Terms of service agreementYou must agree to this agreement before ordering any service
WARNING: You must agreement to both agreements below before using any of our service(s).
Please read them carefully and if you have any questions, please email us or open a support ticket to ask.
Please do NOT use our service(s) until you have read, understand and agree to our terms of services agreements.
WEBSITE HOSTING AGREEMENT
Definition Of Terms
The following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires: “Ivor Software”, “us”, “we” and “our” means Ivor Software Ltd t/a Ivor Software; “Service”, means services provided by Ivor Software; “client”, “your” and “you” means the party or parties who the services are provided to, and agree with our Service Agreement.
Ivor Software provides you a variety of online services including, but not limited to, domain name registration, email, web hosting, database hosting, sms, data backup and virtual servers (the “Service”). Unless stated otherwise, any new service features that enhance a current service shall be subject to our Service Agreement.
Providing Us With Information
You agree to provide true, accurate, current and complete information relating to who the services are being provided to, whether being an individual, organisation or registered company. You also agree to maintain and promptly update your account information to keep it true accurate, current and complete.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Ivor Software has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Ivor Software has the right to suspend or cancel your account without notice and refuse any and all current or future use of our services.
We agree to keep your information private, unless you consent to its disclosure, or we are legally required to disclose it. Ivor Software does not provided credit references unless specifically agreed upon by Ivor Software before the credit reference is requested by a third party.
You represent and warrant that you are the person legally responsible for all use of this account, and are at least 18 years of age. If you are under 18 years of age, you must have parental consent in order to use our services, and the account must be opened and maintained by a parent or legal guardian, in their name. You agree to provide Ivor Software with your full legal name, postal address, telephone number and an email address that is not hosted through Ivor Software for our records, and you have a continued obligation to keep this information current.
Providing You With Service
We aim to provide you highly reliable services that can be accessed at anytime. To support our commitment, all Ivor Software clients are covered by our Service Level Agreement. A copy of this agreement can be requested at anytime or downloaded from the following URL: http://www.Ivor Software.co.nz/support/service-level-agreement.php
If you use our services for personal or non-commercial use, you can exercise your rights under the Consumer Guarantees Act 1993 (CGA) and our Service Agreement does not limit your rights. However if you use our services for business purposes (or you have told us you will do so) then we exclude all warranties implied under the CGA.
Ivor Software’s services may only be used for lawful purposes. Any use which violates any national or international laws which may apply to Ivor Software or any jurisdiction that you may be subject to is strictly prohibited. While using a Ivor Software service, you will not:
Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any national or international law, including without limitation the laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution law.
Ivor Software will be the sole arbiter as to what constitutes a violation of this provision and reserves the right to suspend your service without notice.
Terms Of Payment
You agree to pay Ivor Software for the services received from Ivor Software in advance of the time period during which such services are provided.
All service fees are due in full within 14 days of invoice dates. If payment is not received within this period, you will be emailed and posted an overdue notification stating the amount owing and a service suspension date. If payment in full has not been received by the advised suspension date, your services will be suspended without further notice and reconnection fee of $25.00 + GST may apply at our sole discretion.
Suspended accounts are cancelled after a further 14 days at which time all data and account settings are deleted from our servers. If any outstanding service fees have still not been received, your account will be referred to our debt collection agency and you will incur all costs of collection pursuant to the Fair Trading Act, 1986.
Ivor Software reserves the right to refuse service to any individual, organisaton or company which has previously not complied with our Terms of Payment.
Right To Refuse
Ivor Software may at any time and without notice to you, suspend, or refuse to continue to provide service without providing any reason at any time prior to, or after, the service has been suspended or refused. This right will not be unreasonably exercised.
Cancellation Of Service
You fully understand that until and unless you notify Ivor Software of your desire to cancel any or all services received, and you complete the cancellation process, those services will continue to be provisioned and invoiced on a recurring basis. In order for the account to be cancelled, it must be paid in full at the time of cancellation.
