Author-it Cloud Subscription Agreement

Author-it Cloud Subscription Agreement
This Agreement sets out the terms and conditions upon which Author-it will provide Author-it Cloud as Software as a Service to
the Client. By accepting this Agreement you represent that you have the authority to enter into this Agreement on behalf of the
Client and agree to the terms herein. If you do not agree with the terms or do not have the authority to enter into this Agreement,
you may not use Author-it Cloud.
1.
1.1.
1.2.
1.3.
1.4.
1.5.
1.6.
1.7.
1.8.
1.9.
1.10.
1.11.
1.12.
1.13.
1.14.
1.15.
1.16.
1.17.
Definitions
“Agreement” means this Author-it Cloud Subscription
Agreement, between Author-it and the Client.
Author-it” means Author-it Software Corporation Limited.
“Author-it Aspect” means the dynamic publishing capability which may form part of Author-it Cloud, subject to the
functionality purchased by the Client.
“Author-it Cloud” means the combined service of providing the Author-it software, hardware platform on which
the Software will be hosted and associated support and
maintenance services as defined in this Agreement.
“Availability” means the amount of time Author-it Cloud
was scheduled to be available less any Unscheduled
Downtime expressed as a percentage.
“Client” means the person or legal entity that has purchased the Author-it Cloud service.
“Correction” means replacement of corrective code or
documentation, which rectifies a Discrepancy (as hereinafter defined), and includes, but is not limited to, workarounds, support releases, Updates, component replacements and patches.
“Critical Fault" means an error, defect, or omission that
causes the Software to be unusable by all Users.
“Data” means all electronic data created by the Client and
stored, from time to time, on Author-it Cloud.
“Discrepancy” means a material difference between the
operation of the Software and the description of the operation of the Software as contained in the Documentation.
“Documentation” means Author-it’s standard documentation about the Software that Author-it makes available
online to all of its clients and users. “Documentation” includes relevant user guides, quick guides, memos and bulletins with operating tips.
“Primary User” means a User who is authorized by the
Client to communicate with Author-it on matters relating
to the implementation and use of the Software. The Primary Users will be Author-it’s primary point of contact in
respect to implementation, use, support and maintenance
issues.
“Scheduled Downtime” means the time Author-it Cloud is
Unavailable due to scheduled maintenance or other operational activities as required to ensure the effective operation of the service.
“Software” means the specific items and modules of
Author-it software described in the relevant quotation or
order form provided to the Client. “Software” includes
any new releases, Upgrades and Updates. “Software” also
includes the Documentation.
“Subscription Fees” means Author-it’s charges to provide
Author-it Cloud to the Client, as set out in Author-it’s
proposal or quotation to the Client.
“Subscription Start Date” means the first date upon which
the Client, and its Users will gain access to the Software.
“Unavailable” means the non-functioning of Author-it
Cloud, which results in the Client’s inability to use the
Software. Author-it Cloud shall not be deemed Unavailable where the non-functioning is caused by private or public network connections to Author-it Cloud that are outside the control of Author-it or the hosting provider with
1.18.
1.19.
1.20.
1.21.
2.
2.1.
2.2.
2.3.
2.4.
2.5.
whom Author-it contracts, and faults or reduced functionality caused by the Client’s User error.
“Unscheduled Downtime” means the minutes during
which Author-it Cloud is Unavailable when it was scheduled to be available.
“Update” means a minor software release whose primary
purpose is to remove incompatibilities, fix “bugs”, enhance the stability or remedy technical faults in the Software.
“Upgrade” means a major software release whose primary
purpose is to add new functionality or to enhance the performance of the Software. Notwithstanding the foregoing,
an “Upgrade” does not include new software or modules
(whether or not branded as Author-it software) that Author-it develops, markets and prices separately. An Upgrade does not include any special functionality or analytical tool that Author-it may design for a specific client but
does not make available for general release to all clients.
"Users" means individuals who are authorized by the
Client to use the Software, or a specific module of the
Software, for whom subscriptions to the Software have
been purchased, and who have been supplied unique user
identifications and passwords. Users may include the Client’s employees, consultants, contractors and agents.
Author-it Cloud
Pursuant to this Agreement, Author-it will, at its cost,
provide the Author-it Cloud service.
Users will be able to log on to Author-it Cloud and make
use of its functionality according to the subscription edition purchased.
For security purposes, Author-it will issue each User with
a login name and password. A User may change its password at any time. The Client shall encourage each User to
select a password that is not easy to copy and to maintain
the secrecy of its login name and password at all times.
