Terms of Service
- Panther is the exclusive owner of valuable intellectual property rights relating to certain website development software.
- Panther agrees to, in accordance with the provisions of this Agreement, grant to the Agency a non-exclusive license to use the Intellectual Property Rights to develop websites for its clients and grant to its clients sublicenses permitting those customers to use and access the Software to manage the websites developed by the Agency.
- In this Agreement including the Introduction, the following words have the following meanings:
- “Agency” means the advertising and/or marketing agency that has completed the Sign Up Process to become an Agency contracting with Panther in respect of the Software;
- "Agreement" means this agreement;
- “Business” means the marketing, sale and sub-licensing of the Software;
- "Business Day" means a day on which registered banks are open for ordinary over-the-counter business in Auckland, New Zealand, excluding Saturdays, Sundays and statutory public holidays in Auckland, New Zealand;
- "Commencement Date" means the date that both parties have signed this Agreement;
- "Confidential Information" means all information of any kind, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, which relates to Panther or its Business and related affairs and includes information relating to:
- business operations, business strategies, business plans, commercial information, marketing plans, technologies, trade secrets, new product initiatives, methodologies, supplier lists, customer lists, details of client relationships, pricing structures, costs and profit margins, research plans, methods, promotional strategies, planned improvements, past, present and future research and development, regulatory compliance documents and applications, unpublished data from crash-testing the Licensed Products, employees details & records, designs, specifications, software content, code, sequences, source code, and object code; and
- The terms of this Agreement;
- but does not include any information that:
- The parties agree in writing to exclude from the terms of this Agreement;
- Is, at prior to the date of disclosure, already in the public domain or publicly available, or that subsequently enters the public domain or becomes publicly available;
- Is, at the date of disclosure, already properly in the possession of the Agency; or
- Is, after the date of disclosure, received in good faith by the Agency from a third party who is lawfully in possession of that information and has the right to disclose it.
- Copyright” means the copyright in all copyright works (as defined in the Copyright Act 1994) relating to the Intellectual Property Rights.
- “End User Agreement” means the end user agreement approved from time to time by Panther and available for download from Panther’s website setting out the terms on which the Agency may offer the website development services to its customers and sublicense the use of and access to the Software.
- "Improvements" means any improvement, adaptation, addition, modification, development or amendment to the Intellectual Property Rights, the Software, and any Licensed Products including, without limitation, any patentable inventions and unpatentable know-how and any new product(s) developed by the Agency pursuant to the related Software Development Agreement between the parties;
- Intellectual Property Rights" means all industrial and intellectual property rights whether conferred by statute, at common law or in equity, relating to:
- The Software, including, but not limited to, all Copyright and similar rights which may subsist or may hereafter subsist in the subject matter of same;
- All Improvements.
- All Confidential Information;
- All rights in relation to any inventions (including all patents, rights to file for patents and any patent applications);
- Trade secrets, Know-How and show-how; All rights in relation to designs (whether or not registrable); All rights in relation to registered and unregistered Trade Marks; and
- "Know-How" means all information, knowledge, experience, formulae, data and designs in the possession or control of Panther, relating directly to the Software;
- “Software” means the website development software developed by and/or licensed to Panther, including but not limited to any software content, code, sequences, source code, object code, engineering characteristics, computer programming and related algorithms; together with any additional details described in the Website;
- “Sign Up Process” means the process followed by the Agency in signing up to become a licensee including agreeing to be bound by the terms of this Agreement;
- “Trade Marks” means any unregistered trade marks and trade mark applications or registrations relating to the Software, the Licensed Products and the Business that the parties may agree in writing from time to time; and
- “Website” means Panther’s website.
In this Agreement, unless the context otherwise requires:
- References to paragraphs and clauses are to paragraphs and clauses of this Agreement;All headings have been inserted for convenience only and do not limit or govern its construction or interpretation;
- Words importing the singular are deemed to include the plural and vice versa; words importing any gender are deemed to include all other genders; and words importing persons are deemed to include all associations, authorities and bodies, corporate or unincorporated;
- References to any legislation or to any section a provision of any legislation, include any statutory modification or re-enactment or any substituted statutory provision and regulations, bylaws and other statutory instruments issued under such legislation;
- References to the words including and include a be construed without limitations; and
- This Agreement will not bind either party until it has been signed by both parties.
GRANT OF RIGHTS
- Panther grants to the Agency an exclusive licence:
- Under the Intellectual Property Rights to distribute, promote, use and supply the Software;
- To use any specified Trade Marks in relation to the Software; and
- To use the Software in the development of websites for its customers.
