FrameSmart® Software Licence
FrameSmart® Business Solutions - Picture Framing Software
Licence & Support agreement.
Copyright © 2002-2010.
TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
a) The interpretation and construction of the Agreement shall be subject to the
following:
i) the headings to Clauses are for reference purposes only and shall not affect
the interpretation or construction of the Clauses,
ii) where the context allows, the singular includes the plural and the
masculine includes the feminine and the neuter and vice versa.
iii) reference to any statute, enactment, order, regulation or other similar
instrument shall be construed as a reference to the statute, enactment,
order, regulation or other similar instrument as subsequently amended or
re-enacted.
b) “Acceptance” means that the Software has been fully and correctly installed and
tested to show that the Software meets the requirements of the Functional
Specification;
c) “Annual Maintenance and Support Fee” means the fee payable by the Licensee to
the Licensor for the provision of Support, Maintenance and Enhancement
upgrades;
d) “Commencement Date” means the date that the Licence shall commence as stated
in Schedule A.
e) “Enhancement” means additional and improved software functionality.
f) “Fault” means a fault in the Software;
g) “Fault Fix” means an amendment to the Software which corrects a Fault;
h) “Functional Specification” means the functionality defined in the latest published
user manual for the Software;
i) “Group” means all the companies in the same group (as defined in Section 53 of
the Companies Act, 1989) as the “Licencee” for the time being and from time to
time;
j) “Licence” means the non-exclusive licence granted by the Licensor to the
Licensee to use the Software;
k) “Licence Details” means the details contained in the Schedule(s) setting out the
scope of use and period of the Licence;
l) “Licence Fee” means the fee payable by the Licencee to the Licensor for the
Licence;
m) “Licensee” means the Registered User specified in Schedule A;
n) “Licensor” means The Management Communication Company Ltd (MCC Ltd),
registered office at C308, 14 West Quay, Ahuriri, Napier 4110, New Zealand
o) “Maintenance” means the correction of Faults by means of the supply of Fault
Fixes and Support Services;
p) “Maintenance Release” is a release of the Software which contains Error
Corrections or minor upgrades, and is designated by a release number;
q) “Maintenance Start Date” means the date on which the Licensee becomes liable to
pay for Maintenance;
r) “Periodic Licence” means a licence which is valid for the renewable period(s) of
time stated in the Licence Details;
s) “Perpetual Licence” means a Licence granted which permits use of the Software
indefinitely from the Commencement Date;
t) “Registered User” means the company or individual specified in Schedule A of
this agreement as the Licencee;
u) “Schedule” means a schedule to this Licence;
v) “Service Level Agreement” or “SLA” means the description of the performance
level to be achieved by the Licensor in respect of the provision of Maintenance;
w) “Software” means the software products listed and described in Schedule A.
x) “Software Delivery Date” means the date on which the software is installed at the
Licensee site and accepted by the Licensee as operating according to specification,
and the warranty period commences.
y) “Support Call” means reporting a fault or a request for support and can take the
form of a telephone call, email or website contact
z) “Support Services” means the supply of technical assistance to the Licensee in
using the Software as is described in Schedule C
aa) “Third Party Products” means the software products licensed to the Licensor by
the Licensors suppliers which are packaged up and delivered on the medias part
of the Software;
bb) “Tenant” means any outsourced end user client for whom the Licensee provides
outsourced data or application software processing services;
cc) “Update” has the same meaning as a Maintenance Release;
dd) “Version” is a major release of the Software which is denoted by a version
number, and which includes significant functionality enhancements or support for
significant new software modules over a previous version.;
2. LICENCE
a) The Software Licence terms are set out in Schedule A.
b) The Licensee is permitted to use the Software for data processing only in support
of its own business and its own customers, i.e. the Software may be used to
provide computer services by the Licensee acting as a bureau or on a time share
basis to third parties which are direct customers of the Licensee. The Software
may also be used in support of the Licensee’s normal business pursuits via remote
access devices by or on behalf of the Licensee’s employees, agents and
contractors and those of the Registered User Group of companies for the purpose
of carrying out the normal business pursuits of the Licensee.
c) The Licensee shall not without prior written consent of the Licensor, use the
Software at any location other than the locations specified in Schedule A.