Without exception, all service cancellations requests must be submitted at the following URL:
Submission of this online form will generate an automated email to the email address specified in the form, and within this email will be a unique tracking number – that is the only proof of cancellation that will be accepted by Ivor Software. There are no refunds or credits once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.
Ivor Software will not accept verbal, emailed or faxed instructions to cancel a service or account.
Acceptable Use: Server Performance
If your web site affects the performance or security of the server system, Ivor Software at its sole discretion, without notice, may immediately suspend, throttle, or perform any other action that will prevent your site from impacting other clients and the server system as a whole.
Zero Tolerance Spam Policy
Ivor Software takes a zero-tolerance stance against sending unsolicited email, commonly known as spam. Sending unsolicited email, from any any server located on the Ivor Software network is STRICTLY prohibited. Ivor Software will be the sole arbiter as to what constitutes a violation of this provision. The accounts of any user who sends spam will be terminated without notice, regardless of whether the messages were sent from a Ivor Software server or from another server advertising a site hosted on Ivor Software servers.
Server Maintenance & Updates
Ivor Software performs regular upgrades and updates to server applications. These upgrades/updates may require you to update/upgrade your code to be compatible with new versions. You agree to take full responsibility for implementing these updates. Ivor Software is not responsible for web site malfunctions after upgrades/updates due to clients running incompatible code.
Where you use server side code, you agree to test all code in local test environment before uploading to Ivor Software’s servers. You are responsible for ensuring that any scripts that you install do not compromise the security of our servers. All installed scripts must be updated with the latest releases and you must ensure that it is not possible to abuse such scripts to gain access to the file system of the server, affect the service of other clients on the server, or to send emails to third parties. Ivor Software reserves the right to suspend or cancel your account without notice if a script installed by you is not up to date, is found to be affecting the overall performance of the server, or has been compromised.
You agree to fully defend and indemnify and hold harmless Ivor Software of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including lawyers fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Ivor Software in any way related to your use of Ivor Software services or any portion thereof.
Ivor Software makes every reasonable effort to maintain the uninterrupted operation of the services, subject to regularly scheduled server and network maintenance cycles. In no event shall Ivor Software be liable for any consequential, indirect, special or incidental damages, even if Ivor Software has been advised by the user of the possibility of such potential loss or damage. If Ivor Software’s service to you is disrupted or malfunctions for any reason, Ivor Software shall not be responsible for losses of income due to disruption of service, or any other such issues whether due to the active or passive negligence of Ivor Software, beyond those covered in the Ivor Software Service Level Agreement.
Ivor Software shall not be liable for any failure or delay in performance of its service, which is caused by circumstances beyond the reasonable control of Ivor Software including but not limited to fires, explosions, severe weather, industrial disputes, insurrection, riots, requirements or regulations or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, terrorist action, DNS caching, propagation or other DNS issues outside Ivor Software’s reasonable control or failure or outage of any telecommunications links or other connections forming part of the Internet which are not under the control of Ivor Software.
Each provision of thIs Service Agreement shall be construed separately. If the whole or any part of any such provision may prove to be illegal or unenforceable, this shall not affect the legality or enforceability of any other provision of this Service Agreement and the parties shall try to agree substitute provision for that which is invalid or unenforceable.
The Service Agreement will be construed in accordance with and governed by the laws of New Zealand. Each party agrees to submit to the exclusive jurisdiction of the New Zealand courts.
Ivor Software and you will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of or relate to this Service Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to try and resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect any proprietary or trade secret right.
You do not have the right to off-set any money that you may claim from Ivor Software against anything the you may owe Ivor Software from any invoice.
You shall indemnify and keep indemnified Ivor Software against all expenses and liabilities Ivor Software may incur (directly or indirectly and including legal and debt-recovery costs on a full indemnity basis) following any breach by you of any of its obligations under this Service Agreement.
