IMPORTANT NOTICE: You must, on behalf of the End User, accept this licence agreement before using Boss. If the End User does not accept the terms of this licence agreement, you should promptly contact Verb or the website designer you dealt with for a refund of the licence fees paid. This means that you must not use Boss and if a copy of Boss has been delivered to you, you must promptly delete that copy. The End User may be required to certify to that effect. The End User is deemed to have accepted this licence agreement if Boss is accessed, installed or used in any way.
This licence agreement is between VERB LIMITED having its registered office in Timaru, New Zealand (“Verb”) and the client who ordered and paid for the licence (“End User”)
Verb has developed and owns a suite of software tools known as ‘Boss’ for use in website development and ongoing website maintenance. The End User’s website is to be developed using Boss and the End User wishes to continue using Boss to maintain the website. Verb has agreed to grant to the End User a right to use Boss on the following terms and conditions.
1.1. In this Agreement, unless the context otherwise requires:
“Agreement” means this licence agreement;
“Boss” means the modules of the software known as Boss as described on the website at http://www.verb.co.nz/boss/ for which the End User has paid the relevant licence fee including all updates and modifications as released from time to time for which all applicable fees have been paid by the End User;
“Business Day” means a day that is not a Saturday, Sunday or statutory holiday in Timaru;
“Designer” means the website designer who ordered Boss for the End User and who is engaged by the End User to design and develop a website for the End User;
“Intellectual Property” means copyright, patents, designs, trade marks, trade names, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property.
Grant of Licence
2.1. Verb grants the End User a personal, non-exclusive, non-assignable licence to use Boss. The End User may permit the Designer to use Boss provided that the End User is responsible for ensuring compliance by the Designer with the terms of this Agreement.
2.2. The licence granted under clause 2.1 will commence on delivery of Boss to the End User and continue while the End User continues to pay all applicable fees for use of Boss or until this Agreement is terminated under clause 8, whichever occurs earlier.
2.3. The End User must not, nor may it permit any other person to:
(a) use Boss for any illegal purposes or for any purposes which directly or indirectly contravene any legislation;
(b) copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance Boss;
(c) alter, remove or tamper with any trade marks, any patent or copyright notice, or any confidentiality, proprietary or trade secret legend or notice, or any numbers, or other means of identification used on or in relation to Boss;
(d) make any of Boss available to any person other than its employees or the Designer without the prior written consent of Verb; or
(e) do any act which would or might invalidate or be inconsistent with any Intellectual Property of Verb.
The End User must use Boss for generating its own website only and use is limited to one website.
3.1. Where the licence option selected by the End User includes provision of updates, Verb will provide updates to the End User as and when updates are made generally available.
Fees and payment
4.1. Verb’s standard pricing applicable at the time of order will apply to all orders of Boss by the End User.
4.2. All sums payable by the End User must be paid by the 20th of the month following receipt of invoice, in full without set-off or counterclaim and, except to the extent required by law, free and clear of any deduction on account of tax or otherwise.
4.3. If the End User fails to pay any amount due under this Agreement, Verb may without prejudice to its other rights charge interest on the unpaid amount at the rate of 10% from the due date until payment in full is received.
4.4. All fees and charges are exclusive of goods and services taxes, value-added taxes, or other sales taxes, which shall be added at the applicable rate.
5.1. Verb is the sole owner of all Intellectual Property rights in Boss.
5.2. Any discoveries, inventions, patents, designs or other Intellectual Property rights arising directly or indirectly out of the performance of this Agreement are or will be the property of Verb and the End User hereby assigns any such rights to Verb.
5.3. The End User must, at Verb's expense, take all such steps as Verb may reasonably require to assist Verb to maintain the validity and enforceability of Verb’s Intellectual Property.
5.4. The End User must notify Verb of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of Boss or the Documentation infringes any rights of any other person, as soon as that infringement or claim comes to the End User's notice. The End User will (at Verb's expense) do all such things as may reasonably be required by Verb to assist Verb in pursuing or defending any proceedings in relation to any such infringement or claim.
5.5. The End User indemnifies Verb against any loss, costs, expenses, demands or liability (whether for direct, indirect or consequential loss or otherwise), and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement or alleged infringement due to use of Boss to generate a website which includes material which breaches that third party’s Intellectual Property rights.
6.1. Verb warrants that:
(a) all Intellectual Property Rights in Boss are owned by Verb;
(b) it has the right and authority to grant this licence to the End User and that the licence does not infringe the Intellectual Property rights of any third party.
6.2. Verb does not warrant that the use of Boss will be uninterrupted or error-free.
6.3. Except as expressly contained in this Agreement, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7.1. Verb may terminate this Agreement immediately by notice in writing to the End User:
(a) on the End User committing any breach of this Agreement that is incapable of remedy;
(b) on the End User failing to remedy any breach of this Agreement that is capable of remedy within thirty (30) days of notice of that breach having been given by Verb to the End User;
(c) on the commencement of liquidation or the insolvency of the End User (except for the purposes of solvent amalgamation or reconstruction) or upon the appointment of a receiver, receiver and manager, statutory manager or trustee of its property or upon an assignment for the benefit of its creditors or upon execution being levied against the other party or upon the other party compounding or making any arrangements with its creditors or being unable to pay its debts in the ordinary course of business.
Consequences of termination
8.1. On termination of this Agreement by Verb in accordance with clause 7, the licence granted in this Agreement will terminate immediately and the End User must cease to use Verb’s Intellectual Property (including Boss) and shall deliver to Verb all copies of Boss that the End User has in its possession or under its control.
9.1. Verb will have no liability or responsibility to the End User for any loss, damage or injury whether arising in contract, tort (including in each case negligence), equity, statute or otherwise which does not flow directly or naturally (that is, in the ordinary course of things) from a breach of this Agreement including, in each case consequential loss of business or profits or other loss. Verb will only be liable for losses (excluding loss of business or profits) which flow directly or naturally from a breach of this Agreement up to a maximum of the fees paid by the End User to Verb in the three months preceding the event giving rise to the claim.
10.1. Implied Terms. Except as set out in this Agreement, all conditions, terms and warranties (including without limitation, warranties and conditions as to fitness for purpose and merchantability) whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
10.2. Consumer Guarantees Act. Where the End User is entering into this Agreement for the purposes of a business, the NZ Consumer Guarantees Act 1993 does not apply.
10.3. Entire agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties. There have been no representations made by Verb to the End User except as expressly set out in this Agreement.
10.4. Assignment. The End User may not assign any of the End User’s rights under this Agreement without Verb’s prior written consent.
10.5. Waiver. No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
10.6. Amendment. No amendment to this Agreement is effective except by agreement in writing signed by both parties.
10.7. Severability. If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
10.8. Form of notices. Notices under this Agreement must be in writing and personally delivered or sent by post to the addresses specified below marked to the attention of the person indicated (or any replacement address or person notified by that party in writing):
Atten: The Manager
PO Box 438, Timaru
End User: address notified to Designer or Verb on ordering Boss
10.9. Receipt of notices. Notices sent by post shall be deemed received three days after posting.
10.10. Disputes. Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, or conduct giving rise to this Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the following procedures:
(a) The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within five Business Days of receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
(b) If the parties are unable to resolve the dispute by discussion and negotiation within 10 Business Days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
(c) The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
10.11. Governing Law. This Agreement shall be interpreted in accordance with the law of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand unless the End User is located in Australia where The law of Queensland will govern this Agreement.
10.12.You agree not to transmit any unsolicited commercial or bulk email. You will not engage in any activity known or considered to be "spamming" or "Mail Bombing".