3. LICENCE FEE
a) The Software Licence is granted in consideration of the payment by the Licencee
of the Licence Fee.
b) All fees stated in this Agreement are quoted exclusive of Sales Tax which will be
charged at the rate ruling at the invoice tax point.
c) The Licence Fee shall be due and payable on the Software Delivery Date.
4. TRAINING
The extent of the initial training shall be as indicated in Schedule A.
5. MAINTENANCE AND ENHANCEMENTS
a) Maintenance and Enhancements of the Software will be available from the
Licensor for the minimum period stated in Schedule B. Maintenance and
Enhancements shall be purchased at the Licensee’s sole option.
b) Maintenance includes the supply of all information, to correct errors or defects or
performance failures arising in the Software via remote or on-site support as
necessary and as further detailed in Schedule C;
c) The Licensor will supply Maintenance in accordance with the Service Level
Agreement and use reasonable endeavours to ensure that the Software maintains
currency with the Licensee’s operating system and all other relevant interfaces.
d) The Licensor shall notify the Licensee at least 3 months prior to withdrawing
Maintenance of the Version then in use by the Licensee. Maintenance shall
continue to be available for a superseded Version for at least 6 months following
the issue of a new Version. If the Licensee elects to continue to use a Non-
Supported Version the Licensor shall advise and assist the Licensee to overcome
subsequent defects, faults or problems arising in the continued use of that Non-
Supported Version. Such advice and assistance shall be provided by the Licensor
at the then current time charge rates agreed between the parties.
e) If the Licensee does not apply any improved version of the Licensor’s
maintenance programmes for the Software within 30 days of same being made
available to the Licensee, the Licensor will be entitled to charge the Licensee with
such reasonable costs as may be incurred by the Licensor to overcome subsequent
defects, faults or problems arising in the continued use of the Licensor’s
maintenance programmes for the Software used by the Licensee.
f) The Licensor agrees to inform the Licensee of any significant defects in the
Software which could reasonably affect the Licensee’s use of the Software and to
supply a documented example of such defect or error. The foregoing error
correction service shall not include:
i) defects or errors resulting from modifications to the Software made by any person
other than the Licensor,
ii) incorrect use of the Software, or operator error,
iii) any fault in the Equipment or software programs used in conjunction with the
Software,
iv) defects and errors caused by use of the Software on or with equipment or software
not supplied by or approved in writing by the Licensor.
g) Maintenance shall be provided from the Maintenance Start Date.
h) No more than once annually and at least three months before the anniversary of
the Maintenance Start Date, the Licensor may give notice in writing to the
Licensee of a proposed increase in the Maintenance Fee.
i) The Licensee shall ensure that the Software is used in a proper manner at all times
and keep full security copies of the Software in accordance with best computing
practice. The Licensee shall give reasonable assistance to the Licensor in
diagnosis of any error or defect and shall provide such facilities as are reasonably
necessary for diagnostic purposes at the Licensee’s expense and with due regard
to health and safety procedures.
6. PERMISSION TO COPY OR MODIFY THE LICENSOR’S PRODUCTS
a) The Licensee may make only so many copies of the Software and documentation
as are reasonably necessary for operational security and for its own internal
purposes, all such copies shall bear the Licensor’s proprietary notices. The
Licensee may make a copy of the Software available to a third party solely for
contingency and disaster recovery purposes in support of the Licensee. The
Licensee will secure a confidentiality undertaking from such third party as the
Licensor may reasonably require and provide a copy and written advice to the
Licensor
b) The original and all copies of the Software and related materials shall remain the
property of the Licensor.