Author-it intends the login name and password to be personal to each User and a User shall not attempt to circumvent security measures by sharing its login name and
password with another staff member or person outside the
organisation. In any case, two Users will not be able to
access the Software at the same time with the same login
name and password. Author-it shall not be responsible for
unauthorized access resulting from a person without access privileges using the login name and password of a
User. User subscriptions are for designated Users and
cannot be shared or used by more than one User, but may
be reassigned to new Users, replacing former Users who
no longer require ongoing use of the Software.
Author-it may contract with an independent hosting provider to provide the Author-it Cloud hardware platform.
In such event, the Client shall comply with such provider’s standard terms and conditions applicable to users of
its hosted servers. Author-it disclaims any liability for
acts, omissions and errors of the hosting provider including without limitation, acts, omissions and errors causing
loss of Data and Data security breaches. Upon notice to
the Client, Author-it may replace the hosting provider
with another third party hosting provider or implement
other suitable arrangements to provide Author-it Cloud for
the Client.
Author-it shall provide details concerning its procedures
Page | 1
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
Author-it Cloud Subscription Agreement
2.6.
2.7.
2.8.
2.9.
2.10.
3.
3.1.
3.2.
3.3.
3.4.
4.
4.1.
for managing Author-it Cloud to promote Data safety and
security on its website.
Author-it shall use commercially reasonable efforts to
make Author-it Cloud available on a 24/7 basis, except
for: (a) planned maintenance periods (of which notice will
be provided and will be scheduled whenever practical during weekend hours); or (b) unavailability due to circumstances beyond Author-it’s control, including without limitation, Acts of God, Acts of Government, terror attacks,
Internet access failures or denial of service attacks or labor
issues.
The Client shall only use the Software for its internal
authoring and content management requirements.
The Client shall not store any published output on Authorit Cloud for access by staff or clients other than the authorized Users. Notwithstanding the foregoing, nothing in
this clause shall prevent the Client from publishing content to Author-it Aspect (if purchased as part of Author-it
Cloud) for consumption by the Client’s staff or clients.
Limitations are required in relation to storage capacity and
database size. The hosted database may not exceed the
size specified in the relevant quotation or order. The Subscription Fees are subject to change if the Client’s requirements cause it to exceed such limitations. The Subscription Fees are further subject to change if the Client
requests increases in functionality beyond the subscription
level purchased and specified in the relevant quotation or
order.
Author-it Cloud data storage may only be used with
respect to the Author-it Cloud service. Data not directly
related to the use of Author-it Cloud may not be stored on
Author-it Cloud.
Subscription Fees
Author-it Cloud is sold to the Client on the basis of a
monthly subscription.
The Subscription Fees cover the cost of providing Authorit Cloud to the number of Users designated in the relevant
quotation or order. The Subscription Fees quoted to the
Client shall apply during the Initial Subscription Term.
Author-it may increase the Subscription Fees to: (a) reflect
greater software usage rights requested by the Licensee,
(b) offset any increase in the Consumer Price Index, (c)
reflect the value of any greater functionality or enhancements added to Author-it Cloud, (d) reflect the actual cost
of providing support and maintenance services to the Client or (e) reflect any other changes in Author-it’s pricing
schedule for clients of Author-it Cloud. Author-it shall
give the Client notice of any increase in the fees at least 60
days before the end of the initial subscription term or any
renewal term, as the case may be. The new Subscription
Fees shall then take effect upon the commencement of the
new renewal term.
Except as otherwise quoted: (a) Subscription Fees are
quoted and payable in United States dollars; (b) Subscription Fees are based on User access rights purchased and
not actual usage; (c) the subscription period and the payment obligations are non-cancellable and fees paid are
non-refundable; and (d) the number of User subscriptions
purchased cannot be decreased during the relevant subscription term. Subscription Fees are based on monthly
periods that begin on the Subscription Start Date and each
monthly anniversary thereof. Subscription Fees for new
Users added in the middle of a monthly period will be
charged for that full monthly period and the monthly periods remaining in the applicable subscription term.
Payment Terms
The Client shall pay the Subscription Fees in advance as
detailed in the relevant quotation or order. At the start of
each subscription term, Author-it shall invoice the Client
for the Subscription Fees applicable to that term. When
new User subscriptions are added, Author-it shall issue a
supplementary invoice for the Subscription Fees applicable to such new Users for the balance of that term. To use
the Software, the Client must pay all Subscription Fees
and other fees according to the agreed payment terms. If
the Client does not pay such fees, Author-it may deprive
the Client access to the Software, in addition to Authorit’s other rights and remedies.
