Table Of Contents
Table Of Contents

End User License

What we do for you

Let’s start with what we have to do in order to support you using our Product, then we will talk about what your responsibilities are, before getting into some of the boring contract stuff that the lawyers make us put in at the very bottom.

Product will be reasonably available for you to use

You will be able to access and use the Product you have signed up for in the ways that we have described on this Website https://docs.agiledata.io

Availability of Product

We will do all things that are reasonable for a commercial firm to make the Product available 24 hours a day 7 days a week - except for the following; a. Planned downtime that we have notified you about; or b. Downtime caused by unusual circumstances beyond our control like earthquakes, civil unrest, terror attacks, pandemics, strikes, Internet Service Provider failure or denial of service attack.

Whatever the cause of any downtime, access issues or data loss, your only recourse is to discontinue using our services.

Security of Data

We will protect the security and integrity of the Customer Data you have supplied to the Product by taking steps that are appropriate for the type of Product and service we offer. However, we can’t plan for everything, and data loss is an unavoidable risk when using any technology. You’re responsible for maintaining copies of your data that has been collected into our Product.

Export of Your Data at end of the agreement

When the period you have signed up and paid for comes to an end, if you don’t sign up for a new period, this agreement will have come to an end. We will keep your Customer Data available for 90 days after the agreement comes to an end so that you can export or download it. Your Customer Data will not be available for you to download after that 90 day period.

Warranties

Your security and the confidentiality of your data is important to us. We stand behind our Product, so right up front we will let you know that we do warrant our work for you in the following ways;

We warrant that during an applicable Licence Period: a. We will use reasonable endeavours to ensure we use technical safeguards for protection of the security, confidentiality and integrity of Customer Data, b. We will not materially decrease the overall security of the Product, c. Our product will perform materially in accordance with the applicable Product Documentation, and d. We won’t materially decrease the overall functionality of the Product.

For any breach of these warranties above, your exclusive remedies are those described in these terms. We don’t give you any other warranty that is not described here in this clause.

You can do the following with our products and services

You will be able to access and use the Product, and use the related Support Services, as ordered and paid for by you, for the Period. Your agents, contractors and employees will also be able to use the Products you have signed up for - but only for any work they are doing for your internal business purposes.

Trials of our products

Because we want you to love our products as much as we do, we are happy to offer trial usage by agreement as per below. a. You may use any Product, or any feature, that has not yet been bought (at no charge) for trial for a period of up to 14 days. You have to stop using the product after this time b. If you use our product on a trial basis then we will support you where we can to help you use our product in this way, but the product is provided ‘as is’ and we won’t have technical support available and can’t guarantee the product in any way. c. Our other terms such as indemnities, warranties, and any liability whatsoever doesn’t apply to trial use. If there is any liability that has to apply, it shall not exceed $1000.00.

Our Fair Use Policy

There are some ways that you can use our product that may affect the costs back to us in some unforeseen ways. This is why we have the following Fair Use Policy so that we are all clear how to work with each other in the best way possible.

  1. You may access the Product under this agreement by agreeing to these terms, but also by agreeing to Contractual Usage Limits. These Contractual Usage Limits are set to ensure that the way you access and use the Product doesn’t increase the costs to us of providing this Product in an unreasonable way. Because the pricing of services to us can change, and the use you make of the product can change, our Contractual Usage Limits (and this Fair Use Policy) might change sometimes too.

  2. We can change the Fair Use policy at any time if we choose to, and we will make it available to You.

  3. If you breach the Fair Use Policy or Contractual Usage Limits we will stop your access to the Product to ensure no further excess charges are incurred, but we will tell you as soon as we can that we have done this, and will work with you to comply with the Contractual Usage Limits so you can get access to the Product as soon as possible.

  4. If we can do so reasonably, we will tell you that you are in breach of the Contractual Usage Limits before we stop your access to the Product.

  5. You will not be refunded any fees for the period of time you are unable to access the product if this is because of your breach of the Fair Use Policy.

What you agree to do

Lawful and proper use

You will make sure that any users who access the system under your account will do all of the following things;

  1. You and your users will make sure that any Customer Data that you use in the system or put into the system has been collected in ways that are lawful.

  2. You will only let users access your account with us through the log-in credentials you create through our website. You will make sure that unauthorised people can’t access your account with us. If you find out that anyone has accessed your account with us without your consent you will let us know straight away.

  3. You will always use this product in a way that complies with all law and regulation that applies to your use of the product.

  4. You will comply with any restrictions set out in the Documentation https://docs.agiledata.io

Your Customer Data

You will need to make sure that your Customer Data has been collected correctly and is accurate as we are not responsible to check this for you in any way.

