Empower Software

Terms And Conditions

These Terms And Conditions (hereafter called "The Licence") is between you (hereafter called "The Licencee") and Empower Marketing NZ Limited. This software (including all media and documentation, help systems and databases) including current, past and future versions (hereafter called “The Software”) is licensed to The Licencee only, upon the condition that The Licencee has already agreed to Empower Marketing NZ Ltd’s latest Proposal (hereafter called “Proposal”) including all terms and conditions and accepts all of the Terms and Conditions in this Licence. Read these Terms and Conditions of The Licence carefully before continuing.  If you do not agree to these Terms and Conditions you must stop using The Software immediately as ongoing use will confirm your full agreement to The Licence and all Terms and Conditions.  If you do not agree to these Terms and Conditions then Empower Marketing NZ Limited will not license The Software to you. The Licencee has read The Licence and Proposal fully and acknowledges, understands, accepts and agrees to be bound by all of these Terms and Conditions. The Licencee understands, acknowledges, accepts and agrees that The Licence and Proposal forms a legally binding contract. The Licence and Proposal is the full contract between the parties and supersedes any previous implied or expressed representations, understandings, proposals or agreements.

Empower Marketing NZ Limited reserves the right to amend and update these terms periodically at any time, effective upon the placement of updated terms and Empower Marketing NZ Limited will advise the Licencee of these updated terms via front home page of Empower Software. It is the Licencee’s obligation to ensure that they have fully read, understood, acknowledged and agreed to the latest terms available on the front page of Empower Software. These terms were updated on 1/12/14.

1. The Licence

Empower Marketing NZ Ltd grants The Licencee a non-exclusive, non-transferable, right to use one registered copy of The Software at one business premise in accordance with these terms and conditions. The Licencee shall not exceed the number of users specified in the Proposal. If The Licencee wishes to add more users, The Licencee must request in writing a modification to The Licencee’s Licence and pay applicable Licence fees.

2. Copyright

The Software, Software Documentation and System are the subject of copyright, trade secrets and other intellectual property laws. The Licencee shall not, during the use of the Licence or at any time after the expiry or termination of this Licence, permit any act that infringes or may infringe that copyright, trade secret or other intellectual property. The Licencee expressly agrees that The Licencee shall not copy in any way or attempt to copy in any way The Software, Documentation or System wholly or in part.

This is a Licence to use The Software, Documentation and System. It is NOT an agreement for the sale of The Software, Documentation or System. The Licencee’s rights to use The Software, Documentation and System are specified in The Licence. The Licencee has no other rights whatsoever except as expressly granted to The Licencee in The Licence.

3. On Going Technical Support

The sole form of on going technical support, assistance and help (hereafter called On Going Support) provided by Empower Marketing NZ Ltd provided to The Licencee is provided solely from Empower Marketing NZ Ltds offices – either by phone or across the internet.

If The Licencee requests a meeting to occur at their site then Empower Marketing NZ Ltd unilaterally decides whether this is suitable to Empower Marketing NZ Ltd. If Empower Marketing NZ Ltd does agree to travel to provide face to face On Going Support on site The Licencee will first agree to cover Empower Marketing NZ Ltd's travel costs and travel time involved on a charge up basis at Empower Marketing NZ Ltd’s hourly rate current at time of visit.

On Going Support is limited to the following;

  • 3.1 On going development of and releases of Software to The Licencee and all Empower licencees (new versions released at times each quarter and at least twice each year)
  • 3.2 On going development of documentation
  • 3.3 On going development of Help Systems within the Software for The Licencee and all Empower licencees (updated regularly and available on line)
  • 3.4 Fixes of bugs in The Software – bugs which have primarily occurred from new developments. The Licencee and all Empower licencees using The Software benefit from all bug fixes in the form of new releases of software with these bug fixes effected Secondary area of Support Provided by Empower Marketing NZ Ltd to The Licencee
  • 3.5 On going training and advice to The Licencee via phone or via the internet.

