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 Limited’s latest Proposal or Agreement
(hereafter called “Proposal”) including all terms and conditions in the Proposal and accepts all
of the Terms and Conditions in The Licence. Read The Licence carefully before continuing. If you do not agree to The Licence you must stop using The Software immediately as ongoing use
will confirm your full agreement to The Licence. If you do not
agree to The Licence 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. It is the Licencee’s obligation to ensure that they have fully read, understood, acknowledged and agreed to The Licence.
These terms were last updated on 1 December 2014.
1. The Licence
Empower Marketing NZ Limited grants The Licencee a non-exclusive,
non-transferable, right to use The Software in accordance with The Licence. 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 is the subject of copyright, trade secrets and other
intellectual property laws. The Licencee shall not, during the use of The Software or at any time after the use of The Software, 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 Limited
provided to The Licencee is provided solely from Empower Marketing NZ Limited's
offices – either by phone or across the internet.
If The Licencee requests a meeting to occur at their
site then Empower Marketing NZ Limited unilaterally decides
whether this is suitable to Empower Marketing NZ Limited. If Empower Marketing NZ
Limited does agree to travel to provide face to face On Going Support on site The
Licencee will first agree to cover Empower Marketing NZ Limited's travel costs and
travel time involved on a charge up basis at Empower Marketing NZ Limited’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 Limited 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 Limited 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 Limited whether The Licencee believes he has used On Going Support
partially or not at all. Empower Marketing NZ Limited’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 Limited 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 Limited of the fact in writing
and The Licencee must receive an email from Empower Marketing NZ Limited 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 Limited will only undertake The Licencee’s
request for custom development to The Software where Empower Marketing NZ Limited
believes that a significant number of Empower Marketing NZ Limited’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 Limited – in the interests of all licencees using The Software – and
Empower Marketing NZ Limited’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 Limited 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
Limited 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 Limited.
The Licencee will always contact Empower Marketing NZ Limited 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 Limited and The Licencee will follow up these requests. Empower Marketing NZ Limited 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 Limited 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 and any other costs such as API costs, monthly by the due date
specified on any invoice sent to The Licencee by Empower Marketing NZ Limited. 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 Limited
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 Limited 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 The 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 Limited access to The Licencee’s system to remove The Software , and
The Licencee will immediately send Empower Marketing NZ Limited 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 Limited'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 Limited may cease On Going
Support partially or fully. Where The Software needs to be reconnected by
Empower Marketing NZ Limited all outstanding payments need to made in full and a
reconnection fee will be paid to Empower Marketing NZ Limited in the first instance.
The reconnection fee will contribute to Empower Marketing NZ Limited’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 Limited provides The Licencee outlined above at clause 3
- Empower Marketing NZ Limited 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 Limited’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 Limited licencees) first became a client Empower Marketing NZ
Limited 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 Limited is not able to advise the
Licencee that Empower Marketing NZ Limited 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 Limited will be carried out on a fixed quotation or
charge up hourly rate basis and paid for fully by The Licencee. Empower
Marketing NZ Limited’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 Limited to
the Licencee on a charge up hourly rate basis.
If The Licencee or Empower Marketing NZ Limited 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 The 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 The 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 The Licence shall be in
perpetuity and therefore survive the termination of The 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 Limited 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 Limited
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 Limited 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 Limited 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 Limited 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 Limited 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 The 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 The 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 Limited 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 Limited 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 Limited.
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 many clients include 3M, Netflix, Airbnb, Hertz, McDonalds, Lonely Planet, MYOB, Goodman Group, Vodafone, General Electric, 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 and elsewhere.
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 Limited 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 Limited has systems and processes planned to help prevent data loss, including system data back-ups,
but Empower Marketing NZ Limited 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 Limited does not warrant that the use of the Empower on the Cloud will be uninterrupted or error free.
Empower Marketing NZ Limited 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 the cause 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.
18. API
At an additional cost or costs, to those specified elsewhere in The Licence, Empower Marketing NZ Limited may make available an API to allow links to transfer data and information from another system into Empower on the Cloud and vice versa.
At Empower Marketing NZ Limited's sole discretion, Empower Marketing NZ Limited may place limits on the frequency of API use.
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 Limited 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 Limited.
19. Governing Law
The 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 The Licence.