- Panther will make available to the Agency such Confidential Information as Panther reasonably considers necessary or useful for the successful implementation and operation of the licence relating to the Software.
- The Agency expressly acknowledges that it is not licensed under the Intellectual Property Rights to develop or sell any technology, product or outcome other than those which directly relate to the Software. Without prejudice to the generality of the foregoing, Panther reserves all rights under the Intellectual Property Rights and in respect of this Agreement to nominate and instruct the Agency in respect of its use of the Intellectual Property Rights.
- The rights granted in clause 3.1 may not be assigned in whole or part without the express written consent of Panther. The sale and acquisition of the shares of the Agency, such that there is a change in majority or controlling shareholding, will be deemed an assignment for the purpose of this clause and will require consent from Panther.
- The Agency may grant a sub-licence to its customers to use and access the Software provided that:
- That sublicense is granted on the terms set out in the End User Agreement;
- The Agency will ensure that its Customers duly observe and perform their obligations and undertakings under the End User Agreement; and
- That any End User Agreement may terminate with the termination of this Agreement.
- The Agency will remain liable to Panther for all acts and omissions of its customers, as if the relevant acts or omissions were the acts or omissions of the Agency.
- Nothing in this Agreement will constitute any representation that the Intellectual Property Rights do not fall within the scope of any intellectual property rights of any third party.
- At the Panther’s option and direction, the Agency will assign to Panther or to Panther’s nominee any End User Agreements that remain in place upon termination of this Agreement.
- This Agreement will come into force on the Commencement Date upon agreement by the Agency to be bound by the terms of this Agreement (by way of execution of an Agency Contract, otherwise agreeing to be bound or by continuing to contract with Panther as the case may be) and will continue in force until terminated in accordance with this Agreement.
- Panther may terminate this Agreement, without cause, on no less than 90 (ninety) days written notice.
- In consideration for the rights granted under this Agreement, the Agency will pay to Panther the fees that apply to the license to the Software as set out on Panther’s website from time to time.
PAYMENTS TO EXCLUDE TAXATION
- Unless otherwise stated or agreed, all sums payable by the Agency to Panther will be exclusive of all taxes, and will be paid without deduction of any withholding or other taxes unless the Agency is required by law to make such withholding or deduction.
- Within fourteen (14) days of the end of each quarter, the Agency will (if requested by Panther) submit to Panther a statement in writing relating to that quarter ("Royalty Report") setting out the calculation of royalties due and payable to Panther by the Agency for that quarter and/or such information as Panther shall reasonably request.
- Panther or its duly appointed agent shall be entitled to audit the accounting records of the Agency at any time upon reasonable notice. In the event that an audit of accounting records reveals a discrepancy in the royalties or other fees paid by the Agency from those payable under this Agreement, the Agency will immediately make up any shortfall and reimburse Panther for all reasonable expenses incurred in relation to the audit.
LICENSEE’S PERFORMANCE OBLIGATIONS
- The Agency will use reasonable endeavours to create demand and fill the demand created for the Software while this Agreement is in force.
- All advertising and promotion of the Software and the Agency’s other service offering (including web development) by the Agency must be factual and conform to the highest standards of ethical advertising.
- The Agency shall make no representations or warranties in connection with the Software except as expressly authorised by Panther.
- Panther or its duly authorised agent will be entitled to inspect the operations of the Agency’s business and promotion of the Software, including but not limited to entering the Agency's premises for the purpose of inspection.
- If Panther at any time discovers any non-compliance with this Agreement, Panther shall be entitled to terminate this Agreement in accordance with clause 14.1.
SALES AND MARKETING
- The Agency will bear all costs for operating its business including the costs of marketing and distributing the Software and any costs for obtaining any regulatory approval.
INTELLECTUAL PROPERTY OWNERSHIP & IMPROVEMENTS
- Panther warrants that it is the exclusive licensee of the Intellectual Property Rights and is entitled to enter into this Agreement, but makes no other warranty
- In the event any of the Intellectual Property Rights are held to be invalid, Panther will be under no obligation to compensate the Agency, refund any royalties paid, or reduce the royalty rate
- The Agency may not directly or indirectly itself or as an agent, employee, contractor, director shareholder, trustee or representative:
- Disassemble, reverse engineer or otherwise seek to copy or change the Software; or
- Compete with Panther in the provision of the Software to any third party other than pursuant to the terms of this Agreement.
- All Intellectual Property Rights in any Improvements devised or created by the Agency in breach of clause 10.3 or to which the Agency becomes entitled by a breach by its customers of the End User Agreement will be owned by Panther and will vest in Panther effective from the date that such Improvements are devised or (if the Intellectual Property Rights do not vest in the Agency upon creation) the date that the Agency becomes entitled to those Intellectual Property Rights.