Ivor Software may without advance notice amend this Service Agreement from time to time, and will do so by posting the new Agreement on the Ivor Software web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the Ivor Software web site for updates of this Service Agreement.
You acknowledge that you have read this Service Agreement and agree to all it’s terms and conditions. You have independently evaluated the desirability of using the service are not replying on any representation, guarantee, or statement other than as set forth in this agreement.
IVOR ERP FRAMEWORK END USER LICENSE AGREEMENT
IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR COLLECTIVELY ON BEHALF OF YOUR BUSINESS ENTITY) AND S&K INTERNATIONAL TRADING LIMITED – THE OWNER OF IVOR ERP FRAMEWORK. READ IT CAREFULLY BEFORE USING THE SOFTWARE. AMONG OTHER PROVISIONS, IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU CONFIRM YOUR ACCEPTANCE OF THE SOFTWARE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL OR STOP USING THE SOFTWARE. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
1.1 “Activated” has the meaning given in Section 2.4.2.
1.2 “Agreement” means both the EULA and the Pricing and Term Agreement.
1.3 “Applicable Law” means laws in New Zealand or applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
1.4 “Beta Version” means any version of the Software released by Ivor Software Ltd for testing as determined by Ivor Software Ltd in its sole discretion.
1.5 “Effective Date” has the meaning given in the Pricing and Term Agreement.
1.6 “EULA” means this End-User License Agreement.
1.7 “Intellectual Property Rights (IP Rights)” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
1.8 “Pricing and Term Agreement” means, as applicable, (a) the Pricing and Term Agreement entered into between You and Ivor Software Ltd in connection with the license of the Software which sets forth (among other things) pricing, term and payment provisions of this Agreement; (b) the pricing and payment provisions located at www.ivorsoftware.com (or such other URL as Ivor Software Ltd may designate from time to time); and/or (c) the pricing and payment provisions of any agreement between You and a Ivor Software Ltd reseller (or other third party authorized to grant You the license) pursuant to which You obtained a license to use the Software. The Pricing and Term Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
1.9 “Software” means the Ivor ERP Framework software program(s) and all its associated software plug-ins supplied by Ivor Software Ltd together with this Agreement, and corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components.
1.10 “Term” means the term of this Agreement as set forth by the term of the license obtained by You (a) in connection with the Pricing and Term Agreement; or (b) from a Ivor Software Ltd reseller or other third party authorized to grant You the license.
1.11 “Territory” means the world, except to the extent that use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
1.12 “Trademarks” means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of Ivor Software Ltd including without limitation, Ivor ERP Framework and the Ivor Software Ltd logo. Ivor Software Ltd may add to the foregoing nonexclusive list of Trademarks in its sole discretion from time to time.
1.13 “Third Party Users” and “Licensee” both mean, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You.
1.14 “Updates” means any bug fixes, patches and other modifications of the Software provided to You by Ivor Software Ltd.
1.15 “Virtual Private Server” means a virtual server operating on a single physical server upon which multiple virtual servers may operate.
1.16 “You” or “Your” means or refers to the individual or entity entering into this Agreement with Ivor Software Ltd, whether or not such terms are capitalized in this Agreement.
1.17 “Ivor ERP Framework” means Ivor ERP Framework software that is developed by the developer Ivor He of New Zealand and currently its software ownship belongs to Ivor Software Ltd in New Zealand.
1.18 “Ivor Software Ltd Anonymous Usage Data” means all data collected by Ivor Software Ltd in connection with the use of the Software by You or any Third Party Users, including (a) the licensed or unlicensed status of the Software; (b) the source from which the license for the Software was obtained; and (c) information about the hardware upon which the Software is installed including (i) the public IP address, (ii) the operating system, (iii) web server version, (iv) the use of any virtualization technologies on such server, and (v) data utilized to prevent and combat various server attacks by hackers or their hardware, including but not limited to assaults such as spam attacks, brute force attacks, dictionary attacks, phishing, pharming, and the like. Additionally, “Ivor Software Ltd Anonymous Usage Data” may also include information collected by Ivor Software Ltd from time to time concerning which features of the Software are most often used in order to improve and make adjustments to the Software, including, but not limited to the number of active modules, PHP version, mySQL version, installed PHP extensions, installed add-on modules, template utilization, and the number of active administrators, domains, servers, and active clients.