4.2.
5.
5.1.
5.2.
6.
6.1.
6.2.
6.3.
6.4.
7.
7.1.
Except as required by law, all payments by the Client to
Author-it must be made without deduction or withholding
and free from set-off or counter-claim. If the Client is required by law to make any deduction or withholding from
any sums paid or payable by the Client to Author-it, then
the amount payable to Author-it must be increased to the
extent necessary to ensure that, after making that deduction or withholding, Author-it receives and retains (free
from any liability in respect of any such deduction or
withholding) a net amount equal to what it would have received or retained had no such deduction or withholding
been required or made.
Primary Users
The Client shall appoint up to three Primary Users to: (a)
Assist with the implementation of the Software; (b) train
Users how to use the Software to its full advantage; and
(c) support Users, particularly during the set up and implementation stage, but also on an on-going basis.
The Client shall ensure that its Primary Users are adequately trained to carry out the foregoing tasks. Each
Primary User should be knowledgeable about: (a) the features and functionality of the Software, (b) the Client’s information management policies and procedures, and (c)
the Client’s computer system and workstations.
Client Responsibilities
The Client shall (a) be responsible for Users’ compliance
with this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of the Data and of
the means by which the Data was acquired, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Author-it
promptly of any such unauthorized access or use, and (d)
use the Software only in accordance with the Documentation and applicable laws and government regulations, including relevant privacy laws.
The Client shall not (a) make the Software available to
anyone other than Users, (b) use Author-it Cloud to store
or transmit infringing, libellous, or otherwise unlawful or
tortious material, or to store or transmit material in violation of third-party privacy rights, (c) interfere with or disrupt the integrity or performance of Author-it Cloud or
third-party data contained therein, or (d) attempt to gain
unauthorized access to Author-it Cloud or related systems
or networks.
The Client shall only use Author-it Cloud for its internal
business purposes. If a customer of the Client uses the
Client’s access to Author-it Cloud for any purpose, such
use by the customer shall not be deemed an internal business purpose of the Client. The Client shall not allow
such use except with the express written consent of Author-it, who may grant such consent subject to appropriate
commercial arrangements.
The Client may use Author-it Cloud for its internal authoring, content management and publishing needs. The Client may also use Author-it Cloud for the authoring, content management and publishing needs of other persons or
companies provided that the content is provided to such
other persons or companies in a published file format that
does not require them to access or use Author-it Cloud.
The Client shall not allow such other persons or companies to use Author-it Cloud to author, manage or publish
content unless such other persons or companies obtain appropriate user subscriptions from Author-it.
Availability
Author-it sets high standards for the Availability of the
Author-it Cloud service. Author-it will guarantee Availability of 99.9%. In making this guarantee, Author-it accepts responsibility for Unscheduled Downtime in excess
of 45 minutes per month. Author-it shall credit the Client
5% of the monthly Subscription Fees (pro-rated where annual Subscription Fees are paid) for each additional 30
minutes of Unscheduled Downtime in excess of 45
minutes per month, up to and not exceeding 100% of one
monthly Subscription Fee payment (prorated for one
month where the annual Subscription Fees are paid in advance). The credit will be applied to future payments for
any Author-it goods and services. The following examples
illustrate the application of this clause:
Page | 2
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
Author-it Cloud Subscription Agreement
7.1.1.
7.2.
8.
8.1.
8.2.
8.3.
8.4.
9.
9.1.
9.2.
9.3.
9.4.
9.5.
9.6.
9.7.
9.8.
If the Unscheduled Downtime in a month is 46
minutes, the Client will receive a 5% credit of
the total Subscription Fees pro-rated for one
month [i.e. one-twelfth (1/12) of the annual Subscription Fees multiplied by 5%].
7.1.2.
If the Unscheduled Downtime in a month is 76
minutes, the Client will receive a 10% credit of
the total Subscription Fees pro-rated for one
month [i.e. one-twelfth (1/12) of the annual Subscription Fees multiplied by 10%].
Author-it will provide the Client with monitoring tools and
show process and platform availability and will also include details of Scheduled Downtime and Unscheduled
Downtime.
Intellectual Property
Author-it Cloud contains confidential and/or unpublished
information protected by copyright, trade secret and other
intellectual property laws. The Client may not disclose
the Software to others, or remove or alter any copyright
notices from the reports and Documentation. The Client
shall use commercially reasonable efforts to protect the
Software and related Documentation from unauthorized
use, reproduction, distribution or publication.
