1.1 - This agreement is a contract between you (you) and ShipIT Limited (together with its related group entities) (Licensor) for access to and use of the cloud-based shipping and tracking integration software known as ShipIT, together with any associated documentation including "online" or electronic materials which is designed to assist or supplement the understanding or application of the software (Software).
1.2 - We provide Software in connection with shipping and tracking services, website(s) and related services (Services).
1.3 - This agreement governs your access to and use of the Software and our Services. By installing, accessing or otherwise using the Software and our Services you agree to be bound by the terms of this agreement. If you do not agree to all of the terms of this agreement, do not install, access or otherwise use the Software and our Services.If you install, access or otherwise use the Softwareand our Services the terms and conditions of this agreement are deemed to have been fully accepted by you.
1.4 - This agreement shall be in effect from the time you install or first access the Softwareand our Services and shall remain in effect on an ongoing basis until such time as the agreement is terminated by either party in accordance with the terms of this agreement.
1.5 - The Licensor may change the terms of this agreement at any time upon written notice (which may be given by uploading such updated terms onto the Licensor's website at www.starshipit.com. It is your responsibility to check for updates and your continued access to and use of the Software, our websites or related services will be deemed acceptance of the updated or amended terms.
2.1 - Subject to the terms and conditions of this agreement (including payment of the applicable fee), the Licensor grants to you a non-exclusive and non-transferable licence to access and use the Software in accordance with the terms of this agreement (Licence).
2.2 - You may need certain equipment and other computer software, which will be notified to you by the Licensor from time to time, to successfully access and/or use the Software (minimum operating specifications).You are responsible for ensuring your system meets the minimum operating specifications and you acknowledge that if you fail to do so, the Software may not operate correctly. However, meeting the minimum operating specifications does not guarantee that all features of the Software will perform to your requirements.
2.3 - You are responsible for keeping your codes and/or other log-in information relating to the Software secure. Without limiting the foregoing, you agree to immediately inform the Licensor of any known or suspected unauthorised access or use of the Software.
3.1 - You are entitled to all updates to and error corrections of the Software we make available. All such updates and error corrections will be deemed part of the Software and this agreement covers their use.
3.2 - If you wish to licence any upgraded version of the Software we make available, such upgrade will be provided by the Licensor (on request) at the fee specified on the Licensor's website or (if no such fee is specified) at the fee otherwise notified by the Licensor.
4.1 - Training shall be provided by the Licensor (or its representative) in the manner and at the times that the Licensor (in its sole discretion) considers appropriate. If we require additional payment for training you request, we will notify you of that before we provide your requested training.
4.2 - Technical support will be provided by the Licensor in the manner that the Licensor (in its sole discretion) considers appropriate.Technical support services are included in your Licence fees.
4.3 - If the Licensor requests remote access to your systems to perform technical support services (or any updates or error corrections), you must ensure that such remote access is provided to the Licensor at reasonable times requested by the Licensor.
4.4 - The Licensor will have no liability to provide technical support services for an unsupported version of the Software. An unsupported version is one advised to you by at least 3 months' prior notice (which may be given by publication on the Licensor's website).
4.5 - The Licensor may use sub-contractors to perform its technical support services.
4.6 - In consideration of the mutual promises and obligations set out in this agreement, you agree topay to the Licensor the annual or monthly subscription fee set out on the Licensor's website or as otherwise notified to youno later than 30 days from (i) the date on which you first access the Software or (ii) your free trial period ends.Where we permit you to add user accounts under your account, you are also responsible for paying the fees associated with those user accounts (if any)in accordance with this clause.
4.7 - Fees are non-refundable and non-cancelable.
4.8 - The Licensor may vary the applicable subscription fee upon one month's written notice to you(which may be given by publishing the varied subscription fee on the Licensor's website).The updated subscription fees will apply from your next applicable payment.
4.9 - All fees and charges are payable by credit card, automatic bank payment, electronic funds transfer, direct debit authority or otherwise as required by the Licensor. All payments must be made without set-off or deduction, and you are responsible for paying to the Licensor all goods and services/value-added taxes, duties, custom charges, and other taxes (to the extent applicable) in addition to our fees. If we are required to pay any taxes (including withholding taxes), customs charges, duties, or other fees as a result of your use of the Software, you will pay us for that in addition to our fees.