On Going Support payments are payable monthly by The Licencee to Empower Marketing NZ Ltd whether The Licencee has used The Software partially or not at all. On Going Support payments are payable monthly by The Licencee to Empower Marketing NZ Ltd whether The Licencee believes he has used On Going Support partially or not at all. Empower Marketing NZ Ltd’s sole On Going Support option on offer and sole option provided to The Licencee is all On Going Support outlined in Clauses 3.1, 3.2, 3.3, 3.4, and 3.5 of The Licence. Empower Marketing NZ Ltd will not split or separate On Going Support or payments in any way. The Licencee will not request that this On Going Support or payments be split or separated in any way.

The Licencee is not entitled to use The Software fully or partially and will not use The Software fully or partially if On Going Support payments are not paid monthly in full. The Licencee is not entitled to any form of On Going Support whilst not paying the full On Going Support payments or whilst any On Going Support payments monthly are late.

The Licencee agrees to pay On Going Support payments for a minimum of 48 months.

Should The Licencee wish to cease paying On Going Support payments after the first 48 months The Licencee must advise Empower Marketing NZ Ltd of the fact in writing and The Licencee must receive an email from Empower Marketing NZ Ltd confirming receipt of The Licencee’s instruction to cease using The Software.

If The Licencee ceases using The Software or ceases paying On Going Support for any period of time the only way in which The Licencee can use The Software again in the future is to purchase a new and additional Empower licence in the future at full price.

The Licencee may request custom developments of The Software to suit their requirements. Empower Marketing NZ Ltd will only undertake The Licencee’s request for custom development to The Software where Empower Marketing NZ Ltd believes that a significant number of Empower Marketing NZ Ltd’s licencees will benefit from the particular custom development. All decisions regarding all requested custom developments are made solely and unilaterally by Empower Marketing NZ Ltd – in the interests of all licencees using The Software – and Empower Marketing NZ Ltd’s decision is final and will not be contested by The Licencee.

Should The Licencee request custom developments to the functionality or reporting in The Software then Empower Marketing NZ Ltd may provide The Licencee with an estimate or a quotation for the custom development and there will always be a charge for the custom development. Should Empower Marketing NZ Ltd ever elect to undertake any custom development for The Licencee at no charge it will only ever be done so in a time frame and schedule suitable to Empower Marketing NZ Ltd.

The Licencee will always contact Empower Marketing NZ Ltd and schedule in advance an agreed time for any On Going Support required.

When The Licencee requests bug fixes in The Software these requests will always be in writing by email to Empower Marketing NZ Ltd and The Licencee will follow up these requests. Empower Marketing NZ Ltd releases one management and one factory system to The Licencee every upgrade which is approximately every quarter.

4. Price of the Licence

The Licencee may or may not start with 10 users which are monitored and tracked on The Software and in time increase this to cope with increased staff being tracked on The Software. In which case additional Licences has to be purchased to monitor and track the additional users and payments of monthly On Going Support payments monthly also increases. A current price list is available from Empower Marketing NZ Ltd on request which confirms the current price of user numbers, additional user numbers and the respective On Going Support payments monthly.

5. Payments by The Licencee

To use The Software, The Licencee must have paid all Software Licence payments and all On Going Support payments monthly by the due date specified on any invoice sent to The Licencee by Empower Marketing NZ Ltd. If The Licencee does not pay any Software Licence payments or On Going Support payments monthly by the due date specified on any such invoice, then any subsequent payments become immediately due at the Standard Price.

Should The Licencee not pay any Software Licence payments or On Going Support payments monthly by the due date specified on any invoice then Empower Marketing NZ Ltd may choose to use a third party to collect such overdue fees. Should this occur The Licencee agrees to pay all additional charges charged by the third party, including all expenses and legal and collection costs incurred as a result of attempting to collect such overdue fees, and all costs and expenses incurred by Empower Marketing NZ Ltd in instructing a solicitor or debt collection agency to recover such overdue fees. Should The Licencee not pay any Software Licence payments or On Going Support payments on the date due, Empower Marketing NZ Limited may permanently revoke this Licence immediately and without notice and in which case The Licencee shall stop using The Software immediately and without delay. Upon request by Empower Marketing NZ Limited The Licencee will allow Empower Marketing NZ Ltd access to The Licencee’s system to remove The Software , and The Licencee will immediately send Empower Marketing NZ Ltd all Documentation and System information to Empower Marketing NZ Limited by traceable courier service. Irrespective of communications or lack of communications, should The Licencee not pay On Going Support payments monthly for 2 consecutive months, no notice and communications are necessary and The Software Licence will have ceased entirely and be void.