Author-it retains exclusive ownership of all copyright and
other intellectual property rights in the Software and the
Documentation. The Client shall not, during or at any
time after the expiry or termination of this Agreement,
commit, suffer or permit any act that infringes Author-it’s
copyright and intellectual property rights in the Software
and the Documentation.
The Client shall not: (a) Translate, adapt, reverse engineer
or copy the Software for any reason whatsoever; (b) provide or otherwise make Author-it Cloud available in any
form to any person outside the Client’s organization without the express written consent of Author-it; (c) attempt to
bypass, circumvent, compromise or thwart any security
procedures applicable to Author-it Cloud; and (d) take any
action that would cause injury to Author-it’s rights in the
Software or that would deprive Author-it of the Subscription Fees to which it is entitled under this Agreement.
The Client shall indemnify Author-it against all liabilities,
costs, losses, damages and expenses that Author-it may
incur or suffer because of the Client’s breach of Authorit’s copyright and other intellectual property rights in the
Software and related Documentation.
Technical Support
The Subscription Fees include the cost of providing remote technical support to the Primary Users as provided
below.
Author-it shall maintain a Help Desk to field technical
support questions from the Primary Users. The Help Desk
will be able to access the Data on-line to emulate the problem experienced by the Primary User and the Client authorizes access for that purpose.
From time to time, Author-it may establish reasonable
procedures for communicating with the Help Desk, logging Help Desk questions and tracking their resolution.
The Client shall comply with such procedures.
Before contacting the Help Desk, the Primary User shall
refer to Author-it’s on-line Knowledge Center, which may
answer the Primary User’s question.
Where possible, the Help Desk will provide an immediate
answer to the support question. Where this is not possible,
Author-it commits to use commercially reasonable efforts
to respond to the support question as promptly as possible,
commensurate with the seriousness of the issue raised.
The Help Desk shall be open between the hours of 9:00
AM and 5:00 PM (US Pacific), excluding weekends and
public holidays.
Author-it shall provide all technical support remotely, by
means of telephone, email or the Internet. If the Client
ever requests Author-it to provide on-site support, Authorit shall provide on-site support at its standard rates and
charges.
Under this arrangement, Author-it shall provide technical
support to the Primary Users and the Primary Users shall
provide technical support to the other Users.
9.9.
9.10.
10.
10.1.
10.2.
10.3.
10.4.
10.5.
Each Primary User shall provide first level support to the
other Users. If a Primary User is not able to resolve a
support issue raised by another User, the Primary User
shall then request support from Author-it. Author-it will
not normally communicate with a User who is not a Primary User.
The Primary Users shall adopt a procedure for the other
Users to report their issues and questions about the Software to the Primary Users. The Primary Users shall endeavour to resolve such issues and answer such questions
before contacting the Help Desk. If the Primary Users are
not able to resolve an issue or answer a question from a
User, the Primary Users shall seek further assistance from
Author-it technical support.
Maintenance
The Subscription Fees include the cost of providing
maintenance on Author-it Cloud as provided below.
Author-it’s Responsibilities:
Author-it agrees to:
10.2.1.
Maintain the Software so that it operates substantially in conformity with applicable specifications, including but not limited to, the specifications in any Documentation;
10.2.2.
Correct all critical and significant Software errors that Author-it discovers or that are brought
to Author-it’s attention;
10.2.3.
Promptly offer to the Client all Upgrades, Updates, modifications, refinements, Corrections,
and enhancements which Author-it incorporates into Author-it Cloud. However, while
Author-it is committed to the ongoing development of the Software, this Agreement does
not commit Author-it to any specific Upgrade
path or frequency for issuing Upgrades;
10.2.4.
Use commercially reasonable efforts to achieve
its published response times;
10.2.5.
Provide an error and defect reporting service,
thereby giving the Client assurance that Author-it will promptly investigate and correct in
a future release of the Software any errors, defects, or omissions made known to Author-it.
Author-it may implement such error and defect
reporting service on its website;
10.2.6.
Support and maintain Author-it Cloud; and
10.2.7.
Offer the Client access to the latest version of
the Software, including all Upgrades and Updates. As to any new software or modules that
Author-it develops, markets and prices separately, Author-it shall provide access to the
Client at a price and terms to be agreed.
The Client’s Responsibilities:
The Client shall procure its Primary Users to:
10.3.1.
Report all suspected Discrepancies to the Author-it Help Desk;
10.3.2.
Use commercially reasonable efforts to assist
Author-it in its efforts to find Corrections to
confirmed Discrepancies;
10.3.3.
