1-2-1 and Services: Standard Terms and conditions

(please note LiveMail 1-2-Many has slightly different terms as provided to ALL users of 1-2-Many at signing/account activation)

These terms and conditions apply to the material on this website and to all products and services offered by Cumulo9 Limited (LLC) to the party name in Schedule 1 of the agreement for licence, hosting and support of Cumulo9 Products and Services.

The parties agree:
1. Definitions
In this Agreement:

• Additional Services means implementation, template design, training, consultancy and other services specified in Schedule 3;
• Advanced Reports means access by Users to HTML templates as well as the detailed reports generated by the Imprint Server and detailing information such as clicked links, dynamic content impressions, and time of the day.
• Anniversary Date means the Effective Date plus 365 days as well as any subsequent Anniversary Date plus 365 days;
• Basic Reports means the high level traffic tracking report generated by the Imprint Server, providing information on how many emails are sent, to whom, when, and which links (if any) were clicked;
• Customer means the entity listed under this agreement and any subsidiary or associated entity.
• Documentation means all instruction manuals, user guides and other information relating to the Software made available to the Customer by Cumulo9 on or prior to the date of this Agreement;
• Effective Date means the day following the acceptance of the Software by the Customer;
• Fees means the Licence Fee, Support Fee and any other fees set out in Schedule 2;
• Imprint Server means Cumulo9’s tracking application known as Imprint and licensed by Cumulo9 for the benefit of the Customer and its Users for the purpose of collecting data from User’s emails and analysing and reporting on that data;
• Licence means the licence granted to the Customer in accordance with clause 2;
• Licence Fee means the licence fees specified in Schedule 2;
• Payment Date means the 30th day of each month.
• SLA means the Support Service Level Agreement in Schedule 4;
• Software means the software product(s) detailed in Schedule 1 and described in the Documentation supplied to the Customer in machine readable form, and includes all modifications, enhancements, revisions and Updates;
• Support Fee means the support fee set out in Schedule 2;
• Support means the support and maintenance services provided by Cumulo9 in accordance with clause 4;
• Updates means any incremental version of the Software made available to the Customer;
• User means the employees or other authorised personnel of the Customer (including any consultant or contractor) entitled to use the Software under this Agreement.

2. Licence

2.1 With effect from the Effective Date (but subject to payment of any Fees due on the Effective Date) Cumulo9 grants the Customer a 12 months, non-exclusive, licence for the number of Users specified in Schedule 2 (plus any other Users added under clauses 2.5), to use the Software and Documentation solely for the Customer’s internal business purposes and in accordance with the terms of this Agreement.

2.2 The licence granted under this Agreement includes the Customer’s and its Users’ right to access Basic Reports and Advanced Reports generated automatically by the Imprint Server.

2.3 Payment of the Support Fee grants the Customer the right to Support in relation to the Software during the term of this Agreement. The Customer may also purchase Additional Services detailed in the scope of work set out in Schedule 3 on payment of the Additional Fees specified in Schedule 2 (unless stated in Schedule 2 as being incorporated in the Fees).

2.4 This License is for an Initial Term of one year, and may be renewed at the option of the Customer on the first Anniversary Date and subsequent Anniversary Dates for a further 12 months (“Extended Term”) by the Customer giving notice to Cumulo9 at least 90 days before the end of the Initial Term or an Extended Term.

2.5 The Customer may increase the number of Users at any time on notifying Cumulo9 and paying the additional Licence Fee specified in Schedule 2.

3. Parties obligations

3.1 Cumulo9 will:
(a) allow the Customer to access the Software and Documentation from the Effective Date; and
(b) provide Additional Services to the Customer as required.

3.2 Cumulo9 will comply with the Privacy Act 1993 and will institute effective security measures to protect any personal information collected by Cumulo9 in the performance of this Agreement (if any) against unauthorised access, use, loss, disclosure or other misuse.

3.3 The Customer:
(a) will ensure that it will fully comply with the Licence’s terms and conditions; and
(b) agrees to use the Software in accordance with its Documentation.

3.4 The Customer must not:
(a) reproduce, reverse engineer, disassemble or decompile the Software except as expressly permitted by this Agreement; or
(b) make the Software available to any third party (except for a User) for any purpose; or
(c) recreate or copy the Documentation except as reasonably necessary for back-up purposes,; or
(d) compete directly with any other software distributed by Cumulo9.

3.5 The Customer acknowledges that it is entirely responsible for all activities that occur through its use of the Software, and releases Cumulo9 from all claims arising from any misuse of the Software.

3.6 From time to time but not more than twice in any twelve month period, Cumulo9 may request the Customer to provide Cumulo9 with a signed statement detailing the then current number of Customer’s personnel using the Software. Should that number exceed the then current number of permitted Users, Cumulo9 will invoice, and the Customer will pay, the Additional Licence Fee for the additional Users as set out in Schedule.

4. Support

4.1 From the Effective Date, and during the term of this Licence provided that the Customer has paid all Fees due, Cumulo9 will provide Support to the Customer in relation to the Software in accordance with the service level definition set out in Schedule 4. Any subsequent support required can be purchased by the Customer from Cumulo9 at the Additional Services Fee as set out in Schedule 3.