7. COPYRIGHT/PATENT INDEMNITY
a) The Licensor warrants that it has full authority to license the Software to the
Licensee and that there are no claims liens or encumbrances which may affect the
Licensee’s use of the Software.
b) The Licensor will indemnify the Licensee against and defend, without any
expense to the Licensee, any action, claim or proceeding instituted against the
Licensee to the extent that it is based on a claim that the Software used within the
scope of this Agreement infringes a copyright or a patent, provided that the
Licensee promptly notifies the Licensor of and permits the Licensor to have
control of the defence of any action or claim and all negotiations for settlement.
c) In the event of a claim being settled out of court or judged in court against the
Licensee/Licensor, and subject to the provisions of clause 8.b above, the Licensor
will promptly pay any damages, legal costs and expenses suffered by the Licensee
including any financial awards against the Licensee in such action which are
attributable to such claim.
d) Should the Software become, or in opinion of the Licensor be likely to become
the subject of a claim of infringement of a copyright or a patent or similar
intellectual property right, the Licensor shall either:
i) procure for the Licensee the right to continue using the Software; or
ii) replace or modify the Software to make it non-infringing, without materially
degrading its performance.
8. PROPRIETARY RIGHTS
a) The Software, copyright and other intellectual property rights of whatever nature
in the Software are and shall remain the property of the Licensor and the Licensor
reserves the right to grant licences to use the Software to third parties.
b) The Licensee shall notify the Licensor immediately if the Licensee becomes
aware of any unauthorised use of the whole or part of the Software.
c) The Licensee agrees to report on a annual basis the number of remote users
attached to the system and will permit the Licensor to request to check such use of
the Software by the Licensee at all reasonable times.
d) The Licensee acknowledges and accepts that any Third Party Products licensed
through or provided by the Licensor are subject to such restrictions and rights on
the part of the Licensor’s suppliers contained in the licenses between the Licensor
and its suppliers.
9. WARRANTY
a) The Licensor warrants that each Release and Version will perform in accordance
with its Functional Specification. In the event of breach of this warranty the
Licensor undertakes to modify the Software free of charge to enable it to perform
in accordance with its Functional Specification.
b) The Licensor undertakes to correct promptly any Fault which is shown to the
reasonable satisfaction of the Licensor to have been caused by the faulty design or
workmanship of the Licensor or by a failure of the Software to operate
substantially in accordance with its Functional Specification.
c) In the event of any error or failure in the Software attributable to the above dates
and date changes, the Licensor shall use its reasonable endeavours to modify the
Software to correct such error or failure and to assist the Licensee in restoring its
computer systems to normal operations.
d) The warranty shall be subject to the Licensee complying with its obligations
hereunder and the Licensor shall have no liability or obligations under the
warranty other than to remedy breaches thereof.
e) The Licensee acknowledges that the Software has not been prepared to meet the
Licensees individual requirements and that it is the responsibility of the Licensee
to ensure that the functions described in the Functional Specification meet its
requirements.
f) The Licensee hereby warrants to the Licensor that the Licensee has not been
induced to enter into this Agreement by any prior representations or warranties,
whether oral or in writing except as specifically contained in this Agreement.
g) Warranty is limited: the Licensor offers no guarantee of error free or
uninterrupted use. While the Licensor has endeavoured to make sure that the
Software works substantially as per the Functional Specification, the Licensor
does not guarantee that the Software will work on all computer hardware
platforms or configurations and makes no warranty that the Software will be error
free, that its use will be uninterrupted or be fit for your purpose.
10. INDEMNITY
a) Each of the parties shall indemnify and keep indemnified the other against injury
(including death) to any persons (including any employee, agent sub-contractor or
representative ) or loss of or damage to any tangible property which may arise out
of any act or omission (whether caused by negligence or not) of the other party, or
of any sub-contractor, employee, agent or representative of the other party or
arising out of or in consequence of the other’s obligations under this Licence and
against all claims, demands, proceedings, damages, costs, charges and expenses
whatsoever in respect thereof or in relation thereto.
b) The Licensor’s maximum liability for damages arising in connection with this
Licence or the supply of the Software is limited to the amount paid by the
Licensee for the Software
c) The Licensor has no responsibility for recommendations: the Licensor, its
employees, agents, contractors and the authors disclaim any and all liability and
responsibility to any person, whether a user of this Software or not, in respect of
anything (including, without limitation, any error in or omission from this
Software) and of the consequences of any actions taken or omitted to be taken in
reliance, whether wholly or partially, upon all or any part of the content,
recommendations or help contained in this Software.
