LEAPTHOUGHT END USER LICENCE AGREEMENT

IMPORTANT. READ CAREFULLY BEFORE INSTALLING THIS SOFTWARE: This End User Licence Agreement (“EULA”) is a legal and binding agreement between “You” (either an individual or a single entity) and LeapThought NZ Limited (being a company registered in New Zealand with registered office at Level 1, 128 Parnell Road, Auckland, New Zealand), its subsidiaries, affiliates and agents (collectively, “LeapThought”) for the Software.

LeapThought licenses use of the Software to You on the basis of this EULA. LeapThought does not sell the Software to You; LeapThought remains the owner of the Software at all times.

By accepting this EULA, You agree to the terms of this EULA which will bind You, Your employees and Your other users of the Software. The terms of this EULA include, in particular, limitations on liability in clause 6 and 8 below. If You do not agree to the terms of this EULA, do not install, access or use the Software, and return it to LeapThought. 

For the purposes of this EULA:

1. “Fees” means the total of Licence Subscription Fee and any Support Fee payable by You as set out in the Order Form.
2. “Order Form” means the order form or purchase order entered into by You for the relevant LeapThought software product and/or service.
3. “Software” means the CitiZen software specified in your Order Form. The Software also includes any updates and supplements to the original Software which may be provided to You by LeapThought. Any software provided along with the Software that is associated with a separate end-user license agreement is licensed to You under the terms of that license agreement. 

1. GRANT OF LICENSE 
In consideration of payment by You of the relevant licence fee for the Software (the “Licence Subscription Fee”), LeapThought grants to You a non-exclusive license to use the version of the Software provided to You by LeapThought, solely for your own internal business purposes and subject to the terms of this EULA. The Software must be installed in the same country from which the applicable order for the Software originated. Your use of the Software shall also be in accordance with the material and documentation accompanying the Software (the “Documentation”). Your license rights as specified herein may be non-perpetual (“Non Perpetual Licence”), and limited to a subscription period. You may allow your agents and contractors to use the Software for your internal business purposes and You are responsible for their compliance with the terms of this EULA in such use. The EULA is deemed accepted when LeapThought makes the Software available to you. If You are past due on any Licence Subscription Fee to LeapThought or any licenced LeapThought resellers or distributors (“Resellers”) your rights to use the Software are suspended until such time as You have paid such outstanding Licence Subscription Fee. 

The Software may be initially provided to You for a trial or an evaluation which allows access to the Software with limited functionality (i.e. specific to a subject area of your business). You agree to be bound by the Licence Configuration terms which LeapThought may present to You as part of licensing the Software. 

All rights not expressly granted in this EULA are reserved by LeapThought.

 
2. OTHER RIGHTS AND LIMITATIONS

2.1 Limitations on Reverse Engineering, Decompilation, and Disassembly

You shall not cause or permit the reverse engineering, decompilation, or disassembly of the Software or any portion thereof, except and only to the extent that such activity is expressly permitted by applicable law. 

2.2 Specific Use

All code and other materials provided with LeapThought products may only be used with those specific LeapThought products. 

2.3 Marks

This EULA does not grant You any rights in connection with any trademarks or service marks of LeapThought. You shall not remove or modify any Software markings or any notice of LeapThought’s proprietary rights. 

2.4 Third Party Use

You shall not rent, lease or lend the Software, or make the Software available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted in writing by LeapThought). 

2.5 Benchmarks and Competitive Use

You shall not disclose results of any Software benchmark tests without LeapThought’s prior written consent. The Software may not be used for purposes of competitive analysis or development of a competitive product. 

2.6 Proprietary Rights

All rights, title, interest and copyrights in and to the Software are owned by LeapThought or its licensors. 

3. SUPPORT SERVICES
This EULA does not entitle You to receive any enhancements, improvements or modifications to the Software. LeapThought may provide You with Support Services if specified in the Order Form in which case the Support Term set out below shall apply. Any enhancements, improvements, modifications or other supplemental software provided to You as part of Support Services shall be considered part of the Software and subject to the terms and conditions of this EULA. With respect to technical information You provide to LeapThought in connection with the Support Services, LeapThought may use such information for its business purposes, including for product support and development. 

4. PAYMENT TERMS
Unless otherwise provided, all applicable Fees are due and payable in advance of date of invoice and will be exclusive of GST. Once accepted by You, and except as otherwise specified, your Order Form(s) to LeapThought or any Reseller for Software, and/or other LeapThought products and services becomes a non-cancellable order, and the related Fees become due and non-refundable. You have not relied on the future availability of any software or updates in ordering or obtaining the Software from LeapThought. 

5. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
Notwithstanding anything to the contrary, the Software is provided to You “as is” with no warranty of any kind. LeapThought warrants for 30 days after the start of your subscription, if applicable (“Warranty Period”) that the Software will when properly used and on an operating system for which it was designed, function in all material respects in accordance with the Documentation. 
You must notify LeapThought of any Software warranty deficiency during the applicable Warranty Period. 
LeapThought does not warrant or guarantee that the Software will meet your requirements, will operate error-free or uninterrupted or that LeapThought will correct all errors in the Software. To the extent permitted by law, these warranties are exclusive and LeapThought expressly disclaims any express or implied warranties or conditions, including warranties or conditions of merchantability, title, non-infringement, quality and fitness for a particular purpose. For any breach of the above warranties, your exclusive remedy and LeapThought’s entire liability, shall be, at LeapThought’s discretion, as applicable, for the Software,

1. the correction of errors in the Software that cause breach of the warranty; or
2. termination of your license for the Software and refund of the licence subscription You paid to LeapThought for the specific Software (in the case of subscriptions, such refund shall be limited to the then current subscription period).

6. LIMITATION OF LIABILITY
LeapThought shall not be liable for any indirect, incidental, special, punitive or consequential damages, or any loss of profits, revenue, data or data use, arising from this EULA or from the use of or inability to use the licensed software, even if LeapThought has been advised of the possibility of such damages. Except for death or personal injury to persons caused by the negligence of LeapThought (where no limit applies), LeapThought’s maximum liability for any damages arising out of or related to this EULA, the use of the Software, whether in contract or tort, or otherwise, shall be limited to the Licence Subscription Fee you paid to LeapThought for the deficient Software under this EULA. Except for actions relating to death or personal injury to persons caused by the negligence of LeapThought, no action, regardless of form, arising out of or relating to this EULA or the Software may be brought by You against LeapThought more than two years after the cause of action has accrued.

7. TERMINATION
This EULA and your license to use the Software shall terminate automatically if You fail to comply with the terms of this EULA. No notice will be required by LeapThought to effect a termination. If this EULA is terminated, You shall pay within 30 days all amounts owed to LeapThought which have accrued prior to the end of this EULA. If You are in default of this EULA, or if the EULA is terminated, You may no longer use or continue to possess the Software.

Notwithstanding anything to the contrary, your license to the Software will terminate immediately if You become insolvent or bankrupt or enter into any arrangement or composition with your creditors or if a receiver, trustee or administrator is appointed to operate or otherwise direct your business or assets. Provisions of this EULA which survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.

8. INDEMNIFICATION
If someone makes a claim against You that the Software provided to you by LeapThought under this EULA and used by You according to the documentation for the Software infringes that party’s intellectual property rights, LeapThought will defend, indemnify and hold you harmless against the claim provided You:

1. notify LeapThought promptly in writing, not later than 30 days after You receive notice of the claim;
2. give LeapThought sole control of the defence and any settlement negotiations; and
3. give LeapThought the information, assistance and authority as required to defend against or settle the claim. 

If LeapThought believes or it is determined that the Software may have violated someone else’s intellectual property rights, LeapThought may choose in its discretion to:

1. modify the Software to be non-infringing;
2. obtain a license for You to allow for continued use; or
3. terminate the license for the Software and require its return, and refund a prorated (based on a five year life) portion of any Licence Subscription Fee You may have paid for the Software.

LeapThought has no obligation to indemnify, defend or hold you harmless:

1. if you alter the Software or use it outside the scope of the Licence Configuration, this EULA or the use permitted by the Documentation;
2. if You continue to use a version of the Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Software which was provided to You;
3. to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by LeapThought; or
4. to the extent an infringement claim is based upon the combination of the Software with any products or services not provided to You by LeapThought. 

This section provides your exclusive remedies and LeapThought’s exclusive liability for any infringement claim or damages. 

You will defend, indemnify and hold LeapThought and its licensors harmless against:

1. any claims or actions by any third party (including any of your customers) in connection with the Software or your use thereof, or this EULA, except with respect to matters which are covered by LeapThought’s indemnification obligations as provided above; and
2. any loss or damage arising from a breach by You of this EULA, or any action of any of your agents or contractors with respect to the Software for which You are responsible under this EULA. 

9. NONDISCLOSURE
By virtue of this EULA, You may have access to information that is confidential to LeapThought (“Confidential Information”), including the Software, terms and pricing under this EULA, any other documents from LeapThought regarding the Software and/or this EULA, and all other information clearly identified as confidential. You agree to keep such Confidential Information confidential and not to disclose such information to third parties without the express written consent of LeapThought.
LeapThought may have access to information that is confidential to You.  LeapThought agree to keep such information confidential and not to disclose such information to third parties without the express written consent from You.

