Software License Agreement
Impetus by Cyber Tribe
This Software License Agreement (“Agreement”) is a legally binding agreement between you (hereinafter referred to as “You” or “Licensee”) and Impetus’s applicable Contracting Entity (defined hereinafter) for applicable region for the Subscription Services titled “Impetus Subscription” and associated media and documentation in written or electronic form whether distributed along with the Subscription Services (defined hereinafter) or available separately.
You must carefully read and understand the terms and conditions of this Agreement before using or accessing the Subscription Services (defined hereinafter). This Agreement along with the Privacy Policy and all other regulations and applicable laws including local laws of the country or region in which you reside and/or in which you access and/or use govern your access and use of the Subscription Services (defined hereinafter). This Agreement may be presented to You in various forms including without limitation in printed form, as text displayed on the website of Cyber Tribe, or within the application itself. By opening, accessing, or otherwise using the Subscription Services (defined hereinafter), You are consenting to be bound by the terms and conditions of this Agreement.
If You do not agree to the terms and conditions of this Agreement, you shall not open, access or otherwise use the Subscription Services (defined hereinafter). In case of an organisation, You represent and warrant that You have the authority to legally bind your Organisation under this Agreement and that Your Organisation will be bound by the obligations and restrictions of this Agreement.
If You do not agree to be bound by these terms and conditions, or do not have the authority to bind your Organisation to this Agreement, then you shall not open, access or otherwise use the Subscription Services (defined hereinafter).
This document, when accepted digitally, is an electronic record under the terms of applicable laws and Rules and is deemed electronically executed on opening, accessing, or using the Subscription Services (defined hereinafter) and is legally binding between the Parties and does not require any physical or digital signatures.
1 Definitions
In this Agreement, unless the context otherwise admits, the following words and expressions shall have the meaning assigned to them hereunder:
Computer - A virtual or physical device that accepts information in digital or similar form and manipulates it for specific result based on a sequence of instructions.
Compatible Browser - Recommended browser to access the Software.
Contracting Entity - Authorised software distributor for Impetus and in the context of this Agreement this refers to Cyber Tribe Ltd.
Documentation - All printed, typewritten, electronic, or other materials, including without limitation installation and usage guides or instructions, operational requirements, user manuals and support guides accompanying the Subscription Services.
Intellectual Property - Any works, know-how, methods, charts, reports, algorithms, software, hardware, firmware, representations, creations and inventions which have been protected, in the process of being protected, or capable or being protected as patents, copyrights, trade-marks, trade-secrets, designs, or any other forms of intellectual property.
Permitted Number - The number of users that can access and/or use the Subscription Service as detailed in the purchase order or terms of agreement and the applicable subscription model.
Purchase Order - The order placed for the use of the Subscription Service in the format provided by Cyber Tribe, that is subject to the terms of this Agreement and that identifies the particulars of License granted or the Subscription Service availed by You and the applicable fees to be paid by You.
Subscription Services - The services offered by Cyber Tribe under this Agreement for the platform titled Impetus which allows for web-based access and the right to use the services offered by Cyber Tribe through the platform “Impetus” based on the Subscription Model purchased by You and shall also include the Documentations accompanying the service.
Subscription Models - The different license models offered by Impetus to You with respect to the Subscription Services. You hereby agree to be bound by the specific terms and conditions of the Subscription Model(s).
2 Grant of License
The Subscription Services licensed herein is protected by copyright laws, international copyright treaties, and all other applicable rules and regulations. The Subscription Services are licensed and not sold to You. The rights granted under this license are detailed in clause 2 of this Agreement. Any rights that are not expressly granted to You hereunder are reserved by Cyber Tribe.
Subject to the full and timely payment of the applicable license fees as indicated on your Purchase Order and full and timely adherence to all terms and conditions included herein, Cyber Tribe hereby grants You a non-exclusive, non-transferable, limited right to access and use the Subscription Services for Permitted Number on a Compatible Web Broswer as detailed in the Purchase Order in a manner consistent with its Documentations and in accordance with the Subscription Model purchased by You.