4.10 - Where this agreement refers to the Licensor's standard or current rates or fees, these will be the rates or fees made known to you by notice (which may be given by publishing such rates or fees on the Licensor's website). The Licensor may vary its standard or current rates upon written notice to you (which may be given by publishing such varied rates on the Licensor's website).
4.11 - If you do not make full payment of any invoiced sum on its due date, the Licensor may:
4.11.1 - charge interest on the outstanding amount at its current bank overdraft rate plus 4% or the maximum rate under applicable law from the due date until the date of actual payment; and/or
4.11.2 - withhold any further Services (including training and/or technical support) until full payment is made; and/or
4. 11.3 - temporarily or permanently deactivate your access to the Software and terminate this agreement, if full payment has not been made within 5 business days of notice that the Licensor intends to exercise this deactivation right.
5.1 - The Licensor warrants that it has the necessary intellectual property rights in the Software to grant you the Licence.
5.2 - The Software is protected by copyright and other interests and they are proprietary and confidential to the Licensor (and/or its third party licensors). All rights, title and interest in and to any proprietary rights in the Software are and will remain vested in the Licensor or its third party licensors (as applicable). These rights are protected by law and international treaties.
5.3 - All intellectual property rights (including common law rights and interests) created or developed during this Agreement in relation to the Software or our Services (or both) shall vest exclusively to us. To the extent that any intellectual property rights (including common law rights and interests) relating to the Software or our Services would automatically vest to you under applicable laws, you agree to do all acts and sign all documents required by us to assign to the Licensor without reservation all such intellectual property rights, and you agree to co-operate with the Licensor and do everything necessary to allow the Licensor to fully protect, realise and use such intellectual property rights for any purpose whatsoever.
5.4 - Except as expressly specified in this agreement, nothing in this agreement confers on you any right or interest in, or licence or permit to use, any of the intellectual property rights in the Software or any other intellectual property rights owned by or proprietary to the Licensor or any of its third party licensors.
5.5 - You shall not cause or permit anything to be done which may damage or endanger the rights of the Licensor in and to the Software and shall not allow any other person to do so.
5.6 - You shall not use the Software in connection with other software or data if doing so would breach the intellectual property rights of a third party.
5.7 - You acknowledge that no obligation, warranty, undertaking or promise of the Licensor in this agreement (if any) shall apply in respect of any third party software used in connection with (or incorporated into) the Software.
5.8 - If the Software is found to be in breach of a third party's intellectual property rights, the Licensor may elect as your only remedy to do one or more of the following:
5.8.1 - modify or replace the Software so that there is no breach;
5.8.2 - procure for you the right to use the third party's intellectual property; or
5.8.3 - recall the Software, in which case this agreement will immediately terminate and we will refund you the unused portion of any paid fees.
6.1 - You will not:
6.1.1 - sublicense, assign, resell, share, pledge, rent or transfer any of your rights under this agreement in relation to the Software;
6.1.2 - copy, redistribute, reproduce, license or publish the Software or any of the Software content; or
6.1.3 - modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Software or otherwise attempt to: (a) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software; or (b) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Software, without the express permission of the Licensor.
6.2 - In respect of your access and use of the Software you will comply with all applicable laws and regulations and all guidelines, procedures and policies notified by the Licensor from time to time and will notify the Licensor if you learn of any unauthorised use of the Software.
6.3 - You agree that you will not use the Software for any unlawful purpose, that you will not use the Software in a manner that may damage, disable, overburden or impair the Software, that you will not attempt to gain unauthorised access to the Software and that you will not use the Software to unlawfully collect information about third parties (including without limitation, e-mail addresses).
6.4 - Where we permit you to add user accounts under your account, you will ensure that any such user is made aware of these T&Cs and complies with them. You are entirely responsible for all activities that occur through the use of your account and those of your users.
