for the relevant restriction.
10.4 If Customer is a Licensee:
(a) Fees paid for the licence to use the Software include use of the Support Services for the first 12 months from the date of purchase after which Support Services will discontinue unless Licensee agrees to this Agreement, after which Licensee pays Catch’s then current rate for Support Services and agrees to any changes to Catch’s standard terms for supply of Support Services;
(b) and Customer discontinues Support Services, Customer acknowledges, should it wish to commence receiving the Support Services again this will be dependent on Catch in its sole discretion agreeing to allow the Licensee to receive the Support Services which agreement may be subject to (among other things) Customer paying an additional fee to have its software brought up to the then current version and agreeing to Catch’s then current terms of support.
10.5 If Customer is a Subscriber, Fees include use of the Support Services for the continuance of this Agreement.
10.6 If Customer is required by law to deduct or withhold taxes or charges from the amounts due to Catch under this Agreement, Customer will ensure that the amount due to Catch is increased so that the payment actually made to Catch equals the amount due to Catch as if no such taxes or charges had been imposed.
11. Warranties and Liability
11.1 Where a party is indemnified under this Agreement in relation to a Claim (Indemnified Party) that party will:
(a) give the other party (Indemnifying Party) prompt written notice of the Claim;
(b) the Indemnified Party will provide reasonable co-operation to the Indemnifying Party in the defence and settlement of such Claim, at the Indemnifying Party’s expense;
(c) give the Indemnifying Party sole authority to defend or settle any Claim
11.2 In the defence or settlement of any Claim by Catch, Catch may procure the right for the Customer to continue using the Software or Hosted Service, replace the Software or modify the Software or Hosted Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on five Business Day’s notice to the Customer with such termination treated as if it were a termination by Customer under clause 13.1.
11.3 Except as expressly set out in this Agreement, to the maximum extent permitted by law, all other representations, conditions or warranties, except any that may not lawfully be excluded, are excluded, including any implied warranties of merchantability and fitness for purpose in respect of the Software and the Hosted Software are expressly excluded.
11.4 The Customer acknowledges that, where it has purchased the Software or access to the Hosted Software from a Catch Partner, Catch will not be liable for any representations, conditions or warranties made by the Catch Partner, which are inconsistent with or in excess of those set out in this Agreement unless those representation, conditions or warranties have been expressly confirmed by Catch or they are such that may not lawfully be excluded.
11.5 Notwithstanding anything to the contrary in this Agreement except for a Wilful Breach by a party, non-payment of Fees by Customer, a breach of clause 9, a breach of the other party’s Intellectual Property, or a breach of clause in no circumstances will either party be liable to the other under or in relation to this Agreement (whether in contract, tort or otherwise):
(a) for any special, incidental, indirect or consequential loss or damage for any loss of goodwill or loss of profits;
(b) whether in relation to one or more Claims in any 6 month period for an amount in excess of that amount paid by the Customer to Catch in that same 6 month period under this Agreement;
11.6 Customer may bring a Claim on behalf of an Authorised User as if any loss, cost, liability or expense suffered by Authorised User had been suffered by the Customer. All such claims will be treated as claims by Customer and be subject to the limitations and exclusions in clause 11.5.
11.7 Customer will procure Authorised Users do not bring any Claim under or in relation to this Agreement (whether in contract, tort or otherwise) against Catch. Customer will indemnify Catch against any loss, cost liability or damage Catch has suffered as a result of failing to do this.
11.8 Nothing in this Agreement will prevent Catch, at any time, from ceasing to make available any functionality of the Software or Hosted Service or any other software or internet based service not included in the Documentation for the Software or Hosted Service.
12. Force Majeure
12.1 Neither party will have any liability to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport or telecommunications network or service of a, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
13. Default and termination
13.1 Either party (Terminating Party) may terminate this Agreement if the other party:
(a) breaches any of its obligations under this Agreement and does not remedy the breach within 14 days after notice from the Terminating Party; or
(b) becomes insolvent, go into liquidation, have a receiver appointed or make any arrangement with its creditors.
13.2 The Customer may terminate this Agreement at any time on 30 days’ written notice, without cause. The Customer will not be entitled to any rebate of fees.
