The following expressions shall have the following meanings: -
1.2. Incorporation Of Terms
These Terms shall apply to all Software and Services supplied by WHS to the Licensee. In the event of any ambiguity between these terms and the provisions of the Software Licence Agreement, the terms of the Software Licence Agreement Agreement shall apply.
For a period of one (1) year from the date of delivery of the software (the " Maintenance Term"), WHS will supply the services described in Section 5 below ("Services") to the Licensee with respect to the products for which WHS has granted a license to the Licensee pursuant to a software license agreement (the "Software License Agreement") by and between WHS and the Licensee. The Maintenance Term may be renewed annually. The Licensee will be invoiced for services annually in advance. The Maintenance Term shall be renewed once payment for the renewed Maintenance Term is received by WHS. The renewed Maintenance Term shall commence upon the day following expiry of the expired Maintenance Term. To continue to receive Software Support you must have in effect a valid Software Support Agreement.
3.1. The Service Fee will be a sum in accordance with the then current rates charged by WHS.
3.2. Travel and any accommodation expenses for additional services which are not covered by the terms of this Agreement will be charged at WHS's then current rates.
4.1. If the Licensee is late in the payment of any sum due to WHS pursuant to this Agreement or any other Agreement between WHS and the Licensee WHS may at its discretion suspend performance under this Agreement or any other related agreements.
5.1. During the Maintenance Term:
5.2. For the avoidance of all doubt Maintenance & Technical Support Services shall not include the diagnosis and rectification of any fault arising from:-
5.3. WHS may on the request of the Licensee provide support notwithstanding that the fault results from any circumstances described in clause 5.2 above or that the support requested is not covered by the terms of this Agreement. WHS shall in such circumstances be entitled to charge for such service at WHS's rates from time to time for work undertaken on a time and materials basis or fixed quote at the discretion of WHS.
5.4. Without prejudice to clauses 5.2 and 5.3 above WHS shall be entitled to levy reasonable charges if support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee's request to have been unnecessary.
There are no warranties, express or implied, by operation of law or otherwise, relating to products or services furnished to licensee hereunder. WHS specifically disclaims and excludes all implied warranties, including without limitation those of fitness for a particular purpose, merchantability or non-infringement. No representation or other affirmation of fact, whether made by WHS employees or otherwise, which is not contained in this agreement will be deemed to be a warranty by WHS for any purpose or give rise to any liability of WHS whatsoever.
In no event (i) shall WHS's maximum liability for all damages exceed actual direct damages caused by the specific product or service complained of, (ii) shall WHS's maximum liability for all damages exceed the total amount of fees paid hereunder, or (iii) shall WHS be liable for incidental, consequential, exemplary, special or indirect damages (including but not limited to lost business profits and the loss, damage or destruction of data) even if WHS has been advised of the possibility of the same. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.
7.1. WHS may terminate this Agreement if the Licensee fails to comply with the Terms or any related agreement between WHS and the Licensee.
7.2. The Licensee may terminate this Agreement if WHS fails to comply with the Terms or any related agreement between WHS and the Licensee provided that WHS has been given 30 days prior written notice during which WHS has failed to correct the breach where such breach is capable of remedy.
7.3. This Agreement shall be terminated with respect to any particular item of Software on the date any such Software Licence expires or the Licence is terminated for any reason.
WHS and Licensee are independent parties, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.
Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf.
All notices given under this Agreement shall be effective upon receipt and shall be in writing and sent to the address of the other party set out at the beginning of this Agreement or to any replacement address of which the other party has been given notice in accordance with this Section.
In no event shall either party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such party. This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties.
This Agreement may be modified only by a written instrument signed by an authorized representative of each party. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision shall be without effect to the extent of the void ness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for non-payment, more than two years after the date the last payment was due.
This Agreement shall be governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand.