A. The Licensor has developed and owns the software described below (“Software”).
B. The Licensor has installed the Software into EFTPOS terminals or related equipment (“Terminals”).
C. This document records the terms and conditions upon which any owner or User of Terminals may use the Software.
D. By using the Software, in conjunction with Terminals, Users agree to and are bound by the terms and conditions below.
In this document, the following words will have these meanings:
Commencement Date means the date of first use of the Software by the User.
Deactivate and Deactivation means disengaging the Software, so that it ceases to function for affected Users.
Intellectual Property or IP means all confidential information and other “know-how”, trademarks and patents and all other intellectual property rights (whether registered or not) relating to the Software.
Licence means the software licence granted by the Licensor to use the Software in connection with a Terminal, the terms and conditions for which are recorded in this document.
Monthly Service Fee means the fee to be paid to the Licensor in accordance with clause 5.
Parties means the Licensor and the User, and Party refers to either one of them.
Software means the Licensor’s proprietary software known as “Skyzer Payment Software” together with associated applications agreed to be licensed under this document, consisting of a set of instructions or statements in object code or machine readable medium together with any associated materials and includes software upgrades.
Upgrade means any modification or enhancement to the Software which may be introduced by the Licensor to respond to technological updates and/or to adapt or improve functionality.
User means the person or entity who or which uses the Software in connection with a Terminal.
2.1. The Licence will commence and these terms and conditions will come into effect on the Commencement Date. The Licence will continue until it is earlier terminated in accordance with Clause 9.
3.1. In accordance with this document the Licensor grants to the User a non-exclusive, non-territorial Licence to use the Software in connection with the proper commercial utilisation of a Terminal.
4. Conditions of Licence
4.1. The Licensor may from time to time prescribe conditions for appropriate use of the Software in connection with use of a Terminal. The User has no right to use or exploit the Software other than in connection with normal business use of the Terminal on which it was installed.
4.2. Subject to payment of the Monthly Services Fee the Licensor will from time to time, as it determines appropriate, introduce modifications and/or enhancements to the Software. The Licensor will exercise every reasonable endeavour to ensure that the Software maintains market competitive functionality to enable Terminals to be effective for the purpose for which they were designed.
5. Licence Fee
5.1. The Monthly Service Fee is the charge which is payable to the Licensor to enable it to meet the obligations in clause 4.2. The Monthly Service Fee is normally paid by a dealer or other agent which has acquired a Terminal from the Licensor, for the purpose of leasing or selling it to the User.
6. Intellectual Property Rights
6.1. The User acquires only a right to use the Software for the purpose described in clause 3.1 and does not acquire any right of ownership in it.
6.2. The Licensor will remain the sole owner of copyright and all other IP Rights. The Licensor will also own all IP Rights in all Upgrades.
6.3. The User will not represent to any third party that it holds any right or title to IP Rights, other than as specifically conferred by this document.
7.1. The User will not disclose the details or specifications of the IP in any manner whatsoever to third parties without the express permission from the Licensor.
7.2. The obligations of the User contained in this clause 7 will survive the termination of this Licence.
8. No Warranties and Limitation of Liability
8.1. The User cannot claim for damages resulting from loss of profits, loss of data, loss of use of products or services or related losses,even if it had been advised of the possibility of such loss.
9.1. The Licensor may terminate the Licence if:
9.1.1. The User is wound up, placed in receivership or administration or steps are taken that may lead to such event; or files a voluntary winding up petition or a liquidator is appointed;
9.1.2. The User ceases to use the Terminal on which the Software is installed in accordance with usual or recommended modes of operation, or otherwise uses the Software or the Terminal in a way that compromises their integrity;
9.1.3. The User ceases to have possession or control of the Terminal.
9.1.4. The Monthly Service Fee is on any occasion not paid when due (time being of the essence).
9.2. In the case of sub-clauses 9.1.1 to 9.1.3 inclusive no prior notice is required for termination. In the case of sub-clause 9.1.4 not less than 7 days prior notice is required.
10. Deactivation for Default
10.1. If the preconditions to termination apply the Licensor may as an alternative to termination, but following not less than 7 days prior notice to the User, Deactivate Software in respect of any Terminal. Deactivation, at the Licensor’s discretion, may be temporary (until such conditions cease to exist) or permanent.
11. Effect of Termination
11.1. On the termination of this Licence:
11.1.1. All use rights of the User to use the Software will cease.
11.1.2. The Licensor may at its discretion Deactivate the Software
11.1.3. The Licensor may repossess the Terminal.
12.1. The benefit of the Licence is not capable of being dealt with in any way by the User (whether by assignment, mortgage or otherwise). The Licensor may assign the benefit of this License in the case of a business or asset sale or financing or in connection with a corporate reorganisation.
13. No Waiver
13.1. No right under this document will be deemed waived except by notice in writing to the other Party. A waiver in any instance will not prejudice other rights in respect of any subsequent breach.
14. Governing Law
14.1. These terms and conditions are governed by the laws of New Zealand and any dispute in connection with them will be determined in a Court in New Zealand