7.1 - The Software is provided, to the extent permitted by law, on an "as is", "with all faults" and "as available" basis without warranty of any kind. You should undertake appropriate due diligence to ensure that the Software and Services meet your needs before use or installation. By installing, accessing or otherwise using the Software you expressly acknowledge and agree that access to and use of the Software is at your sole risk. You guarantee to the Licensor that you have not entered into this agreement in reliance on any representation made by the Licensor which is not recorded expressly in this agreement or on the Licensor's website.
7.2 - To the extent permitted by law, the Licensor does not warrant:
7.2.1 - the timeliness, completeness or performance of the Software (or any of the Software content);
7.2.2 - the correctness, accuracy, reliability, fitness for purpose or otherwise of the Software, any of the Software content or related documentation; or
7.2.3 - that the functions contained in the Software will meet your requirements, or that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected.
7.3 - We will always comply with our mandatory and non-excludable obligations at law. You acknowledge that the Software and Services are intended to be provided for business use and, to the extent possible under those laws, the provisions of New Zealand’s consumer protection and fair trading laws (including sections 9, 12A, 13 of the Fair Trading Act 1986) are excluded from this agreement.
7.4 - You acknowledge that the Licensor will be required to pass data generated by your use of the Software to third party carriers on your behalf. The Licensor provides no warranties regarding the accuracy of such data and you agree that the Licensor has no liability for any costs or losses incurred as a result of any data inaccuracy (including, without limitation, any increased fees charged by the third party carriers receiving the data).
7.5 - To the extent permitted by law, the Licensor expressly excludes all warranties, express or implied, including, but not limited to, the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. The entire risk arising out of use or performance of the Software remains with you.
8.1 - To the maximum extent permitted at law, the Licensor shall have no liability to you for any loss, damage or liability (including but not limited to a loss arising from negligence on the part of the Licensor) under or in relation to this agreement, the Software or Services. If, despite the foregoing, the Licensor does incur any liability to you the Licensor's total aggregate liability to you for all claims under or in connection with this agreementshall not exceed the fees paid by you in the prior 12 months.
8.2 - Under no circumstances, including negligence, shall the Licensor or its suppliers or distributors be liable for any incidental, special, indirect or consequential damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of data, or any other pecuniary loss) arising out of or relating to this agreement or the Software and Services.
8.3 - You shall indemnify the Licensor against any claim, action, proceeding, judgment, damage, loss, expense (including legal expenses) or liability incurred or suffered by or brought or made or recovered against the Licensor in connection with your use of the Software and your negligence or wilful default or a breach by you of any term of this agreement.
8.4 - Nothing in this agreement is intended to have the effect of limiting the Licensor's liability for any matter for which it is unlawful or illegal for the Licensor to exclude or attempt to exclude its liability.
9.1 - The Software and all related documentation and information is the Licensor’s confidential information. Each party must keep the confidential information of the other party (being all information exchanged between the parties in connection with this agreement, including the Software) confidential and shall not disclose any such confidential information without the prior written consent of the other party.
9.2 - Clause 9.1does not apply to any information which:
9.2.1 - is public knowledge other than as a result of a breach of an obligation of confidentiality;
9.2.2 - is received from a third party who is in lawful receipt of this information and is able todisclose it to the recipient without restriction;
9.2.3 - is required by law to be disclosed (provided that the disclosing party first notifies the other party (if permitted by such laws) in order to allow that party reasonable opportunity to seek interlocutory relief, the disclosing party only discloses information to the extent legally required, and the disclosing party uses reasonable endeavours to ensure confidential treatment of the disclosed information); or
9.2.4. is disclosed to a third party to enable the other party to properly perform its obligations under or comply with the terms of this agreement.
10. 1 - You will comply with all applicable laws relating to the collection, storage, use, disclosure and processing of information relating to identifiable individuals (personal information).
10. 2 - You must only provide the Licensor with personal information to the extent necessary for the Licensor to perform its obligations under this agreement and all personal information that you upload to the Software must have been collected with consent from the relevant individuals that is sufficient to permit you to share their personal information with the Licensor in order for the Licensor’s ordinary business functions and to facilitate your use of the Software.