- The Agency shall do all things and sign all documents to give effect to Panther's ownership of the Intellectual Property Rights including procuring ownership of any Intellectual Property Rights relating to any Improvements by third parties.
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
- The Agency will give notice in writing to Panther of any infringement or threatened infringement of the Intellectual Property Rights which comes to its notice.
- In the event of any infringement of the Intellectual Property Rights, if Panther thinks fit, Panther may take action to stop the infringement.
- The Agency may not take action on its own account in its own name in respect of any infringement except with the express written consent of Panther. The Agency indemnifies Panther against any and all costs awarded against Panther resulting from action taken by the Agency.
- In any action concerning infringement of the Intellectual Property Rights, the Agency will provide to Panther with such reasonable assistance as may be reasonably required for the action.
- In the event that any infringement of copyright, patents, trade mark, industrial designs or other intellectual property rights affecting the operation, manufacture or marketing of the Software occurs or may occur, Panther may at its sole option and expense:
- Procure for the Agency the right to marketing and sublicensing the Software or the infringing part thereof;
- Modify or amend the Software or the infringing part to become non-infringing; or
- Terminate this Agreement.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
- The Agency will treat all Confidential Information in the strictest confidence regardless of whether that information was gained before or after the Commencement Date.
- The Agency will fully and effectively indemnify Panther against all losses, costs, damages, claims, or liabilities which Panther may incur as a result of any unauthorised use or disclosure of all or part of the Confidential Information by the Agency, its directors, employees, advisors, agents, contractors or sub-licensees.
- In the case of any dispute as to whether information is Confidential Information, the onus will be on the Agency to prove that the information is not Confidential Information.
TERMINATION FOR CAUSE OR INSOLVENCY
Panther may, by notice in writing to the Agency, terminate this Agreement if any of the following events will occur
- If the Agency is in breach of any term, condition or provision of this Agreement and fails to remedy such breach within 30 (thirty) days of having received written notice of such breach.
- If the Agency, being a body corporate presents a petition or has a petition presented by a creditor, for its winding up, or convenes a meeting to pass a resolution for voluntary winding up, or enters into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), calls a meeting of its creditors or has a receiver of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts.
- Panther may terminate this Agreement immediately by notice in writing to the Agency if:
- Any monies payable by the Agency to Panther remain unpaid for a period exceeding 30 (thirty) days after becoming payable;
- The Agency causes, or fails to take all reasonable action to prevent, a non-confidential disclosure of Confidential Information; or
- The Agency assigns this Agreement in whole or in part, or there is a change in the majority or controlling shareholding of the Agency, without the express written consent of Panther.
CONSEQUENCES OF TERMINATION
- On termination or expiry of this Agreement:
- The Agency will at the request of Panther promptly return to Panther all technical and promotional material in its possession or power relating to the Software and all copies of such material to the extent that such remains confidential:
- Panther will have the right (but no obligation) to acquire from the Agency all or part of the Agency's unsold stocks of any products relating to the Software at the date of termination;
- All rights and licences granted by Panther to the Agency will cease;
- The Agency will refrain in future from developing, researching or marketing any products which require utilisation of all or part of the Intellectual Property; and
- All sub-licenses granted under this Agreement shall immediately be deemed to have been assigned to Panther or its nominee.
- Termination or expiry of this Agreement however arising will be without prejudice to:
- Panther's right to recover any fees then remaining due; and
- The remedy of either party in respect of any breach of this Agreement.
- The Agency's obligations regarding confidentiality and non-disclosure of the Confidential Information, which will survive termination and endure until all the Confidential Information enters the public domain through no fault of the Agency.
- The covenants, conditions and provisions of this Agreement which are capable of having effect after termination of the Agreement will remain in full force and effect following said termination.
LIMITATION OF LIABILITY AND INDEMINITY
- Panther makes no warranties whatsoever in relation to the Intellectual Property Rights except as required by law.
- Panther excludes any and all liability for indirect or consequential loss or damage, loss of profits, loss due to business interruption, and loss of business opportunity suffered by the Agency as a result of the operation of this Agreement or on behalf of the Agency or any of its sub-licensees.
- The Agency will at all times indemnify and keep indemnified Panther against all or any costs, claims, damages or expenses incurred by Panther or for which Panther may become liable, in respect of any product manufactured or marketed by the Agency or any sub-licensee relating to the Software, Licensed Products or Business.
- If Panther is determined by a competent court or authority to be liable to the Agency or any other person, the award, damages, and costs for which Panther may be held liable shall be limited to an aggregate total of TEN THOUSAND NEW ZEALAND DOLLARS (NZ$10,000).