Provide such information to Author-it as will
enable Author-it to respond to the Primary User’s problem or question in an efficient manner;
10.3.4.
Comply with Author-it’s error and defect reporting procedures; and
10.3.5.
Accept Upgrades and new versions as and
when released, since Author-it shall be maintaining just one version of the Software on Author-it Cloud for all of its Clients.
Author-it is not obligated to provide any hardware
maintenance services, other than in respect to the provision of Author-it Cloud.
Author-it is not obligated to take action in respect to:
10.5.1.
Discrepancies resulting from a malfunction of
the Client’s computer system or Internet access, including workstation malfunctions; or
10.5.2.
Discrepancies that do not significantly impair
Page | 3
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
Author-it Cloud Subscription Agreement
10.6.
10.7.
11.
11.1.
11.2.
11.3.
or affect the operation of the Software.
The Client is responsible for maintaining its local area
network and workstations. The Client is also responsible
for providing Internet access to the workstations of Users
with appropriate security parameters allowing such Users
to access Author-it Cloud.
Author-it may change the Software and the Documentation at any time without notice.
Confidential Information
“Confidential Information” means:
11.1.1.
In respect to Author-it, all information of a
non-public nature in whatever form (verbal,
written or electronic) concerning Author-it’s
business and the Software, including all such
information that Author-it may have disclosed
to the Client or its Users prior to the Subscription Start Date. Without limiting the generality
of the foregoing, the parties shall regard the
following types of information as Confidential
Information of Author-it: Documentation; future Updates, Upgrades and new releases; report formats, web interfaces, concepts, design
ideas; instructions; inventions; know-how;
fees, prices and other commercial terms in this
Agreement; manuals; marketing strategies;
market research; patent information; pricing
strategies; product enhancements; software design documents; software features; specifications; technical information; and trade secrets.
11.1.2.
In respect to the Client, all information of a
non-public nature in whatever form (verbal,
written or electronic) concerning the Client’s
business, employees, and foreign exchange
policies, including all such information that the
Client may have disclosed to Author-it prior to
the Subscription Start Date. Without limiting
the generality of the foregoing, the parties shall
regard the following types of information as
Confidential Information of the Client: Data
together with information, reports and analyses
compiled from the Data and specific to the Client.
11.1.3.
Notwithstanding clause 11.1.1 and clause
11.1.2 above, the following information shall
not constitute Confidential Information: (a) Information that is in the public domain or that
subsequently enters the public domain through
no fault of either party; (b) Information that either party receives in good faith from a third
party provided that such third party obtained
such information through lawful means and
had the right to disclose such information to
such party; and (c) Information that either party
can demonstrate by written record it knew on
the date of disclosure.
From time to time, the parties may receive Confidential
Information from each other.
11.2.1.
Each party agrees that it will keep secret all
Confidential Information of the other party and
not disclose the same to anyone else during or
after the term of this Agreement. A party receiving Confidential Information will not share
such Confidential Information with a person
outside its organisation. However, Author-it
may share the Client’s Confidential Information with a duly authorized agent pursuant
to clause 14.
11.2.2.
Each party agrees to limit access to Confidential Information of the other party to qualified
staff who understand and respect the importance for confidentiality.
11.2.3.
Each party agrees to deliver, promptly upon
termination of this Agreement, all Confidential
Information in its possession belonging to the
other party.
For marketing purposes, Author-it shall have the right to
disclose that the Client is a subscriber to Author-it Cloud.
11.4.
12.
12.1.
12.2.
12.3.
12.4.
12.5.
12.6.
13.
13.1.
13.2.
13.3.
13.4.
In addition to the confidentiality obligations above, each
party shall fully comply with relevant privacy laws.
Data Security
Author-it acknowledges that the Data is highly confidential and shall use commercially reasonable efforts to protect the Data from unauthorized use or disclosure. Without limiting the generality of the foregoing, Author-it shall
restrict access to Author-it Cloud to trusted staff or contractors who require access to perform their support and
maintenance obligations and who recognise the importance of maintaining strict Data security procedures.
Author-it employs standard industry protocols to protect
the Data from unauthorized access, including the latest
Data encryption technology.
Author-it shall store all Data on Author-it Cloud with the
latest firewalls, password protection and other security
features. Author-it shall use commercially reasonable efforts to locate Author-it Cloud at a safe and secure site.
Upon the Client’s request, Author-it will provide further
information concerning its security procedures for protecting Author-it Cloud and the Data.
While Author-it shall use commercially reasonable efforts
to ensure a safe and secure environment for the transmission and storage of Data, Author-it accepts no liability for
any security breaches, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorized access, theft, disgruntled employees and
other fraudulent acts.