The Licencee will pay the Standard Price outlined in the Proposal on all outstanding invoices. The Licencee will also pay an additional 2% interest per month on all Standard Prices on all outstanding invoices. This 2% per month will contribute to Empower Marketing NZ Ltd's costs involved in financing and administering.

The Licencee’s late payments. If any of payments are more than 1 month late Empower Marketing NZ Ltd may cease On Going Support partially or fully. Where The Software needs to be reconnected by Empower Marketing NZ Ltd all outstanding payments need to made in full and a reconnection fee will be paid to Empower Marketing NZ Ltd in the first instance. The reconnection fee will contribute to Empower Marketing NZ Ltd’s time and costs involved in reconnection.

6. The Licencee ceases paying On Going Support payments monthly

The Licencee acknowledges the following

  • The minimum initial period of On Going Support payment is 48 months
  • All On Going Support that Empower Marketing NZ Ltd provides The Licencee outlined above at clause  3
  • Empower Marketing NZ Ltd continues to provide On Going Support under clauses 3.1, 3.2. and 3.3 whether The Licencee is using The Software or not - and that 100% of Empower Marketing NZ Ltd’s business and overhead costs continue whether The Licencee is using The Software or not
  • Empower Marketing has a continuous and on going commitment to provide The Licencee with On Going Support outlined at clauses 3.1, 3.2, 3.3, 3.4, and 3.5 of The Licence
  • When The Licencee (and other Empower Marketing NZ Ltd licencees) first became a client Empower Marketing NZ Ltd committed significant staffing and other overhead costs to gear up for and to be able to provide The Licencee (and other licencees) with the necessary On Going Support – and that Empower Marketing NZ Ltd is not able to advise the Licencee that Empower Marketing NZ Ltd wishes to stop providing On Going Support at any time for any given period.
7. Any Link Required

A link is a custom developed interface to transfer information from The Software to other software used by The Licencee, or vice versa. Any link and its On Going Support is a separate product and separate agreement and separate licence to The Licence.

The Licencee is fully responsible for writing the specification for the link and then learning, trialling, using, and testing the link.

The development of any link by Empower Marketing NZ Ltd will be carried out on a fixed quotation or charge up hourly rate basis and paid for fully by The Licencee. Empower Marketing NZ Ltd’s price and work involved in the development of the link extends through only to the time which the link works in the first instance at the Licencee’s business.

Any amendments requested by The Licencee to the link and any maintenance or support of the link undertaken after the link has worked in the first instance are carried out and charged by Empower Marketing NZ Ltd to the Licencee on a charge up hourly rate basis.

If The Licencee or Empower Marketing NZ Ltd decide that at any time the link is not working as envisaged by The Licence the agreed resolution is that the Licencee will either develop a new link “in house” or The Licencee will engage another firm to develop a new link at the Licencee’s cost.

8. Documentation

This Licence extends to The Software, Documentation and System, whether in electronic or print format. The documentation may not be copied, modified or used wholly or in part in any way not contemplated or authorised in writing by this Licence.

9. The Licencee’s Obligations

The Licencee agrees NOT to:

  • 9.1 Copy, reproduce, translate, adapt, vary or modify, or attempt to copy, reproduce, translate, adapt, vary or modify, The Software wholly or in part;
  • 9.2 Disassemble, decompile or unlock, reverse translate, reverse engineer, or in any manner decode, or attempt to disassemble, decompile or unlock, reverse translate, reverse engineer or in any manner decode, The Software for any reason whatsoever;
  • 9.3 Provide or otherwise make available The Software, and / or Documentation and / or System wholly or in part in any form to any person outside The Licencee’s organisation and sole business premises;
  • 9.4 Gift, rent, lend, resell, lease or in any way provide The Software and / or, Documentation and / or System, wholly or in part, to any other person, company or premises;
  • 9.5 Transfer The Software and / or Documentation and or System to any other person or company under any circumstances;
  • 9.6 Bypass or circumvent or attempt to bypass or circumvent any security procedures applicable to The Software; and
  • 9.7 Take any action that would cause injury or possibly cause injury to Empower Marketing NZ Limited's rights in The Software or that would deprive or possibly deprive Empower Marketing NZ Limited of any potential income from any potential sales or any potential fees.