When you enter or upload your data into our services, we don’t own that data but you grant us a licence to use, copy, transmit, store, analyse, and back up all data you submit to us through our services, including personal data of yourself and others, to: enable you to use our services; allow us to improve, develop and protect our services; create new services; and communicate with you about your subscription.

You also agree not to use any free-form fields in any of the systems or services to store credit card details or bank account details.

Third Party Applications

You will comply with the terms of any applications that you use to access or use with this product even if that application is supplied by someone else (or is one you have developed).

Payment (Assume online will be by Credit card payment? Let us know if not - also would be good to know if there is a standard period you charge for? Or a billing page that can be linked to that sets out the different billing options)

  1. You must pay for all the Product that you order in advance for the selected Licence Period.

  2. You will not be able to use the Product until payment for it has been processed.

  3. The Payment is not refundable if you do not use all or any of the Product during the Licence Period.

  4. If for any reason at all you owe us money for use of the Product, we may stop you from accessing the Product. We will try to notify you that we intend to stop your access of the Product, and give you up to 10 days to pay the overdue sum.

  5. If you have genuinely and reasonably disputed the payment that is overdue to us and you are working with us in good faith to resolve that dispute, we won’t stop you from accessing the Product.

  6. Except as expressly agreed between us in writing, renewal of promotional or one-time priced licences will be at our applicable price in effect at the time of the applicable renewal.

You may not do any of the following

Like all software providers, there are some definite No-Nos, that we can’t allow with our Product. This is for both your and our protection, and are all the usual things you’ll be used to for products and services such as ours. There should be no surprises in the below for you.

  1. Provide access to the Product to anyone except as set out above. This includes (but is not limited to) offering a Service to other people where you provide access to the Product.

  2. Let the people who can legitimately have access to the Product through your access codes, access the Product in a way that is different to the way you have agreed they will access it. This may mean that they could use the product without being detected by us, or in any other way lets those people use the Product in a way that gets around the terms of this agreement about numbers of users at one time.

  3. Use the Product to store or transmit any illegal material, or material that could breach other people’s legal rights.

  4. Attempt to gain unauthorised access to the Product or its related systems or networks

  5. Modify or copy any part of the Product unless the law allows you to do it, and then you may do that only to the extent the law allows.

  6. attempt to gain unauthorised access to any Product or its related systems or networks,

  7. permit access or use of any Product in a way that tries to get around any of the terms, a Contractual Usage Limit, or use any Software to access or use any of our intellectual property except as we’ve allowed for here,

  8. frame or mirror any part of any product, other than framing on your own intranets or otherwise for your own use,

  9. disclose results of any benchmark tests or monitor the availability, performance, or functions in order to compete with us

  10. except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Product or access it to build a competitive product or service, or determine whether the Product is within the scope of any patent.

  11. our product may contain or require the use of third party technology that is provided with the product. We therefore may tell you in our Product Documentation about certain rules that therefore apply in connection with those other products.

What will happen if you break any of the terms?

Because breaking these terms could threaten the security, integrity or availability of AgileData, we might decide to immediately stop your access to the Product or any Services. If we do this, we will try to give you some notice before we stop access if it is reasonable in the circumstances. If we give you notice, and you are able to fix the problem caused, we might choose not to stop your access to the product.

When will the agreement end?

Mostly, this Agreement will end if all the Subscription Periods you have signed up and paid for have ended, and you don’t wish to order any more Subscription Periods.

This Agreement will also come to an end if; i. Either we or you breach any of these terms, and the breach is Material, a big one. This means a breach of a term that we would both have seen to be so important, that the contract should not have to continue if that term is breached. ii. Or, a sustained and repeated breach of a term that would not be Material if only breached once; and iii. The other person tells the party who has committed the breach in writing what the breach is, what must be done to fix it, and what reasonable period of time it must be fixed in; and iv. The person in breach does not fix the breach in the time stated.

This Agreement will also come to an end if one person goes into bankruptcy or becomes insolvent, and the other person sends a written notice terminating the Agreement.

Let’s talk – Dispute Resolution

Before we get into the formal stuff, remember if there is an issue between us, let’s talk about it first.

If we can’t resolve it by talking at the operational level, let’s get our bigwigs involved. If that still doesn’t work we should consider using a mediation service. Court should be a last resort unless the matter is urgent.

Intellectual Property, Confidential Information, Indemnities, and Liabilities

Now we are about to get into the serious stuff about how to treat each other’s “secrets” (confidential information), who owns what, how we will protect each other if things go really wrong (indemnities), and what rights do we have in case those things go wrong (liability).