11. CONFIDENTIALITY
Neither party shall disclose or pass on any information concerning the business of the
other or copy or utilise other than in connection with the purposes of this Agreement any
information trade or professional secrets of the other party, which shall be deemed to
include the Software. Each party shall procure that its employees, agents and
subcontractors shall observe these conditions. This restriction shall not apply to
information, which is now or later becomes generally available in the public domain, or
to information, which is independently developed by parties without use of any such
confidential information.
12. PUBLICITY
The Licensor shall neither disclose the making of this Licence in any journal magazine,
publication or other medium nor use the Licensee’s name in any of its advertising
material without the Licensee’s prior consent.
13. ASSIGNMENT
Unless expressly provided herein, neither party shall without the prior written consent of
the other assign this licence nor any part thereof nor delegate any of its responsibilities or
obligations hereunder.
14. TERMINATION
a) Maintenance
The provision of Maintenance may be terminated by:
i) the Licensee giving three month’s prior written notice at any time;
ii) the Licensee immediately if the Licensor is in material breach of any of
the terms hereof and the Licensor has not remedied such breach (where
such breach is capable of being remedied) within 30 days of written notice
so to do;
iii) by either party immediately if it becomes apparent that the other has
become insolvent or has had a receiver appointed or has called a meeting
of creditors or resolved to go into liquidation (except for amalgamation or
reconstruction while solvent) or has had a petition for compulsory winding
up.
b) Effect of Termination
i) The parties’ prior accumulated rights shall not be affected by termination.
ii) In the event of termination or cancellation of the Licence by the Licensee
the Licensee shall return or certify as destroyed all proprietary information
regarding and including the Software.
15. DISPUTES
a) Without prejudice to the rights granted in clause 16, if at any time a dispute or
difference shall arise between the parties in relation to or in connection with this
Agreement which appears to prejudice this Agreement to a significant extent
either party may call a dispute resolution meeting.
b) The meeting shall be held within (14) fourteen days of the date of the notice
calling the dispute meeting (unless otherwise agreed) and will be attended by
senior management of both parties. Senior management shall mean persons with
the authority to settle the dispute.
c) The purpose of the meeting shall be to review and agree as far as practicable the
action to be taken to solve the problems which have given rise to the calling of the
meeting and the parties shall negotiate with each other in good faith to that end.
Pending the settlement of any dispute the parties shall nevertheless continue to
perform their respective obligations hereunder.
16. ARBITRATION
In the event of failure to agree a mutually acceptable solution pursuant to Clause 15, the
dispute shall be referred within 21 days to the arbitration of a person to be mutually
agreed or failing mutual agreement to a person appointed by the President of the New
Zealand Law Society for the time being.
17. WAIVER
a) No relaxation forbearance delay or negligence by either party in enforcing any of
the terms and conditions of this Agreement or the granting of time by either party
to the other shall prejudice affect or restrict the rights and powers of that party.
b) No waiver of any terms or conditions of this Agreement shall be effective unless
made in writing and signed by the party against which enforcement of the waiver
is sought. The waiver of any breach of any term of condition of this Agreement
shall not be construed as a waiver of any subsequent breach or condition whether
of the same or different nature.
18. VARIATION
No variation to this Agreement shall be effective unless in writing signed by a Director
(or other duly authorised officer) of each of the parties hereto.
19. NOTICES
a) All notices shall be confirmed in writing by pre-paid post to the address of the
relevant party set out in this Agreement or to such other address as either party
may have notified in writing to the other.
b) Notices shall be deemed (in the absence of evidence of earlier receipt) to have
been delivered 48 hours after despatch.