The Licencee shall employ its Best Endeavours to supervise and control the use of The Software in accordance with the terms of this Licence. The Licencee shall employ its Best Endeavours to ensure that The Licencee’s employees, subcontractors or agents are made aware of all the terms of this Licence Agreement and fully comply therewith. The Licencee shall employ its Best Endeavours to maintain safe custody of The Software, and / or Documentation and / or System. If the Licencee witnesses or in any way suspects that any person has or intends to breech or possibly breech any of Empower Marketing NZ Limited's rights the Licencee will immediately advise Empower Marketing NZ Limited in writing. The Software, and / or Documentation and / or System contain highly confidential, unpublished information protected by copyright, trade secret and other intellectual property laws. The Licencee may not disclose The Software, Documentation or System, wholly or in part, to any other person or company, or remove or alter any copyright notices from the media or documentation.

The Licencee shall employ its Best Endeavours to prevent any unauthorised use, copying or disclosure of The Software, Documentation or System wholly or in part. The Licencee’s obligations in this Licence shall be in perpetuity and therefore survive the termination of this Licence. The Licencee will contact other licencees using Empower Software to discuss and qualify productivity gains achieved by other Empower licencees. The Licencee is fully and solely responsible for and will undertake their Best Endeavours in assessing and estimating their own potential productivity gains. The Licencee acknowledges that the use of The Software is fully and solely in their hands and control and therefore potential and actual productivity gains are solely and fully in their hands and control. The Licencee will not under any circumstance pursue Empower Marketing NZ Ltd for not realising potential productivity gains.

10. Client Data and Database Maintenance

Periodically and regularly The Software may have bugs which may cause errors in The Licencee’s data. The Licencee is solely and fully responsible for monitoring The Software screens, reports and data daily to ensure that any bugs in The Software are not causing significant errors in The Licencee’s data. The Licencee will advise Empower Marketing NZ Ltd in writing immediately any bugs or potential bugs are noticed – in this way data errors in the Licencee’s data will be minimized for The Licencee because incorrect data will be created over a short or shorter time frame. Empower Marketing NZ Ltd does not offer to or undertake any form of data fix or database fix for The Licencee. If the Licencee requests and only if Empower Marketing NZ Ltd agrees in writing a database fix will be carried out for The Licencee such a fix will be undertaken on a charge up hourly rate basis and The Licencee will spend the same time full time across the web and remote assist assisting Empower Marketing NZ Ltd in identifying data errors and carrying out data fixes.

11. Retraining of The Licencee’s Management

Training of management at implementation time is included in the price of the Licence. Any training management at any date after implementation date is retraining. Any retraining of management is undertaken for The Licencee by Empower Marketing NZ Ltd on a charge up hourly rate basis.

12. Limited Warranty

Empower Marketing NZ Limited does not in any way imply or warrant that The Software, and / or Documentation and / or System will satisfy any of The Licencee’s requirements. Empower Marketing NZ Limited gives no performance warranties whatsoever. Empower Marketing NZ Limited excludes, and expressly disclaims, all express and implied warranties of merchantability or fitness for purpose. Empower Marketing NZ Limited disclaims all liability, whether in contract or tort, for any loss or damage arising from The Licencee’s use of The Software, and / or Documentation and / or System. Such disclaimer includes, but is not limited to, direct, indirect, special and consequential damages including loss of profit, loss of business, loss of revenue, loss of goodwill, loss of production, loss of product, losses resulting from downtime, losses resulting from system crashes, loss of data, or losses resulting from installation, implementation or management of The Software, or failure to achieve anticipated savings or production efficiencies. Empower Marketing NZ Limited shall not be responsible to The Licencee for any costs or damages whatsoever incurred as a result of any bugs, errors or defects. Empower Marketing NZ Limited does not warrant that The Software is bug, error or defect free and the existence of such bugs, errors or defects shall not constitute a breach of this Licence. Empower Marketing NZ Limited gives no performance warranties whatsoever relating to The Software or any service and support it provides. Empower Marketing NZ Limited excludes, and expressly disclaims, all express and implied warranties relating to The Software or any service and support it provides. Bugs, errors or defects may arise in The Software for a multitude of reasons including the Licencee's particular hardware (including age, make, model and power), the manner in which any network is set up, the computer configuration, current software used, previous software installed, and actual use of the computer system. The Licencee acknowledges and agrees that the speed at which The Software and all other software operates is directly impacted and compromised by factors including but not limited to the Licencee's particular hardware (including age, make, model and power), network set up, computer configuration, current software used, previous software installed, and their actual use of their computer system. The Licencee acknowledges and agrees that The Software and all other software contains bugs, errors or defects. Empower Marketing NZ Limited will decide unilaterally as to whether it will provide any service or support to The Licencee.