1.19 “Ivor ERP Framework Front-end Websites” means websites developed based on Ivor ERP Framework, for which may work as a shopping cart, a content management website, rental booking system, tourism booking system or as Ivor Software Ltd may designate from time to time which. Only Ivor ERP Framework Licensees may access and use the Ivor ERP Framework Front-end Websites.
2.1 License Grant. During the Term, solely within the Territory and subject to the terms and conditions of this Agreement, Ivor Software Ltd grants You a limited, non-exclusive, license to (a) install and use the Software and (b) make a single back-up copy of the registered Software for archival purposes. The foregoing license is revocable, non-transferable, non-assignable and non-sub-licensable.
2.2 License Transfers. The Software is licensed only to You. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis, without the prior written consent of Ivor Software Ltd. (For the avoidance of doubt, this license is only granted to one person or company and if more than one person or company wishes to use the Software, each user must purchase a separate license).
2.3 Restrictions of Use.
2.3.1 Installation of Software Package. The Software is licensed as a single product and none of the components in the Software may be separated for installation or use.
2.3.2 Single Domain. This Software is licensed to operate on only one domain.
2.3.3 Back-Up Copy. All backup copies must be an exact copy of the original Software. If You make a back-up copy of the Software, such copy must be in machine-readable form and You must reproduce on such copy all Intellectual Property Right notices and any other proprietary legends on the original copy of the Software.
2.3.4 No Derivative Works; Reverse Engineering. You may not alter, merge, modify, prepare derivative works based upon, adapt or translate the Software in any manner whatsoever. Additionally, You may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to any human-readable form, or use the Software to develop any application having the same primary functions as the Software.
2.4 Monitoring of Software.
2.4.1 Audit by Ivor Software Ltd. You agree that Ivor Software Ltd may audit Your use of the Software for compliance with this Agreement at any time, upon reasonable notice. You agree to cooperate with Ivor Software Ltd and any auditors selected by Ivor Software Ltd to complete the audit including by providing access to any facilities in which the Software is used or stored, including without limitation the facilities which house the hardware upon which the Software is installed. In the event that such audit reveals any use of the Software by You other than in compliance with the terms of this Agreement, You shall reimburse Ivor Software Ltd for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such noncompliance.
2.4.2 Authentication System. The Software contains technological measures that, working in conjunction with Ivor Software Ltd computer servers, are designed to prevent unlicensed or illegal use of the Software (collectively, the “Authentication System”). You acknowledge and agree that such Authentication System allows Ivor Software Ltd to (among other things) (a) monitor use of the Software by You as set forth in Section 2.4.3 (Ivor Software Ltd Anonymous Usage Data); (b) suspend or disable access to the Software in whole or in part in the event of a breach of this Agreement; and (c) terminate use of the Software upon the expiration or termination of this Agreement. You agree not to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System, including any communications between the Software and Ivor Software Ltd’s computer servers. For the avoidance of doubt, the Software will not operate unless Ivor Software Ltd from time to time verifies the Software using the Authentication System which requires the exchange of information between You and Ivor Software Ltd over the Internet.
2.4.3 Ivor Software Ltd Anonymous Usage Data. You agree that, without further notice to You, Ivor Software Ltd may use technological means to (a) monitor use of the Software as may be necessary to monitor for compliance with the terms of this Agreement; and (b) collect Ivor Software Ltd Anonymous Usage Data. Ivor Software Ltd reserves the right to copy, access, store, disclose and use Ivor Software Ltd Usage Data indefinitely in its sole discretion; provided, however, that in the event that Ivor Software Ltd collects information concerning which features of the Software are most often used by You, Ivor Software Ltd will remove personally identifiable information (if any) from such data and copy, access, store, disclose and use such data solely for the purpose of improving the Software.