10. GOVERNING LAW AND JURISDICTION
This EULA is governed by New Zealand law and the courts of New Zealand shall have non-exclusive jurisdiction in any proceeding relating to this agreement. If You have a dispute with LeapThought or if you wish to provide a notice under the Indemnification section of this EULA, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to LeapThought.

11. OTHER
11.1 Communications

All notices and requests in connection with this EULA shall be deemed given as of the day they are received in writing either by messenger, delivery service, or in the mail, postage prepaid, certified or registered, return receipt requested. Billing-related notices to you shall be addressed to the applicable billing contact as designated by you. All other notices to you shall be addressed to the applicable contact as designated by you. By accepting this EULA, you explicitly agree LeapThought is permitted to send you future electronic communications regarding LeapThought products, services and other offerings.

11.2 Transfer Restrictions

You shall not assign or otherwise transfer this EULA or any portion of the Software, or any copies thereof or any of your interests in any of the foregoing, without LeapThought’s prior written consent. For purposes of this EULA, a merger, consolidation or other corporate reorganisation or a transfer or sale of a controlling interest in your stock, or all or substantially all of your assets, shall be deemed to be an assignment. This EULA will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs and permitted assigns. 

11.3 Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility or sabotage; act of God; Internet, telecommunication or electrical outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party (collectively, “Force Majeure Events”). We both will use reasonable efforts to mitigate the effect of any Force Majeure Events. If such Force Majeure Event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse your obligation to pay for Software as provided.

11.4 Use of Licensee Name

You agree LeapThought may include your company name in lists, presentations, webpages and/or displays used by LeapThought which generally describe similar customers of LeapThought upon written consent from You.

11.5 Entire Agreement

This EULA and the information which is incorporated into this EULA by written reference including any Order Form, is the complete agreement for the Software provided to You, and this EULA supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Software. 

The terms of this EULA and any corresponding Order Form shall supersede the terms contained in any other non-LeapThought ordering document or correspondence, regardless of when such ordering document is received or if LeapThought signs such ordering document, and no terms included in any such purchase order or other non-LeapThought ordering document or correspondence shall apply to LeapThought or to the Software. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will continue in effect. This EULA including any Order Form shall not be modified and the rights and restrictions contained therein shall not be altered or waived except in a writing signed by authorized representatives of You and of LeapThought.

THE FOLLOWING TERMS (“SUPPORT TERMS”) SHALL ONLY APPLY WHERE YOU HAVE PURCHASED SUPPORT SERVICES IN CONNECTION WITH THE LICENSED SOFTWARE

1. SUPPORT SERVICES It is hereby agreed between You and LeapThought that in consideration of the payment by You of the Support Services Fee, LeapThought undertakes to provide the maintenance and support services in respect of the Software as detailed in your Order Form (“Support Services”). The Support Services will be provided by LeapThought to You for the period specified in your Order Form and subject to the following conditions:

1.1 The Support Services are provided in accordance with the LeapThought Technical Support Policies which shall be incorporated into these Support Terms. You should review the LeapThought Technical Support Policies prior to using the Support Services. You may access the current version of the LeapThought Technical Support Policies via the LeapThought website, or through your Account Manager. 

1.2 Without limiting but in addition to clauses 6 and 8 of the EULA, if and to the extent permitted by law and notwithstanding any other provisions of these Support Terms:

(a) no warranty, condition or other term, express or implied, statutory or otherwise, shall apply in respect of the Support Services unless and except to the extent expressly contained in these Support Terms, 

(b) LeapThought shall have no liability for any consequential loss or damage (including but without limitation, business interruption or loss of profits) arising in respect of or in connection with the Support Services; and

(c) any liability to which LeapThought might otherwise become subject shall, in aggregate, be limited to the amount paid by You to LeapThought for the Support Services under these Support Terms up to the date of the event giving rise to the loss.

1.3 In additional to the rights set out in clause 7 of the EULA above, if either party fails to perform its obligations under these Support Terms and if such failure continues for a period of thirty (30) days after written notice, the other party shall have the right to terminate the Support Service immediately upon written notice.

1.4 LeapThought may terminate the Support Services immediately by written notice to You if:

(a) You commit a material or persistent breach of these Support Terms which You fail to remedy (if remediable) within 14 days of receiving written notice requiring you to do so; or

(b) You become bankrupt, become the subject of any liquidation action in any jurisdiction or become the subject of any action under which a receiver or administrator is appointed by a court, regulatory agency or other authority.

1.5 If Support Services for the Software detailed on your Order are terminated and/or not purchased, You may not update any unsupported Software with new versions.

1.6 Nothing in these Support Terms shall constitute a partnership or employment or agency relationship between LeapThought and You.