Empower Marketing NZ Limited will replace The Software at no charge subject to notification of the any defect within 90 days of the date that The Licencee first uses The Software. Empower Marketing NZ Limited shall either replace The Software or give The Licencee a full refund for The Software, at Empower Marketing NZ Limited's sole discretion, which The Licencee will not dispute or contest in any way. Except for the limited warranty described above, there are no other warranties whatsoever, either expressed or implied, concerning The Software, Documentation or System. The Software is continually evolving and being developed and consequently The Software is licenced to The Licencee in an “as is where is condition”. Empower Marketing NZ Limited's maximum liability to The Licencee shall not, under any circumstance, exceed the purchase price that The Licencee has paid to Empower Marketing NZ Limited in respect solely to The Software Licence. Some jurisdictions do not allow the exclusion of certain implied warranties or conditions, so the above exclusions may not apply to The Licencee. This Licence does not exclude any implied warranties or conditions that may not under applicable law be excluded. This Licence gives The Licencee specific legal rights, and is in addition to any other legal rights that The Licencee may have under the laws of The Licencee’s jurisdiction. This Licence does not affect The Licencee’s statutory rights.

13. Services Excluded

The rental or purchase price of The Software Licence does not include any service or support and cost associated with any and all of the following:

  • 13.1 Factory and Management devices, wiring and any other hardware required
  • 13.2 Networking services
  • 13.3 All travel and accommodation costs associated with installation and On Going Support
  • 13.4 The Software configuration and preference setting
  • 13.5 Retraining of The Licencee’s staff;
  • 13.6 On Going Support detailed in clauses 3.1, 3.2, 3.3, 3.4, and 3.5 of The Licence
  • 13.7 Additional Management and Factory Systems required (over and above the standard package)
14. Term of Licence

The Licencee may either rent or purchase the Licence. In the case of renting the Licence to use The Software, Documentation and System then the Term of the Licence will be for the period that the Licencee has paid the Licence fees. Immediately the Licencee ceases paying rental, which includes On Going Support payments monthly, The Licence will cease and become entirely void. In the case of purchasing the Licence to use The Software, Documentation, and System then the term of this Licence shall be only whilst The Licencee pays On Going Support payments monthly and subject to termination by Empower Marketing NZ Limited in the event that for any reason whatsoever Empower Marketing NZ Limited believes that The Licencee has breached any term herein or The Licencee has failed to promptly pay any applicable fees associated with The Software, Documentation and System. Immediately the Licencee ceases paying On Going Support payments monthly, The Licence will cease and become entirely void. Upon Empower Marketing NZ Limited advising the Licencee that The Licence has been terminated, The Licencee shall stop using The Software and allow Empower Marketing NZ Ltd access to The Licencees system to remove The Software without delay and return The Software and Documentation by traceable courier to Empower Marketing NZ Limited.

15. Indemnity

The Licencee indemnifies Empower Marketing NZ Ltd against all claims, costs, damage and loss arising from the Licencee’s breach of any of these Terms or any obligation the Licencee may have to Empower Marketing NZ Ltd.

16. Responsibility

The Licencee acknowledges that Empower Marketing NZ ltd has no responsibility to any person other than the Licencee and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Licencee.