Confidential information

Confidentiality is important to us, as it is to you and your own customers, for this reason we’ve set out the standard rules that apply when dealing with something as important as this.

  1. Confidential Information belonging to both of us includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either of us to each other.

b. However, Confidential Information does not include any information that: i. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, ii. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, iii. is received from a third party without breach of any obligation owed to the Disclosing Party, or iv. was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Supplier services. c. As between both of us, each of us retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: i. not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and ii. except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. d. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

Intellectual Property

We need to agree up front who owns what and how that will work.

  1. We and our licensors reserve all of their right, title and interest in and to the Software and Product, including all of their related intellectual property rights. No rights are granted to you other than what we say in this agreement.

  2. You have the right to access and use applicable Products subject to these terms and the Product Documentation.

  3. You grant to us a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into our services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your users relating to the operation of our products.

Mutual Indemnification

How we will protect each other in case the worst case things happen. a. We will defend you against any claim, demand, suit or proceeding made or brought against us by a third party alleging that any Software infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against You, provided you i. promptly gives us written notice of the Claim Against You, ii. gives us sole control of the defence and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases You of all liability), and iii. gives us all reasonable assistance, at our expense. b. If we receive information about an infringement or misappropriation claim related to a Software, we may in our discretion and at no cost to you i. modify the Software so that they are no longer claimed to infringe or misappropriate, without breaching our warranties under the warranties outlined above, ii. obtain a license for your continued use of that Software in accordance with this Agreement, or iii. terminate your licences for that Software upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated licences. c. The above defence and indemnification obligations do not apply if i. the allegation does not state with specificity that the Software are the basis of the Claim Against You; ii. a Claim Against You arises from the use or combination of the Software or any part thereof with software, hardware, data, or processes not provided by Us, if the Software or use thereof would not infringe without such combination; iii. a Claim Against You arises from Software under an Order Form for which there is no charge or is a Trial use; iv. or a Claim against You arises from Software, a Non-Supplier Application or your breach of this Agreement, the Product Documentation or applicable Order Forms. d. You will defend us, and our associated entities against any claim, demand, suit or proceeding made or brought against us by a third party alleging i. that any Customer Data or your use of Customer Data with the Software is in breach of the law, ii. a Non-Supplier Application provided by you has been used outside the terms of any licence, or iii. the combination of a Non-Supplier Application provided by you and used with the Software, infringes or misappropriates such third party’s intellectual property rights, or arising from your use of the Software in an unlawful manner or in violation of the Agreement, the Product Documentation, or Order Form (each a “Claim Against Us”), and will indemnify us from any damages, legal fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Us, provided we promptly gives you written notice of the Claim Against Us, gives you sole control of the defence and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and gives you all reasonable assistance, at your expense.

The above defence and indemnification obligations do not apply if a Claim Against Us arises from our breach of this Agreement.

This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

The highest amount either of us have to pay if things go wrong

We are a small company, so we have to set realistic limits as to what we can and will pay if we breach this agreement. We think you’ll find them similar or better to what some of the bigger players provide. a. In no event shall the aggregate liability of either of us, arising out of or related to this Agreement exceed the total amount paid by you for the services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit your payment obligations. b. In no event will either of us have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if either of us have been advised of the possibility of such damages or if a either of our remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

Boring contract stuff our lawyers make us put in at the bottom – aka General Provisions

Entire Agreement and Order of Precedence.

This Agreement is the entire agreement between you and us regarding your use of our products and supersedes all prior agreements or representations about the Product or our Services whether in writing or verbal.

We agree that any term or condition stated in anything before this is void.

In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) any variation to these terms made in writing and agreed between us, (2) this Agreement, and (3) the Product Documentation.

Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

Relationship of the Parties.

We are all independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each of us will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

Third-Party Beneficiaries.

There are no third-party beneficiaries under this Agreement.

Waiver.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld).

Notices.

Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon i. personal delivery, ii. the second business day after mailing, or iii. except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. iv. Billing-related notices to Buyer will be addressed to the relevant billing contact designated by Buyer. All other notices to Buyer will be addressed to the relevant Software system administrator designated by Buyer.

Agreement to Governing Law and Jurisdiction.

This Agreement will be governed by the exclusive jurisdiction of the New Zealand Courts and New Zealand law will apply.

Export limitations:

You must not use our services in violation of any export or trade embargo laws that apply to you.

Excluded terms:

The terms of the United Nations Convention on Contracts for the Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) do not apply to these terms.

Events outside our control:

We will do our best to keep things going, but we can’t control everything. Therefore we aren’t liable to you for any failure or delay in performance of any of our obligations under these terms arising out of any event or circumstance beyond our reasonable control.

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