4.2 Support does not include, and Cumulo9 may charge separately (at its Additional Services Fee) for, any services resulting from any failure to use the Software in accordance with the Documentation, or for any problems not directly related to the Software.

4.3 The Customer will:
(a) make all reasonable efforts to investigate and diagnose problems in accordance with the Documentation before contacting Cumulo9 ; and
(b) promptly report to Cumulo9 all program errors it discovers and make all reasonable efforts to provide sufficient information and provide all reasonable assistance to Cumulo9 so as to enable the errors to be replicated.

5. Payment Terms

5.1 The customer will pay to Cumulo9 the Fees and all disbursements and any other charges in accordance with Schedule 2 and otherwise within 14 days of receipt of invoice. Any amount not received by the due date may accrue compound interest of 2.0% per month or part thereof on the overdue amount until fully paid.

5.2 Cumulo9 reserves the right at its own discretion, to pass any overdue debt to a collection agency. Any recovery costs incurred through that process will borne solely by the Customer.

5.3 The Customer shall upon reasonable notice permit Cumulo9’s officers and employees access to those books and records necessary to allow Cumulo9 to verify the correctness of the particulars provided on each Payment Date relating to the License Fee.

5.4 Cumulo9 may review the Fees on each Anniversary Date(s). Any variation to the Fees following such a review shall be no more than the CPI increase for the period.

5.5 The Customer is responsible for payment of all duties or sales taxes in addition to the Fees.

6. Intellectual Property

6.1 The Customer acknowledges that Cumulo9 owns and shall retain all right, title and interest (including all intellectual property rights) in and to:
(a) all of the service marks, trademarks, trade names or any other designations associated with the Software as at the date of this Agreement; and
(b) all copyrights, patent rights, trade secret rights, and other proprietary rights relating to the Software, the Source Code, the Documentation or the Confidential Information.

6.2 Cumulo9 warrants that, to the best of its knowledge and belief, the Software does not infringe any intellectual property right of any other person. If the Software is proven to have infringed any other person’s intellectual property right, Cumulo9 will at its option either procure for the Customer the right to continue using the Software or replace or modify the Software so that it becomes non-infringing. In the event that such replacement and/or modification means that the Software is not fit for purpose by the Customer, the Customer may terminate this Agreement immediately.

6.3 The Customer’s maximum remedy under this clause 6.2, in any case, is limited to 100% of the Fees actually paid by the Customer prior to the time such liability arises.

7. Trade marks and Service marks

7.1 Trademarks: Neither party is granted any ownership in or license to the trademarks, marks, service marks or trade names, or goodwill associated with such marks or names (collectively, “Marks”) of the other party. Neither party shall use the marks or confusingly similar marks in connection with any goods or services other than the Software, or in a manner that dilutes, disparages, or harms the reputation of the party owning such marks. Each party agrees that any goodwill arising from its use of the marks shall inure to the benefit of the party owning such mark who will be the sole and exclusive owner of such goodwill.

7.2 Use of Marks: All advertising and other materials in which Cumulo9’s Marks are used shall be subject to the prior written approval of Cumulo9. Where appropriate, Cumulo9 shall grant generic approval for such use. Whenever a party uses the Mark of the other, such party shall indicate that such Mark is the property of the other party.

7.3 Defence of Trademarks: Neither party will at any time contest, or assist others in contesting, the validity or enforceability of the Marks of the other party or other proprietary rights, or do, cause to be done, or tolerate any act or thing contesting or in any way impairing or tending to impair any said right, title, and interest of such party in such Marks or other proprietary rights.

8. Warranties, remedies and limitations

8.1 Cumulo9 warrants that:
(a) it has full power and authority to license the Software to the Customer; and
(b) when used in accordance with the Documentation, the Software will perform substantially in accordance with its published specifications; and
(c) the Software, Services and Documentation will be provided in compliance with all applicable laws and regulations; and
(d) the Software will not contain any computer viruses, automatic or random expiry dates, “trojan horses”, “worms” “backdoors” or other disabling or malicious codes.

8.2 Cumulo9 does not warrant that the use of the Software will be uninterrupted or error free. Nor does Cumulo9 give any warranties regarding matters outside its reasonable control, including any failure or delay in telecommunications or other services provided by any third party.

8.3 The Customer must notify Cumulo9 of any defects or errors in the Software and Cumulo9 will correct the defect of error in accordance with Schedule 4.

8.4 Cumulo9 may at any time update the Software. Implementation schedules for such changes will be agreed with the Customer so that change management with end clients may be managed. Any updated version of the Software will be subject to the terms and conditions of this Agreement.

8.5 The Customer’s sole and exclusive remedy under the warranty given in clause 8.1(b) will be limited to:
(a) the correction of defects in the Software in accordance with Schedule 4;
(b) a refund of an amount equal to the License Fee paid by the Customer to Cumulo9 under this agreement, if Cumulo9 is unable to rectify a defect or error in the Software; and
(c) the remedies available under clause 8.8 of this Agreement.

8.6 Except as expressly set out in this clause 8, all representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the Software or the Documentation) are expressly excluded.