17. Cloud Software

The Cloud service provider that Empower Marketing NZ Limited is using is Amazon Web Services (AWS). AWS’s clients include: Xero, Netflix, airbnb, BMW, Lonely planet, Amazon, General Electrics, Nasdaq, Suncorp  and Qantas. AWS has server and data centres based in Sydney, Australia. AWS also has data centres, that it backs up data to, in both North America and Europe. For information including but limited to Amazons back up procedures and response times go to www.aws.amazon.com. Empower Marketing NZ Limited has both non cloud and cloud software available to the Licencee. Empower Marketing NZ Limited strongly recommends that the Licencee seeks expert advice on the benefits and risks of using both Empower non cloud and cloud based software. The Licencee decides which Empower software option to use solely on the features and benefits it brings the Licencee’s business. The cloud based Empower Software option is referred to hereafter as Empower on the Cloud. The Licencee must ensure that all usernames and passwords required to access the Empower on the Cloud have a very high degree of complexity and security and are kept highly secure and confidential. The Licencee must immediately notify Empower Marketing NZ Ltd in writing, and receive confirmation from Empower Marketing NZ Limited in writing, of any suspected or actual unauthorised use of the Licencee’s password(s), or any other persons password(s), or any other suspected or actual breach of security The Licencee must: not attempt to undermine the security or integrity of Empower Marketing NZ Limited’s computing systems, not use, or misuse, Empower on the Cloud in any way which may impair the functionality of the Empower on the Cloud or its website, or other systems used to deliver the services or impair the ability of any other user to use the Empower on the Cloud or its website Empower Marketing NZ Ltd has systems and processes planned to help prevent data loss, including system data back-ups, but Empower Marketing NZ Ltd does not make any form of guarantee whatsoever that there will be no loss of data. Empower Marketing NZ ltd expressly excludes liability for any loss of data no matter how caused. The Licencee must maintain copies of all data inputted into Empower on the Cloud on the Licencee’s site and daily back ups taken off site for risks such as fire and flooding etc . The Licencee can periodically instruct Empower Marketing NZ Limited to instruct Amazon to take a copy of all the Licencees data and store on external hard drive or memory device and Empower Marketing NZ Limited will do so at Empower Marketing NZ Limits cost. Any and all time and costs relating to any Licencee’s data restoration is solely and fully the Licencee’s. Empower Marketing NZ Limited strongly recommends that the Licencee takes out comprehensive insurance to cover the costs of any data loss including but not limited to: direct costs, indirect costs or consequential losses. The provision of, access to, and use of, Empower on the Cloud is on an "as is" basis and solely and fully at the Licencee’s own risk. Empower Marketing NZ Ltd does not warrant that the use of the Empower on the Cloud will be uninterrupted or error free. Empower Marketing NZ Ltd advises that from time to time access will be interrupted and prevented due to maintenance, issues and the unpredictability of but not limited to the following: the internet, public telephone services, computer networks, and cloud data storage. No matter how caused Empower Marketing NZ Limited is not responsible for any such interference or prevention of the Licencee’s access or use of the Empower on the Cloud. At an additional cost or costs, Empower may make available an API to allow links to transfer data and information from another system into Empower on the Cloud and vice versa. The Licencee must monitor all data and information inputs and outputs daily and continuously throughout the day to ensure the links and API are working 100% correctly and this is the Licencees sole and full responsibility. The provision of, access to, and use of, API within Empower on the Cloud is on an "as is" basis and solely and fully at the Licencee’s own risk. Empower Marketing NZ Ltd does not warrant that the use of the API within Empower on the Cloud will be issue, fault or bug free. Empower Marketing NZ Limited strongly recommends that the Licencee takes out comprehensive insurance to cover the costs of any data or information errors resulting from use of the API including but not limited to: direct costs, indirect costs or consequential losses. In the case of technical problems the Licencee must make all reasonable efforts with suitably qualified person to investigate and diagnose problems before contacting Empower Marketing NZ Ltd.

18. Governing Law

This Licence shall be governed by, and construed in accordance with, the laws of New Zealand whose courts shall have jurisdiction over all disputes that may arise in respect to this Licence.