Author-it backs up the Data onsite on a daily basis and off
site on a weekly basis.
Author-it disclaims any intellectual property rights in the
Data. Author-it shall have no right to use the Data, or Data templates created by the Client, for any purpose except
to support the Client’s use of the Software. However,
nothing herein prohibits Author-it from using the Data to
track Client usage and to promote system optimisation.
Subscription Renewal & Term
The initial subscription term of this Agreement is stated in
the relevant quotation or order and is non-cancellable.
However, this Agreement shall be subject to automatic renewal for additional terms of the same length as the initial
subscription term, as follows:
13.1.1.
Either party may give notice of its intention not
to renew at least 30 days before the end of the
initial subscription term, in which case termination shall take effect at the end of the initial
subscription term.
13.1.2.
If neither party gives such notice, this Agreement shall automatically roll-over for a renewal
term of the same duration. Either party may
give notice of its intention not to renew at least
30 days before the end of the relevant renewal
term, in which case termination shall take effect at the end of the relevant renewal term.
This same procedure shall apply to subsequent
renewal terms until either party gives 30 days
before the end of the relevant renewal term.
13.1.3.
Author-it has no obligation to notify the Client
of the end of the initial subscription term or
any renewal term. It is the Client’s responsibility to give notice of termination if the Client
does not wish this Agreement to renew automatically.
Notwithstanding clause 13.1, either party may terminate
this Agreement if the other party commits a material
breach of this Agreement, and fails to cure such breach (if
capable of cure) within 30 days after notice thereof.
Prior to the termination of this Agreement, the Client may
download copies of all relevant Data and reports. Upon
the Client’s request, and at the Client’s cost, Author-it
shall provide reasonable assistance to enable the Client to
transfer its Data (including all Data transaction history)
from Author-it Cloud to either the Client’s server or that
of the Client’s designated third party service provider.
Upon the termination of this Agreement: (a) The Client
shall pay Subscription Fees and other charges to the date
of termination; (b) the Client shall stop using Author-it
Page | 4
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
Author-it Cloud Subscription Agreement
13.5.
13.6.
14.
14.1.
14.2.
14.3.
15.
15.1.
15.2.
15.3.
16.
16.1.
16.2.
Cloud and the Client authorizes Author-it to withdraw all
User access privileges to Author-it Cloud; (c) Each party
shall return Confidential Information, materials and documentation belonging to the other party; (d) The Client
shall return any intellectual property and Documentation
belonging to Author-it; and (e) Author-it shall remove the
Data from Author-it Cloud and dispose of such Data within 30 days, although Author-it shall have the right, but not
the obligation, to retain a copy of such Data for archival
purposes.
The termination of this Agreement shall not prevent either
party from pursuing a cause of action that accrued before
the date of termination.
Termination of this Agreement shall not affect any clauses
therein that, by their nature, the parties intended to survive
termination including, without limitation: Clause 4 (Payment Terms); Clause 11 (Confidential Information);
clause 13 (Term); clause 16 (Mutual Indemnification);
clause 17 (Disclaimers); clause 18 (Limitation of Liability); clause 21 (Non-Waiver); and clause 28 (Governing
Law).
Delegation
To provide prompt and efficient service to its Clients,
Author-it may delegate some or all of its rights and obligations under this Agreement to third parties with the appropriate resources and experience. Such outsourced obligations may include, without limitation, the provision of
hosted services, integration services, customisation services, set-up services, support, maintenance and training.
Any such delegation shall not affect the Client’s rights and
obligations under this Agreement.
Author-it may notify the Client in writing of such third
party to whom it has delegated authority and the scope of
such delegated authority. Author-it may request the Client
to deal with such third party in respect to matters falling
within its scope of authority on the same basis as the Client would otherwise have dealt with Author-it.
Upon written notice to the Client, Author-it may revoke a
third party’s authority to act for Author-it or Author-it
may replace such third party.
Warranty
Author-it warrants that it developed the Software in accordance with general industry standards and that the
Software is free of material defects and shall perform substantially in accordance with the Documentation under
normal use and circumstances. The term of this warranty
is 90 days from the Subscription Start Date.
If the Software fails to operate in accordance with this
warranty, Author-it shall either modify the Software so
that it does operate in accordance with this warranty or refund the Subscription Fees paid by the Client, at Authorit’s sole discretion.
Except for the limited warranty described above, there are
no other warranties, either expressed or implied, concerning the Software or Documentation. Author-it excludes,
and expressly disclaims, all express and implied warranties of merchantability or fitness for purpose.