2.5 Privacy Act 1993 (NZ). Ivor Software Ltd undertakes to comply with the provisions of the Privacy Act 1993 and any related legislation in so far as the same relates to the provision of the Software and related support services by Ivor Software Ltd to You. Your name, address and other personal information as well as any personal data You supply to Ivor Software Ltd in order for Ivor Software Ltd to provide the Software and related services related to You will be stored by Ivor Software Ltd on its computer system and may be made available to Ivor Software Ltd staff and related third parties as required to allow the provision of support and any related services to be completed. Any third party that receives personal data from Ivor Software Ltd is under an obligation to process such personal data in line with the Privacy Act 1993.
2.6 Updates. The Software may automatically download and install updates from time to time from Ivor Software Ltd. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the Software. You agree to receive such updates (and permit Ivor Software Ltd to deliver these to You) as a condition to Your use of the Software.
2.7 License Exchange. You agree that this Agreement shall supersede any prior End-User License Agreement and between You and Ivor Software Ltd applicable to the Software and that such prior End-User License Agreement is hereby terminated if (a) You previously purchased a license for the Software and are now purchasing a new license for the Software so that You may obtain additional technical support or updates during the Term of this Agreement; or (b) the copy of the Software You licensed with this Agreement is an upgrade to an earlier version of the Software. You may not continue to use the earlier version of the Software or transfer it to another person or entity.
3. Intellectual Property Rights.
3.1 Ownership. Ivor Software Ltd owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) Ivor Software Ltd Anonymous Usage Data; and (d) any and all Submissions (collectively, “Ivor ERP Framework IP Rights”).
3.2 Trademarks; Domain Names. This Agreement does not authorize You to use the Trademarks. If You wish to use the Trademarks, You must obtain a written license to use the Trademarks from Ivor Software Ltd. Additionally, You will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest Ivor Software Ltd’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
3.3 No Implied License or Ownership. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant You any right, title or interest, implied or otherwise, in or to the Ivor ERP Framework IP Rights.
3.4 No Contest. You acknowledge and agree that the Ivor ERP Framework IP Rights are and shall remain the sole and exclusive property of Ivor Software Ltd. You agree that You shall never oppose, seek to cancel, or otherwise contest Ivor Software Ltd’s ownership of the Ivor ERP Framework IP Rights or act in any manner that would or might conflict with or compromise Ivor Software Ltd’s ownership of the Ivor ERP Framework IP Rights, or similarly affect the value of the Ivor ERP Framework IP Rights. Whenever requested by Ivor Software Ltd, You shall execute such documents as Ivor Software Ltd may deem necessary or appropriate to confirm, maintain or perfect Ivor Software Ltd’s ownership of the Ivor ERP Framework IP Rights. In the event Ivor Software Ltd is unable, after using its reasonable endeavours (which shall not require Ivor Software Ltd to incur any costs), to secure Your signature on any document or documents needed to apply for or to confirm, maintain or perfect Ivor Software Ltd’s ownership of the Ivor ERP Framework IP Rights for any other reason whatsoever, You hereby irrevocably designate and appoint Ivor Software Ltd as Your duly authorized attorney-in-fact, to act for and on Your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect Ivor Software Ltd’s ownership of the Ivor ERP Framework IP Rights with the same legal force and effect as if executed by You. In the event You become aware that any third party is, or may be, infringing the Ivor ERP Framework IP Rights, You agree to notify Ivor Software Ltd of such fact.