You understand and agree that under this Agreement:
a. You shall not distribute or publish copies of Impetus or the Subscription Services and Documentations or any component thereof;
b. You shall not modify, adapt, translate, reverse engineer, decompile, disassemble, or use any methods to derive source code or create any derivative work based on Impetus or the Subscription Services;
c. You shall not rent, license, assign, transfer, time share, host, lend, sub-license, distribute or lease the Subscription Services to any third party;
d. You shall not provide a third party with the results of any functional evaluation or performance tests;
e. You shall not transfer or sub-license this license to any third party. You shall not permit a third party other than your employees or staff to use the Subscription Services for monetary benefits without the prior consent of the Contracting Entity.
f. You shall not circumvent or provide a method to circumvent any technological protection measures incorporated with the Subscription Services;
g. You shall not use the Subscription Services in any manner that is not expressly mentioned in this Agreement or the Documentations;
h. You shall not remove, obscure or alter Impetus’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Subscription Services or the Documentations accompanying the Subscription Services;
i. You will not engage in facilitating any unethical, deceptive or illegal practices using the Subscription Services;
j. You shall not interfere with or disrupt the integrity or performance of the Subscription Services;
k. You shall not send or store any infringing, obscene, threatening, libellous, or otherwise unlawful material via Subscription Services; and
l. You shall not use any component of the Subscription Services separately from the services offered to You.
3 Evaluation Version
Cyber Tribe, in its sole discretion, may provide You with non-transferable, limited access to the Subscription Services without a Purchase Order and without any charge solely for evaluation purposes for a period of thirty days from the date of acceptance of this Agreement or until Cyber Tribe accepts a valid Purchase Order from You, whichever is earlier. In the event, You are using the evaluation version of the Subscription Services, You hereby agree to be bound by this terms and conditions as well as any specific terms and conditions related to the evaluation version of the Subscription Services as provided in the trial registration webpage of Impetus.
You agree and understand that any data entered by You or any actions performed by You using the evaluation Subscription Services may be permanently deleted on expiry of thirty days, or after 60 days of inactivity from the date of acceptance of this Agreement.
Notwithstanding any other provisions of this Agreement, You understand that the evaluation version of the Subscription Services is provided to You “As Is” and without any warranties or representations whatsoever.
4 Fees & Payment Terms
In consideration to the rights granted hereunder, You hereby agree to pay to Cyber Tribe Ltd the license fees as detailed on your Purchase Order. All fees must be paid in advance. You acknowledge that the license fees paid by You is non-refundable. Impetus provides demonstrations of the Subscription Services, You may access and use the evaluation version of Subscription Services to ensure that the Subscription Services fits your need before purchasing. All payments shall be made in the currency(ies) specified in the Purchase Order. You shall be responsible for paying all local and state taxes, value added taxes and other taxes and duties payable in connection with this Agreement.
5 Support
Unless otherwise agreed between the Parties in writing (See Terms of Engagement - Individual Agreement), You understand that the Contracting Entity will only be liable to provide limited support services to You with respect to access and use of the Subscription Services. The details of the support offered by the Contracting Entity are described in the support policy provided on the Cyber Tribe Website. You understand and agree that the Contracting Entity shall have the sole right and authority to modify and review the support policy without notifying You and your continued use of the Subscription Services indicates your agreement to the modified support policy. In the event any specific support services are required by You, the Parties may enter into a mutual Service Level Agreement or Individual Terms of Engagement Agreement on mutual terms relating to such services. You agree to receive communications from Cyber Tribe from time to time in relation to additional features, software maintenance and any changes to policy or pricing models.
6 intellectual Property
This Agreement is for the licensed use and access to the Subscription Services and is not an agreement for sale of the Subscription Services. You acknowledge that no ownership rights are being conveyed to You under this Agreement. All right, title, and interest, including all Intellectual Property rights in the Subscription Services and the accompanying Documentations shall solely and exclusively vest with the Contracting Entity. Nothing contained in this Agreement shall be interpreted to mean any transfer of ownership in the Subscription Services or accompanying Documentations from Cyber Tribe and Impetus to You. Further, You understand and agree that all right, title, and interest in any and all suggestions, requests, or feedbacks provided by You to the Contracting Entity under this Agreement shall be the sole and exclusive property of the Contracting Entity.