8.7 Cumulo9 will not be liable whether in contract, tort (including negligence) or otherwise for any indirect loss or damage (including any consequential loss or loss of profits) suffered or incurred by the Customer as a result of a breach by the Customer of this Agreement or the Customer’s use of the Software. However, if despite the foregoing, Cumulo9 becomes liable for any such loss or damage, that party’s liability will be limited to 100% of the Fees actually paid by the Customer in the 12 months prior to the time such liability arises.

8.8 Cumulo9 indemnifies the Customer from any claim by a third party which results from a breach of this Agreement by Cumulo9, and any negligence or wilful misconduct on the part of Cumulo9.

8.9 Performance Shortfalls: Without prejudice to clause 8.2, if the Customer (acting reasonably) considers that the Software doesn’t perform in accordance with 8.1 and / or that the SLA defined in Schedule 4 is not met, and as such Cumulo9’s performance requires improvement then:
(a) the parties will meet to define and agree the improvements to be made;
(b) Cumulo9 will make all reasonable endeavours (and such endeavours will not fall below industry standards) to achieve those improvements;
(c) The Customer will allow Cumulo9 three calendar months from the date the parties meet for the improvements to be made; and
(d) if, following the timeframe allowed in clause 8.8 (c), the performance shortfall is not rectified Customer may then, entirely at its discretion, treat this as a material breach under clause 10.

9. Confidentiality

9.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement except as required by law. Neither party will, without the prior written consent of the other or except as required by law, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement. Each party will require its officers, employees and agents not to use, disclose or copy any Confidential Information for any purpose except as permitted by this Agreement.

9.2 For the purpose of this clause 9, Confidential Information includes all information about a party (including its business affairs, customers, operations and strategies) provided by that party to the other party, whether in writing, electronically or orally, including the Software and the Documentation, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

9.3 Each party’s obligations under this clause will survive termination of this Agreement.

10. Term and Termination

10.1 This Agreement commences on the date which both parties execute this Agreement and will remain in force until terminated in accordance with the following provisions of this clause 10.

10.2 Notwithstanding anything in this Agreement to the contrary, a party may terminate this Agreement:
(a) If the other party materially breaches this Agreement and, in the case of a material breach that is capable of remedy, does not remedy that breach within 15 working days after receiving a written notice specifying the breach;
(b) If the other party goes into liquidation or has a receiver or statutory manager appointed of any of its assets or becomes insolvent, or makes any arrangement with creditors; or
(c) by giving one month’s notice in writing to the other party.

10.3 On termination of this Agreement:
(a) the Customer remains liable for any accrued charges and amounts which become due for payment before or after termination;
(b) each party will return or destroy all Confidential Information of the other party in its possession or control; and
(c) such termination will be without prejudice to the rights and remedies of the parties accrued prior to termination and all clauses that are intended to survive termination, together with any other provisions of this Agreement which are required to give effect to those clauses, will remain in full force and effect.

10.4 Within 30 days of termination, each party must certify to the other party in writing that it has fully complied with its obligations under clause 10.3 (b).

10.5 Termination of the agreement by the Customer:
If, after the parties have followed the process highlighted in 8.8, the Customer (acting reasonably) considers that the Software still doesn’t perform in accordance with 8.1 and / or with the SLA defined in Schedule 4, the Customer can then terminate this contract by giving 1 month prior notice to Cumulo9 and Cumulo9 will give a refund to the Customer of an amount equal to the License Fee paid for the current period, minus the License Fee due for the usage between the Effective Date (or its anniversary if required) and the date of the Termination.

10.6 Upon termination, the conditions in clause 10.3 will apply.

11. General

11.1 Any notice given under this Agreement will be in writing delivered to the relevant party or sent by post or email at the address specified in Schedule 1 in the case of the Customer and to Cumulo9 as detailed in Schedule 1 or such other address or number as may be notified in writing by a party to the other party from time to time.

11.2 Any notice will be deemed received when it is left at the address of the party to be served and if sent by post, two working days (not being Saturday, Sunday or a Public Holiday) after the day of posting and if served by fax, on the day of transmission, provided the sender’s facsimile machine reports that the transmission was completed without error.

11.3 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect.

11.4 If either party waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.

11.5 This Agreement sets forth the entire agreement and understanding between Cumulo9 and the Customer regarding the subject matter of this Agreement, and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings or agreements regarding the same subject matter. This Agreement may not be modified or amended except in writing signed by both parties.

11.6 Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if such delay or failure is due to force majeure, being any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority. This clause does not apply to any obligation to pay money for liabilities incurred prior to the force majeure event.

11.7 The Customer may not assign or transfer any of its rights or obligations under this Agreement to any other person without the consent of Cumulo9, such consent not to be unreasonably withheld. Cumulo9 may assign its rights without the consent of the Customer.

11.8 The Customer warrants that it will not solicit any of Cumulo9’s employees or contracted staff during the term of this agreement and for a period of 12 months after its termination.

11.9 This Agreement will be governed and interpreted in accordance with the laws of New Zealand. Both parties submit to the non-exclusive jurisdiction of the courts of New Zealand.