10. 3- Subject clause 10.4, the Licensor will collect, store, process and use any personal information received from you in accordance with its responsibilities under the Privacy Act 2020 and will not disclose such information without your consent (unless it is permitted to by law) and provided that the Licensor is entitled to keep such information and use it for its reasonable business purposes.
10.4 - You acknowledge and agree that the Licensor may access or disclose information about you, and your personnel and your customers,in order to:
10.4.1 - comply with the law or legal proceedings served on it;
10.4.2 - enforce and investigate potential breaches of this agreement or any other unauthorised use of the Software; or
10.4.3 - protect the rights, property or safety of the Licensor, its employees, customers or the public.
10.4.4 - you consent to the access and disclosures described in this clause 10.
10.5 - In order to provide you with the Software and any improvements thereto, the Licensor may also collect certain information about the performance of the Software and your use of it. The Licensor may make use of such information to track usage and to better understand the use of the Software, to improve and revise the Software based on such usage, to publish industry level statistics and for technical support purposes.
11.1 - Either party may terminate this agreement (and the Licence granted to you hereunder) at any time for any reason, by providing one months' written notice of such termination to the other party.
11.2 - The Licensor or customer may terminate this agreement if the other party commits a breach of any of the material terms of this agreement, and, if that breach is capable of remedy, fails to remedy that breach within 15 days after receiving a written notice from the first party requiring remediation.
11.3 - Where we permit you to add user accounts under your account, only you, as the account holder (and not the user) can give notice of termination on behalf of the customer pursuant to clauses 11.1and11.2
11.4 - On termination of this agreement:
11.4.1 - both parties will be discharged from any further obligations under the agreement, but each party reserves its rights in respect of any breaches of the agreement which occurred before termination;
11.4.2 - you will immediately cease using the Softwareand ensure that any users under your account (if any) immediately cease using the Software;
11.4.3 - the parties will each return any confidential information of the other party; and
11.4.4 - you will not be entitled to any refund of any fees paid (whether in advance or otherwise) to the Licensor under this agreement if you have a monthly plan. If you are on an annual plan the Licensor mayprovide a partial refund on a pro-rata basis for the unused portion of that annual plan, except where we have undertaken any work in relation to our Software at your (or your permitted user’s) request and have not separately charged you for that work.
12.1 - This agreement will be governed by and construed according to the laws of New Zealand and you irrevocably submit to the exclusive jurisdiction of the courts of New Zealand. If any dispute arises in respect of this agreement or the Software, you shall enter into good faith negotiations with the Licensor to resolve a course of action for resolution of the dispute prior to commencing any formal legal proceedings.
12.2 - If any provision of this agreement is determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any country or area in which these terms are intended to be effective, then to the extent and within the jurisdiction in which that term is illegal, invalid or unenforceable, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
12.3 - This agreement constitutes the entire agreement between you and the Licensor with respect to your use of the Software and supersedes all prior or contemporaneous understandings regarding the use of the Software. Any variation to the agreement must be in writing and signed by the parties.
12.4 - The Licensor may assign its interest in this agreement at any time without notice and for the purposes of this agreement references to the Licensor shall include any person or organisation to which it has licensed or assigned its rights and obligations.
12.5 - You may not assign, sublicense or otherwise transfer your interest in this agreement or the Licence without the prior written consent of the Licensor. Any change in control of you will be deemed an assignment.
12.6 - Neither party shall be liable for any delay or failure to fulfil its obligations (except for a payment obligations) under this agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including without limitation, acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance) provided that the affected party shall notify the other party as soon as practicable of the relevant event(s) and shall use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event(s).
12.7 - No delay, neglect or forbearance on the part of either party in enforcing any term or condition of this agreement shall be deemed to be a waiver or in anyway prejudice any right of that party under this agreement unless given in writing.
12.8 - You will not solicit any of the Licensor's employees to work for you on any basis, whether as an employee or a contractor.
12.9 - Any provision necessary for the interpretation or enforcement of this agreement shall survive termination of the agreement.
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