This agreement is between Nod Limited (Nod), and New Zealand Bus Limited (Customer).
Software-as-a-Service. This agreement provides Customer access and usage of proprietary software as a service as specified in the Service Level Agreement. Nod will provide this functionality through the Internet within a hosted server environment, web browser application interface, or other Nod approved interface under the terms below (Service).
a. Customer Owned Data. All data uploaded by Customer and collected by the Licensed Software (defined below) remains the sole property of Customer. Customer grants Nod the right to use, store and modify the Customer Data solely for purposes of Nod performing the Services under this agreement. Customer hereby warrants to Nod that it either owns, or is a licensee, of the Customer Data and has the full requisite power and authority to grant Nod such usage rights in the Customer Data and that there are no additional consents or approvals required for granting such usage rights. During the term of this agreement.
b. Contractor Access and Usage. Customer may authorize its employees, service providers, and other third parties to access the Services with user credentials, which access must be for the sole benefit of Customer and in compliance with this agreement. Customer is responsible for such representatives’ compliance with this agreement.
c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Nod promptly of any such unauthorized access; and (iv) may use the Service only in accordance with applicable law.
d. Nod Support. Nod provides customer support for the Service under the terms of Nod's Customer Support Agreement (Support).
Nod DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE, and Access to the website, MAY BE INTERRUPTED OR CONTAIN AN ERROR. WHILE Nod TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, Nod DOES NOT GUARANTEE THAT THE SERVICE AND THE ACCESS TO THE WEBSITE CANNOT BE COMPROMISED.NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
Certain supported third-party web services or technology that the Service integrates with may be made available within the Service, if Customer has an account and agreement with the applicable third party. Nod has no liability regarding those web services or technology, and Customer’s agreement with that third-party solely governs Customer’s access and usage of that web service or technology.
Customer must pay all fees as specified on the order, if not specified then payment is due upon receipt of an invoice. Customer is responsible for the payment of all sales, use, GST and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. If Customer does not pay the amounts due within 10 days of the due date, Nod may suspend or terminate the Service. In addition, Customer may be responsible for any additional charges related to the collection of outstanding amounts.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Nod’s Confidential Information includes without limitation the Service and Licensed Software (including without limitation the Service user interface design and layout).
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information, as can be demonstrated. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
a. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, Licensed Software, and other technologies provided by Nod as part of the Service are the proprietary property of Nod and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Nod. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software. Nod reserves all rights unless expressly granted in this agreement. Nod may use during and after the Term all aggregate non-identifiable data in the Service for purposes of enhancing the Service, technical support and other business purposes.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity, unless otherwise provided under an order or another agreement with Nod; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Licensed Software; or (vi) access the Service or use the Licensed Software to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c. Licensed Software. All agent software provided by Nod as part of the Service (Licensed Software) is licensed to Customer as follows: Nod grants Customer a non-exclusive, license during the Term, to operate such software on up to five computers and networked appliances within Customer’s network environment, for use solely with the Service.
a. Exclusion of indirect Damages. NOD IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA, RECORDS OR INFORMATION; LOST PROFITS AND ANY FAILURE OF DELIVERY OF THE SERVICE).
b. Limit on Liability. EXCEPT FOR NOD’S INDEMNITY OBLIGATIONS OR BREACH OF CONFIDENTIALITY, NOD’S liability for all damages ARISING OUT OF OR RELATED TO This Agreement (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed the actual amount paid by CUSTOMER within the preceding 12 months UNDER THIS AGREEMENT.
a. Term. This agreement continues until all orders terminate.
b. Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement with immediate effect, if the breach has not been cured within 30 days.
c. Suspension of Service for Violations of Law. Nod may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or any provision of this Agreement, including failure to pay the amount due to Nod in a timely manner. Nod will attempt to provide adequate notice.
This agreement is governed by the laws of New Zealand, without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the courts for New Zealand. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its legal fees and costs from the other party.
a. Defence of Third Party Claims. Nod will defend or settle any third party claims against Customer alleging that the Service (not related to Customer Data) used in accordance with this agreement violates a copyright, patent, trademark or other intellectual property right, if Customer:
• Promptly notifies Nod of the claim in writing;
• Cooperates with Nod in the defence; and
• Allows Nod to solely control the defence or settlement of the claim.
Nod will pay infringement claim defence costs, and Nod negotiated settlement amounts, and court awarded damages.
b. Remedies. If such a claim appears likely, then Nod may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Nod determines that none of these are reasonably available, then Nod will terminated the Service and provide a refund of any prepaid and unused amounts.
c. Exclusions. Nod has no obligation for any claim arising from:
• Nod’s compliance with Customer’s designs, specification, instructions, or technical information;
• Modifications made other than by Nod;
• A combination of the Service with other technology where the infringement would not occur but for the combination; or
• Technology not provided by Nod.
This section contains Customer’s exclusive remedies and Nod’s sole liability for intellectual property infringement claims.
a. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
b. Entire Agreement and Changes. This agreement and each order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
c. Electronic Notice. For purposes of service messages and notices about the Services, Nod may place a notice across its pages to alert Customer of important notices. Alternatively, notice may consist of an email to an email address associated with Customer’s account. Customer understands that Nod has no liability associated with Customer's failure to maintain accurate contact or other information.
d. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
e. Independent Contractors. The parties are independent contractors with respect to each other.
f. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.
g. No Additional Terms. Nod rejects additional or conflicting terms of any Customer form or purchasing document.
h. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
i. Survival of Terms and no CISG. Any terms that by their nature survive termination or expiration of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.