3.5 Proprietary Notices. Third party trademarks, trade names, product names and logos included in the Software may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
3.6 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that You submit to Ivor Software Ltd concerning the Software, or any of Ivor Software Ltd’s products or services, You agree that: (a) Your Submissions will automatically become the property of Ivor Software Ltd, without any compensation to You; (b) Ivor Software Ltd may use or redistribute the Submissions for any purpose and in any way; (c) Ivor Software Ltd is not obligated to review any Submissions; and (d) Ivor Software Ltd is not obligated to keep any Submissions confidential. In addition, any illegal, lewd, abusive, profane or otherwise disturbing submissions by You shall constitute a material breach of this Agreement giving rise to Ivor Software Ltd’s termination rights in Section 5.2.
4. Payments & Refunds.
4.1 Payments. As a condition of the license granted to You pursuant to this EULA, You shall pay Ivor Software Ltd the amount(s) set forth in Your Pricing and Term Agreement in accordance with the payment terms contained therein.
4.2 Refunds. Refunds are only issued for software failure. Refunds are not issued for server failure/issues, lack of features or if Your hardware does not meet the Software Requirements. Refunds are determined on individual circumstances and only issued once Ivor Software Ltd’s technical staff determines that Ivor Software Ltd has a fault causing it to not run on Your hardware. Installation charges are not refundable under any circumstances. Refunds are not available after 1 month from purchase date.
5 Term and Termination.
5.1 Term. This Agreement shall be effective on the Effective Date and shall automatically expire at the end of the Term.
5.2 Termination. Ivor Software Ltd may terminate this Agreement (a) in the event of Your breach of this Agreement (or a sublicensee’s breach of a provision of a Third Party User’s agreement relating to the Software) upon 30 days’ notice to You if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.2; or (c) immediately without notice in the event of Your (or Your sublicensee’s material breach of this Agreement. You acknowledge and agree that any breach by You (or any Third Party User) of the following provisions of the Agreement or any related provisions of a Third Party User’s agreement relating to Ivor Software Ltd or the Software shall each constitute a material breach: (i) use of the Software in excess of the license grant in Section 2.1 (License Grant); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of the Software in violation of Section 2 (License) or Section 9.8 (Assignment); (iii) any violation of Section 2.3 (Restrictions of Use) including without limitation Section 2.3.4 (No Derivative Works; Reverse Engineering); (iv) any violation of Section 2.4 (Monitoring of Software) including without limitation any attempt, whether successful or not, to thwart, interfere with, circumvent or block the operation of any aspect of Ivor Software Ltd’s monitoring of the Software; (v) any conduct inconsistent with the Ivor Software Ltd IP Rights as set forth in Section 3 (Intellectual Property Rights); (vi) any breach of Section 4 (Payment); and (vii) any breach of Your warranties under Section 6.1 (Mutual Warranties). Additionally, a material breach by You of any agreement or contract between You and Ivor Software Ltd, including without limitation a breach of Ivor Software Ltd’s Trademark Usage Policy, any applicable EULA, or the Technical Support Agreement shall be deemed a material breach of this Agreement and shall give rise to Ivor Software Ltd’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.
5.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, (a) You must destroy all copies of the Software, including any back-up copy; (b) You must uninstall or delete the Software from the Licensed Server; and (c) Ivor Software Ltd may without notice and in its sole discretion terminate, suspend or disable access to the Software by You or any Third Party User.
5.4 Survival. Sections 1 (Definitions), 2.4 (Monitoring of Software), 3 (Intellectual Property Rights), 4 (Payments), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive the termination or expiration of this Agreement for any reason.
6. Warranties; Disclaimer.
6.1 Mutual Warranties. Each party hereto warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the use and installation of the Software and the performance of its obligations under this Agreement.
6.2 Limited Warranty. Ivor Software Ltd warrants that, for a period of ninety days from the date of delivery of the Software, when used with a hardware and software configuration recommended by Ivor Software Ltd, the Software will perform in substantial conformance. The limited warranty in this Section 6.2 shall not apply (a) if Your version of the Software is a Beta Version; (b) if the Software has been altered in any way by a party other than Ivor Software Ltd; (c) the Software’s third party components; or (d) if any failure or error arises out of use of the Software with anything other than a Ivor Software Ltd recommended hardware and software configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the limited warranty in this Section 6.2.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SOFTWARE LICENSED HEREUNDER IS PROVIDED “AS IS” AND Ivor Software Ltd HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Ivor Software Ltd DOES NOT WARRANT THAT THE SOFTWARE OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF Ivor Software Ltd HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
6.3.1 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OR THE MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
6.3.2 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Ivor Software Ltd’S AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.