7 Confidentiality
a. The term Confidential Information used in this Agreement shall mean all information howsoever furnished or supplied or caused to be furnished or supplied by the Contracting Entity or obtained or received by You from the Contracting Entity in oral, written, electronic or any other form including but not limited to information which is of a technical, commercial, legal, or financial nature and shall include without limitation codes, methods, designs, patterns, specification, systems, know how, processes, ideas, inventions, documentations, compilations, plans, presentations, data, and any other information provided by Cyber Tribe Ltd and Impetus to You. Confidential Information shall not include:
i. The Information which is in the Public domain or comes into the public domain otherwise than by your unauthorized disclosure; or
ii. The Information, which was already known to You and has been received from a source other than Cyber Tribe and Impetus; or
iii. The Information which was or is lawfully obtained or available from a third party who was lawfully in possession of the same and free to disclose it.
b. You shall, neither during the term of this Agreement nor for a period of five years thereafter, disclose any confidential information to any third party without the express permission of Cyber Tribe. You may disclose the Confidential Information to your officers, employees or agents provided such persons are bound by instruments of confidentiality at least as stringent as this Agreement.
c. You hereby agree to promptly notify Cyber Tribe of any unauthorized use or disclosure of the Subscription Services or Confidential Information of Impetus by any third party. Further, if You are required by law to disclose any of Impetus or Cyber Tribe Confidential Information, You will not disclose the Confidential Information without providing Cyber Tribe with advance written notice to allow Cyber Tribe to seek protective order against such disclosure.
8 Warranties
a. Limited Warranty
Subject to other terms and conditions of this Agreement, the Contracting Entity warrants to You that the Subscription Services will perform substantially in accordance with the corresponding Documentations when used on a Compatible Web Browser in accordance with the manner specified in Documentations. This limited warranty is void if failure of the Subscription Services is the result of accident, negligence, misapplication, or use in violation of terms of this Agreement or Documentations.
b. Remedies
The Contracting Entity’s entire liability and your exclusive remedy under the limited warranty provided in clause 8a shall be limited to the repair or replacement of the Subscription Services or if repair or replacement is not practicable at the Contracting Entity’s sole determination, refund of license fees paid by You. You agree that the decision of the Contracting Entity with respect to your warranty claims shall be final and binding between the parties.
c. Subscription Services
While the Contracting Entity routinely test Impetus using reasonable methods to confirm its adherence to relevant compliance and industry standards from time to time, the Contracting Entity makes no representations or warranties that the Impetus conforms to any particular standards or will continue to conform to the industry standards as it operates. You have the sole responsibility to ensure that the Subscription Services is used in a manner consistent with the applicable legal, security, or compliance standards in your line of business. Cyber Tribe reserved the right to make changes to their Subscription Services at any stage.
d. Disclaimer
The limited warranty provided in clause 8a and any statutory warranty or remedy that cannot be excluded or limited under law are the only warranties and exclusive remedies applicable to the Subscription Services. The Contracting Entity does not represent or warrant that the Subscription Services will meet your requirements or that the operations of the Subscription Services will be uninterrupted or error free to the maximum extent permitted by law. The Subscription Services are provided “as is” without any warranty. All express and implied warranties, conditions and representations, including but not limited to warranties related to performance, quality, security, non-infringement of third-party rights, integration merchantability, fitness for a particular purpose, non-interference, accuracy are hereby expressly disclaimed by the Contracting Entity.
Cyber Tribe do not guarantee that all policies provided in Impetus are free from error and fit all purposes, jurisdictions and governing laws. It is the responsibility of the Subscriber to ensure that the policies meet the needs of their organisation and gain the appropriate approval from the management team, Board of Directors and other governing bodies within an organisation before publishing the policies to their users.
9 Limitation of Liabilities
In no event shall Impetus, its respective parent or affiliate companies or any of their respective directors, officers, employees, or agents be liable under any claim for tort, strict liability, lost profits, lost revenues, lost business opportunities and information, business interruption, breach of contract, or be liable for any exemplary, punitive, special, incidental, indirect, or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages are foreseeable or not. Cyber Tribe’s cumulative liability for all losses, claims, suits, breaches or damages for any cause arising out of or related to this Agreement shall be the amount you actually pad for the Subscription Services.
10 Indemnity
You hereby agree to indemnify, defend and hold the Contracting Entity harmless from and against any and all damages, liabilities, costs, and expenses, including reasonable attorney fees and expenses (collectively “Losses”) resulting from third party claims, demands, and causes of action (Collectively “Claims”) arising out of, incident to or resulting directly or indirectly from:
a. A breach of your representations, warranties, covenants, agreements and obligations under this Agreement; or
b. Your negligence or wilful misconduct.