Mutual Indemnification
Author-it shall defend the Client against any claim, demand, suit, or proceeding ("Claim") made or brought
against the Client by a third party alleging that the use of
the Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party,
and shall indemnify the Client for any damages finally
awarded against, and for reasonable attorney’s fees incurred by, the Client in connection with any such Claim;
provided, that the Client (a) promptly gives Author-it written notice of the Claim; (b) gives Author-it sole control of
the defense and settlement of the Claim (provided that Author-it may not settle any Claim unless the settlement unconditionally releases the Client of all liability); and (c)
provides to Author-it all reasonable assistance, at Authorit’s expense.
The Client shall defend Author-it against any Claim made
or brought against Author-it by a third party arising from
the Client’s breach of this Agreement, including any
Claim alleging that the Data infringes or misappropriates
16.3.
17.
17.1.
17.2.
18.
18.1.
18.2.
19.
19.1.
20.
20.1.
20.2.
the intellectual property rights or violates the privacy
rights of a third party or otherwise violates applicable law,
and shall indemnify Author-it for any damages finally
awarded against, and for reasonable attorney’s fees incurred by, Author-it in connection with any such Claim;
provided, that Author-it (a) promptly gives the Client written notice of the Claim; (b) gives the Client sole control of
the defense and settlement of the Claim (provided that the
Client may not settle any Claim unless the settlement unconditionally release Author-it of all liability); and (c)
provides to the Client all reasonable assistance, at the Client’s expense.
This clause 16 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type
of Claim described in this clause.
Disclaimer
Except as expressly provided herein, neither party makes
any warranties of any kind, whether expressed, implied,
statutory or otherwise, and each party specifically disclaims all implied warranties including any warranties of
fitness for a particular purpose, to the maximum extent
permitted by law.
All of the above exclusions, limitations and disclaimers
shall survive the termination of this Agreement.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY, EXCEED THE TOTAL
AMOUNT PAID BY THE CLIENT HEREUNDER OR,
WITH RESPECT TO ANY SINGLE INCIDENT, THE
LESSER OF $500,000 OR THE AMOUNT PAID BY
THE CLIENT HEREUNDER IN THE 12 MONTHS
PRECEDING THE INCIDENT. THE FOREGOING
SHALL NOT LIMIT THE CLIENT’S PAYMENT
OBLIGATIONS UNDER CLAUSE 4 (PAYMENT
TERMS).
IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS OR REVENUES OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE
DAMAGES
HOWEVER
CAUSED,
WHETHER IN CONTRACT, TORT OR UNDER ANY
OTHER THEORY OF LIABILITY, AND WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY
OF
SUCH
DAMAGES.
THE
FOREGOING DISCLAIMER SHALL NOT APPLY TO
THE EXTENT PROHIBITED BY APPLICABLE LAW.
Other Services
Except as expressly stated in this Agreement, the Subscription Fees do not cover the cost of: (a) Installation,
implementation and consulting services; (b) Customization services; (c) Integration services; (d) Data importing
services; (e) Networking services; (f) Software configuration and preference setting; or (g) Training. Upon the Client’s request, Author-it shall perform such other services
at its standard rates and charges, plus travel and accommodation expenses.
Force Majeure
Author-it shall not be liable for any failure or delay in
performing this Agreement resulting from circumstances
beyond its reasonable control. Such circumstances include, without limitation: Unavoidable delays in providing support and maintenance services; delays in the delivery of Upgrades, Updates, Corrections and new releases;
programming delays; malfunctions of Author-it Cloud;
default by independent contractors; strikes and labour unrest; war; terrorism; government intervention; fire;
flood; accident; natural disaster; or any other event
commonly referred to as an "Act of God".
If Author-it invokes force majeure, it shall do all things
within its power to end the circumstances causing the
force majeure and to mitigate any losses that the Client
may suffer as a consequence thereof. However, Author-it
shall not be liable for any such losses.
Page | 5
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
Author-it Cloud Subscription Agreement
21.
21.1.
22.
22.1.
22.2.
22.3.
23.
23.1.
23.2.
23.3.
24.
24.1.
24.2.
Non-Waiver
No failure by either party to insist upon strict performance
of this Agreement or any delay in exercising any of its
rights or remedies, shall constitute a waiver or variation of
this Agreement or a waiver of any such right or remedy.
Severability
The parties have entered into this Agreement believing in
good faith that it fully complies with all applicable laws.