- The Agency shall maintain adequate product liability and public insurance to cover potential liability
- Of the Agency arising out of this Agreement, including the application of the Intellectual Property Rights, use of the Software or actions carried out by its sub-licensees;
- Of Panther arising from breach of this Agreement or any act or omission of its employees, agents, officers or contractors;
- For any claim in relation to the Agency’s operation of its business; and
- Will provide Panther, upon request, with evidence of such policies.
NO BREACH FOR FORCE MAJEURE EVENTS
- If either party is affected by Force Majeure, it will immediately notify the other party of the nature and extent of that Force Majeure
- Neither party will incur liability in respect of anything that might otherwise constitute breach of this Agreement arising by reason of any Force Majeure notified to the other party.
- If the Force Majeure in question prevails for a continuous period in excess of six months, the parties will negotiate in good faith as to how the effects of the Force Majeure can be fairly and reasonably alleviated.
INVALID TERMS SEVERABLE
- In the event that any of the terms, conditions or provisions in this Agreement will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions or provisions which will continue to be valid to the fullest extent permitted by law.
- Any notice or other communication under this Agreement must be (i) in writing; (ii) marked for the attention of the person or office holder (if any) from time to time designated for the purpose by the recipient; and (iii) directed either by email or personal delivery to the addresses provided, in respect of Panther, on Panther’s website and, in respect of the Agency, using the information inputted by the Agency during the Sign Up Process:
- No communication is effective until received. A communication will, however, be deemed to be received by the recipient:
- In the case of email, on the business day on which it is dispatched or, if dispatched after 5.00pm (in the place of receipt) or on a non- business day, on the next business day after the date of dispatch; or
- In the case of personal delivery, when delivered.
- The parties agree to immediately notify each other of any dispute, and to initially attempt to settle any dispute arising out of this Agreement by full and frank discussions.
- In the absence of any agreement within 30 (thirty) days of a dispute being notified, the matter will be referred to a suitable mediator to be agreed upon between the parties. If the parties are unable to agree upon and appoint a mediator within 60 days of the dispute being notified, either or both parties will immediately ask the Arbitrators' and Mediators' Institute of New Zealand Inc. to appoint a mediator and the mediation will be held in Auckland, New Zealand.
- The parties agree that all costs and expenses of the mediation will be born equally between the parties to the dispute.
- The mediation will be terminated by:
- The signing of a settlement agreement by the parties; or
- Notice to the parties by the mediator, after consultation with the parties, that further efforts at mediation are no longer justified; or
- Notice by one or more of the parties or the mediator that further efforts at mediation are no longer justified; or
- The expiry of 60 (sixty) working days from the mediator's appointment, unless the parties expressly consent to an extension of that period.
- If the mediation is terminated as provided in clause 20.4.1 - 20.4.4, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, will be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law. The arbitration will be by one arbitrator, to be agreed upon by the parties. If the parties fail to agree upon an arbitrator within 21 (twenty-one) days, an arbitrator will be appointed by the President of the Arbitrators and Mediators Institute of New Zealand Inc. and the arbitration will be held in Auckland, New Zealand, in accordance with the New Zealand Arbitration Act 1996.
- The parties agree that all costs and expenses of the arbitration will be borne equally between the parties to the dispute.
- The parties agree that any decision by the arbitrator will be fully and finally binding and each party hereby waives any right to further appeal or redress in any court or tribunal, except solely for the purpose of obtaining execution of the arbitrator's judgment.
- Nothing in this Agreement will prevent a party from issuing proceedings in relation to any dispute where the nature of the dispute is such that the party requires urgent interim relief.
NEW ZEALAND LAW GOVERNS
- This Agreement and any disputes arising in relation to it will be governed by and construed in all respects in accordance with the laws of New Zealand.
- This Agreement sets forth the entire agreement and understanding between the parties relating to subject matter contained herein and no modifications or amendments hereto will be effective unless made in writing and signed by both parties.
- Subject to any provision to the contrary, this Agreement will inure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers.
- The parties agree to perform all acts and things and to execute and deliver all documents necessary or appropriate to give effect to the intent and purpose of this Agreement.
- Any waiver by either party of any rights arising from any breach of the terms of this Agreement will not be construed as a continuing waiver of other breaches of the same or other terms of this Agreement by the other party.
- Nothing in this Agreement will create a partnership or agency or joint venture between the parties.
- This Agreement may be executed in original form and/or by facsimile transmission in any number of counterparts and all counterparts taken together will constitute one and the same instrument.