11 Term & Termination
a. This Agreement shall come into force on your acceptance of the same in accordance with the Recitals and shall continue to be in force for the subscription term mentioned in the Purchase Order and during the renewed period upon renewal of Subscription Services for the term mentioned in the Purchase Order of renewal, unless terminated in accordance with this Agreement.
b. The Contracting Entity may terminate this Agreement (a) without providing any notice, if You fail to pay any applicable license fees as mentioned in the Purchase Order for more than a period of fifteen days; (b) without providing any notice, if You violate or infringe the Intellectual Property rights of Impetus or Cyber Tribe in any manner whatsoever; (c) after providing a notice of fifteen days if You are in breach of any provisions of this Agreement and fail to correct such breach within the said period of fifteen days; and (d) after providing a notice of thirty days without assigning any reason whatsoever.
c. You may terminate this Agreement at your convenience at any stage after the initial minimum 12month period by altering your Subscription status on the Contracting Entity’s website (cybertribe.nz), or by contacting info@cybertribe.co.nz after which your subscription and obligations under this Agreement will be terminated at the end of your billing period, meaning you will continue to receive your designated Subscription Services and be bound under this Agreement up until 12am on the day prior to your Subscription Services renewal of the 30th of the month for those with annual subscriptions.
d. Upon termination on this Agreement all rights and licenses granted to You under this Agreement will terminate and You shall immediately stop using the Subscription Services in any manner whatsoever.
12 Privacy Policy
The Contracting Entity may collect some of your personal information and data while installing and/or using the Subscription Services. All information and data collected by the Contracting Entity shall be protected under the Privacy Policy of Cyber Tribe Ltd. You may read the Cyber Tribe Privacy Policy and Privacy Collection Statement by visiting the Privacy documentation. All right, title, and interest in all data provided by You shall solely and exclusively vest with You and nothing contained in this Agreement shall be interpreted to mean transfer of any such rights to the Contracting Entity. The Contracting Entity will use your data only as necessary for functioning of the Services, and for providing Services, or for matters related to the Services. You are responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations relating to the data provided to the Contracting Entity.
You may find Cyber Tribe’s Privacy Policy here: https://www.cybertribe.co.nz/privacy-policy
13 Assignment
You shall not transfer, assign, grant, or license rights under this Agreement to any third party.
14 No Waiver
Save and except as expressly provided in this Agreement, no exercise, or failure to exercise, or delay in exercising any right, power, or remedy vested with the Contracting Entity under or pursuant to this Agreement shall constitute a waiver by the Contracting Entity or that or any other right, power, or remedy available to them,
15 Severability
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision of this Agreement and such invalid provision shall be deemed to be severed from this Agreement.
16 Notice
All notices, requests, demands, and other communications to the Contracting entity hereunder must be in writing and must be sent to the postal addresses or email address(es) provided by Cyber Tribe on its website and within the Impetus application. All notices to You may be sent to the email address provided by You at the time of registration or by any other means at the sole discretion of the Contracting Entity.
17 Governing Law, Jurisdiction, & Arbitration
a. This Agreement shall be governed, interpreted, and construed in accordance with the applicable laws in force based on the incorporation and/or operation of the Parties as follows:
· This Agreement will be governed by and construed in accordance with New Zealand law.
For all other regions not specifically mentioned above, this Agreement shall be governed, interpreted, and construed in accordance with the applicable laws in force in New Zealand, and is subject to the exclusive jurisdiction of the courts of New Zealand.
b. Any and all disputes under this Agreement shall be referred to a sole Arbitrator, who shall be mutually appointed by the Parties. However, if the Parties are unable to mutually appoint an Arbitrator, such Arbitrator shall be appointed by the court having jurisdiction to the applicable region as agreed in this Agreement and more specifically provided in Clause 17a as per the applicable Arbitration Laws of the places having exclusive jurisdiction in Clause 12a. The venue of the arbitration shall be the places having exclusive jurisdiction for the applicable region as provided in Clause 12a. The proceedings of the arbitration shall be in English Under the Arbitration Act 1996 in Auckland, New Zealand. The parties hereby agree that the Arbitrator’s award shall be binding on the Parties. The Arbitration proceedings shall be governed by the Arbitration Laws of the places having exclusive jurisdiction in Clause 12a. All costs of such arbitration shall be borne equally between the Parties.
13. Entire Agreement
This Agreement constitutes the entire Agreement between the parties in relation to the subject matter supersedes all prior agreements and understandings whether oral or written.
By accepting this Agreement, You acknowledge that You have read and understood this Agreement and You unconditionally accept to be bound under the same, by your own free will and under no duress.