13.3 On termination of this Agreement:
(a) Customer must immediately cease using the Software and/or Hosted Software and destroy all copies of the Software in the Customer’s possession and remove all copies of the Software from its systems;
(b) Customer will remain liable for any Fees or other charges payable to Catch that become due for payment before on or as result of termination where:
(i) Catch has terminated this Agreement pursuant to clause 13.1; or
(ii) Customer has terminated pursuant to clause 13.2;
(c) Catch will remain liable for any Fees or other charges paid in advance to Catch by the Customer where Customer has terminated the Agreement in accordance with clause 12.1 as a result of a breach of this Agreement by Catch;
(d) each party will return all of the other party’s Confidential Information (or in the case of Catch any Confidential Information of any Authorised User) in its possession or control, or destroy all such Confidential Information and certify in writing that it has done so;
(e) if Customer is a Subscriber and within 30 days of termination or expiration of this Agreement the Subscriber has notified Catch that it requires the Subscriber Data be made available to it Catch will use all reasonable endeavours to make available that Subscriber Data for download. Where this Agreement expires or is terminated by Catch under clause 13.1 or by Customer under clause 13.2 Catch, in its sole discretion may charge the Subscriber a fee at the then current market rate for any time it incurs in making that Subscriber Data available. Where Catch does not receive notice from the Subscriber within 30 days of termination or expiration of this Agreement, Catch may delete the Subscriber Data.
13.4 Termination of this Agreement will not affect the accrued rights or liabilities of either party, nor will it affect any provision which is expressly or by implication intended to come into force or continue in force on or after termination.
14.1 If a dispute arises out of or relates to this Agreement (the Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
14.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
14.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
14.4 If the Dispute is not resolved within 15 Working Days of the notice being given pursuant to clause 14.2 (or within such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by either:
(a) the arbitration of a single arbitrator, appointed by the parties or, failing agreement within 5 Working Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996; or
(b) where both parties agree, under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules, with any hearings to be held as soon as possible at the New Zealand International Dispute Resolution Centre (NZIDRC); and the arbitrator’s decision will be binding on the parties.
15. Privacy Statement
15.1 Catch may collect personal information, including the name and email address of any Authorised User for the purposes of fulfilling its obligations under this Agreement and otherwise for the purposes described in this Agreement.
15.2 Catch will not disclose any personal information to any third party, except:
(a) for the purposes of providing the Software or performing any of the obligations of Catch under this Agreement;
(b) as authorised by the relevant Authorised User; or
(c) as required or permitted under any applicable law, regulation, legal process or government request.
15.3 Any personal information provided will be held by Catch in accordance with any applicable privacy laws. To access the information held by Catch an Authorised User may contact Catch on or +64.9.303.2023. The relevant Authorised User may request a correction or an update to the information held by Catch, and Catch will either correct the information or note the correction requested.
16.1 The Software and/or Hosted Service may be subject to the export control laws of various countries, including without limitation the laws of New Zealand and the United States. Customer agrees that it will not submit the Software or provide access to the Hosted Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of Catch, and will not export the Software or provide access to the Hosted Service to residents in countries or to persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Software or Hosted Service by Customer and any third party contractors of the Customer.
16.2 Where Catch provides the Software and Hosted Service for US federal government end use it does so solely in accordance with the following: Government technical data and software rights related to the Hosted Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with US Federal Acquisitions Regulations Systems – FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defence transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation). If a US government agency has a “need for” right not conveyed under these terms, it must negotiate with Catch to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein.
16.3 Catch may identify the Customer as a user of the Software or Hosted Software in promotional and marketing materials. The Customer may request that Catch cease identifying the Customer in its promotional and marketing materials at any time by submitting an email to (Discontinuance Request). Customer acknowledges that it may take Catch 30 days from the date that Catch receives a Discontinuance Request to cease any such identification.
16.4 If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any other agreement between Catch and the Customer, this Agreement will prevail.
16.5 If any provision of this Agreement is illegal, void or unenforceable, then it will be excluded so that the remaining provisions of the terms and conditions will continue in force and effect.
16.6 Any notice to be given under the terms of this Agreement must be made in writing, by email or fax sent to the principal place of business of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by email or fax will be deemed to be received when transmitted to the correct email or fax address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third day following the date of posting.
16.7 No waiver of any breach of these Terms will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of these Terms will not be interpreted as a waiver of the provision.
16.8 This Agreement, Documentation and the Order Confirmation constitutes the entire agreement and understanding between the parties and supersedes all prior oral and written understanding, arrangements or agreements relating to the subject matter of this Agreement.
16.9 Except as expressly set out in this Agreement Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Catch.
16.10 These Terms are governed by and to be construed according to the laws applicable to New Zealand. The provisions of the Terms may not satisfy the laws of any other country. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.