Each clause in this Agreement is severable in whole or in
part. If any clause is determined to be illegal or unenforceable for any reason, the parties shall modify such
clause, but only to the extent necessary to make it legal
and enforceable. If modification is not possible without
materially altering the intent of the clause, the parties shall
sever such clause from this Agreement and renegotiate in
good faith such other means to reflect their original intent.
Notwithstanding such severance, the parties shall enforce
the balance of this Agreement as if such severed clause
was never a part thereof.
Where there is any conflict between this Agreement and
any mandatory provision of a statute, such statute shall
prevail.
Where there is any conflict between this Agreement and
any provision in a statute, which expressly states that it is
subject to any contractual provision to the contrary, or
which may be altered or overridden by a contract, this
Agreement shall prevail.
Entire Agreement
This Agreement represents the entire agreement concerning the conditions upon which the Client may use the
Software. As such, it supersedes all previous agreements
or understandings, whether verbal or written, pertaining to
the same subject matter, including without limitation, any
proposals that Author-it may have furnished to the Client.
This Agreement overrides any other terms and conditions
in conflict therewith, including those on the Customer’s
purchase order, if any.
Author-it’s agents and representatives have no authority to
make any representations, statements, warranties, conditions or agreements that conflict with this Agreement.
Any such unauthorized representations, statements, warranties, conditions or agreements shall not bind Author-it
nor shall they form a part of an Agreement, unless the parties so agree in writing.
Interpretation
Certain clauses in this Agreement may prohibit a party
from doing a specific act or thing. In such case, such party shall not aid, abet or encourage a third party to do such
act or thing that such party could not do itself.
Where the context so requires, an obligation or right of the
Client shall mean an obligation or right of the relevant
subsidiary or affiliate of the Client. If the Client is entering into this Agreement on behalf of any affiliates or subsidiaries, the Client shall procure such affiliates and subsidiaries to use the Software in accordance with this
Agreement. The Client accepts liability for the acts or
24.3.
24.4.
25.
25.1.
26.
26.1.
26.2.
26.3.
27.
27.1.
27.2.
28.
28.1.
omissions of its affiliates and subsidiaries in breach of this
Agreement.
Author-it is not committing to provide any other products
and services except for such products and services as are
expressly stated in this Agreement, or any collateral
agreement signed by the parties. If in the future, Author-it
provides any other products and services, it shall do so by
separate quotation and always with the Client’s prior
agreement.
Wherever this Agreement imposes an obligation or confers a right upon Author-it, a person to whom Author-it
delegates authority pursuant to clause 14.1 may exercise
such right or perform such obligation for Author-it.
Compliance with Laws and Regulations
The Client shall comply with all applicable laws and
regulations in the countries where the Client intends to use
the Software.
Incorporation by Reference
Any document referred to in this Agreement shall be
deemed incorporated herein by such reference.
A reference to a document shall be deemed a reference to
the latest version of such document from time to time in
effect.
Any change in the name of a document incorporated by
reference shall not affect its enforceability provided it is
clear which new document was intended to supersede and
replace the document expressly mentioned herein
Notices
A party may deliver any notice required by this Agreement by hand. If a party delivers any notice by a recognised international air courier (e.g. FedEx, DHL, UPS),
such delivery shall be deemed equivalent to delivery by
hand. A party may send a notice to the other party at the
address referred to at the start of this Agreement or such
other address as the other party may designate in writing.
A party may send a notice by first class airmail post, facsimile transmission, e-mail or comparable means of communication.
The date of receipt of any notice delivered by hand shall
be the date upon which such notice was hand delivered to
the recipient. The date of receipt of any notice given by
airmail post shall be the 7th day after the sender mailed
the notice. Proof that the sender addressed the envelope
properly, paid the correct postage and did not receive the
notice back shall be sufficient evidence that the sender
gave notice. The date of receipt of any notice given by
facsimile transmission, e-mail or comparable means of
communication shall be the date of transmission of such
notice, provided: (a) the recipient acknowledges receipt;
or (b) the giver of such notice sends a confirming copy by
air mail post within 24 hours after transmission.
Governing Law
New Zealand law shall govern the interpretation, validity
and performance of the Agreement. The parties submit to
the jurisdiction of New Zealand courts in the event of a
dispute.
- End -
Page | 6
Author-it Software Corporation Ltd.
Westfield Albany, Level 3, 219 Don McKinnon Drive, Albany, Auckland City 0632, New Zealand
Telephone: +64 9 915 5070 Website: www.author-it.com
©2011 Author-it Software Corporation● All Rights Reserved
`