20. SURVIVAL
The following clauses shall survive the termination of this Agreement: 10,11,13,14,15,16.
21. LAW
This Agreement shall be subject to and interpreted in accordance with the Laws of New
Zealand.
Signed on behalf of the Registered User:
Company/name: (Printed)
Signature_____________________________________ Date: / /
Name (Printed)
Title (Printed)
Signed on behalf of Licensor:
or authorised distributor (name):
Signature______________________________________ Date: / /
Name (Printed)
Title (Printed)
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SCHEDULE A - LICENCE DETAILS
1. Period of Licence
The Licence granted hereunder is for a period of one year, with rights of renewal for
subsequent years dependant on payment of an applicable Annual Maintenance and
Support Fee on each anniversary of the Commencement Date.
2. Software:
FrameSmart Business Solutions® - Picture Framing software, comprising the following
components: (delete those which are not applicable)
A. FrameSmart® Point of Sale (POS) pricing system
B. FLO® - Frame Live Order system
C. VisualiseIt® – picture framing design & visualisation
3. Scope of Use
The Licence permits the Licensee to load and use the software in the following
configuration:
(specify configuration of network and servers required for FrameSmart System
implementation)
In accordance with clause 8 (c) of the Agreement, if additional users of a FrameSmart
System are added to the network the licence becomes subject to additional fees
appropriate to the new number of users and the then current FrameSmart price list.
4. Locations
Production server [physical location]
Remote users [number] [physical location(s)]
5. Warranty Period
12 months
6. Training
None in this Agreement.
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SCHEDULE B - MAINTENANCE AND ENHANCEMENTS DETAILS
1. Software:
FrameSmart® software modules as defined/limited in Schedule A
2. Maintenance/Enhancements
All releases are free of charge providing the Annual Maintenance and Support Fee has
been paid for the current year, or a monthly automatic payment authority is in force.
3. Minimum period (Clause 5(a) refers)
One Year
FrameSmart Business Solutions®, FrameSmart®, FLO® and VisualiseIt® are trademarked.
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SCHEDULE C - SERVICE LEVEL AGREEMENT
1. Software:
FrameSmart® Business Solutions software modules as defined/limited in Schedule A.
2. Service Level Agreement
The Licensor and/or its authorised distributor undertakes to provide a Customer Support
Helpdesk facility, having suitably skilled support staff available from 9:00 a.m. to 5:00
p.m. NZ time or AEST on regular business days to log Support Calls and to deal
promptly with problems encountered by the Licensee’s users of the Software.
Licensees shall make best endeavours to establish the validity of the problem prior to
making a Support Call by checking the user manual, website pages and forum notes for
similar problems and solutions.
The impact and severity of a reported fault or problem will be evaluated and discussed
with the Licensee when the Helpdesk responds to the Support Call. The severity of the
problem will be mutually agreed and documented according to these guidelines:-
Critical - A problem or fault which must be resolved before the Licensee can continue
normal business operations.
The Licensor’s support staff will use best endeavours to respond to the Licensee within
one (1) hour of receiving notice of a critical problem being reported by telephone.
Critical problems will be worked on continuously until the fault is permanently cleared or
the system is operational.
Serious - A problem or fault which significantly inhibits production but does not prevent
operations and has a significant measurable monetary or business impact.
The Licensor’s support staff will use best endeavours to respond to the Licensee within
four (4) hours of receiving notice of a serious problem being reported.
Moderate - Specific functions do not conform to Functional Specification, but do not
impede productive use of the Software.
The Licensor’s support staff will use best endeavours to respond to the Licensee within
seventy two (72) hours of a moderate problem being reported.
Minor - Cosmetic production problems and general test system problems that do not
affect availability of the production system, on line transaction processing, or have no
significant monetary or business value. .
The Licensor’s support staff will respond to the Licensee within one (1) week of a minor
problem being reported.