6.3.3 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Ivor Software Ltd WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF Ivor Software Ltd HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS OWED BY YOU TO Ivor Software Ltd UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Ivor Software Ltd’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY Ivor Software Ltd UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY OF SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND Ivor Software Ltd’S ENTIRE LIABILITY SHALL BE FOR Ivor Software Ltd, AT Ivor Software Ltd’S ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE ITS COMMERCIALLY REASONABLE ENDEAVOURS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION INCLUDED WITH THE SOFTWARE; OR (B) REFUND TO YOU YOUR LICENSE FEE FOR THE SOFTWARE; PROVIDED THAT YOU REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO Ivor Software Ltd NO MORE THAN NINETY (90) DAYS FOLLOWING DELIVERY OF THE SOFTWARE TO YOU.
8. Indemnification. You shall indemnify, defend and hold harmless Ivor Software Ltd and its directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “Ivor Software Ltd Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the Ivor Software Ltd Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of Your representations, warranties or obligations under this Agreement; (b) in the event that You sublicense the right to use the Software to any Third Party Users pursuant to Section 2.2 (Sublicensing), (c) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party User’s agreement relating to Ivor Software Ltd or the Software; and (d) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination, suspension or disabling of such user’s access to the Software by Ivor Software Ltd pursuant to the terms and conditions of this Agreement; provided, however, that in any such case Ivor Software Ltd or its affiliates, as applicable, (x) provide You with prompt notice of any such claim; (y) permit You to assume and control the defence of such action upon Your written notice to Ivor Software Ltd of Your intention to indemnify; and (z) upon Your written request, and at no expense to Ivor Software Ltd or its affiliates, provide to You all available information and assistance reasonably necessary for You to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Ivor Software Ltd Parties, without Ivor Software Ltd’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable lawyers’ fees and costs awarded against or otherwise incurred by Ivor Software Ltd or its affiliates in connection with or arising from any such claim.
9.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that Ivor Software Ltd and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Ivor Software Ltd and You.
9.3 Governing Law and Jurisdiction. If this license is to any New Zeland entity, the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. If this license is to any entity outside New Zealand, the courts of that licensee’s local country or region will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
9.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between Ivor Software Ltd and You and shall inure to the benefit of Ivor Software Ltd. Ivor Software Ltd would not be able to provide the Software on an economic basis without such limitations.
9.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
9.7 Amendment or Modification. This Agreement is subject to change without prior notice from Ivor Software Ltd. You shall be deemed to have accepted any changes or modifications by Your continuing use of the Software. Additionally, this Agreement may not be amended, modified, or supplemented by You in any manner, except by an instrument in writing signed and agreed to by Ivor Software Ltd.
9.8 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by Ivor Software Ltd in its sole discretion; (b) by You with the prior written consent of Ivor Software Ltd; and (c) as set forth in Section 2.2 (License Transfers). In addition, Ivor Software Ltd may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that Ivor Software Ltd will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.
9.9 Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
9.10 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
9.11 Notices. All notices or questions relating to this Agreement shall be directed to: Ivor Software Ltd, 12 Pitt St, Auckland City Centre, New Zealand.
9.12 Export Controls. The parties agree to comply fully with all Applicable Laws, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the Software mentioned in this Agreement.
9.13 Time-Limited Claims. Regardless of any Applicable Law to the contrary, You agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.
Your continue use of Ivor ERP Framework or its Point-Of-Sale system or any website built based on this framework is deemed acceptance to this software license.