1.1 In this Licence, unless the context otherwise requires or is specified otherwise:
Commercial Release means the standard release version of the Newtonsoft Software;
Customer means the entity you represent when you click to accept the terms of this Licence and includes your employees, consultants, representatives and agents;
Documentation means instruction manuals and other information relating to the Newtonsoft Software made available to Customer by Newtonsoft;
Intellectual Property Rights means any patent, trade mark, service mark, copyright, know-how and any other intellectual property rights;
Licence means this software licence agreement;
Licence Fee means the licence fee set out on the Newtonsoft Store for the version of the Newtonsoft Software used by Customer;
Major Version means an improved version of the Newtonsoft Software made available to Customer through Support Subscription;
Minor Version means an improved version to the current Major Version of Newtonsoft Software made available to Customer through Support Subscription and includes pre-release builds;
Modifications means any modification, adaptation, alteration, translation, or derivative works made from or including the Newtonsoft Software;
Newtonsoft Store means Newtonsoft's online store;
Newtonsoft Software means Newtonsoft's proprietary software made available to Customer on Newtonsoft's website;
Product Source Code means the inclusion of access to the source code with the Commercial Release;
Support Services means the support and maintenance services provided by Newtonsoft in accordance with clause 7 if a Customer purchases Support Subscription;
Support Subscription means the availability of Support Services and Major Versions, Minor Versions and Updates provided by Newtonsoft for the subscription period purchased;
Subscription Fee means the fee for Support Subscription set out on the Newtonsoft Store for the applicable Newtonsoft Software; and
Updates mean the releases of fixes and software enhancements made available to the Customer through Support Subscription.
2.1 Upon payment of the Licence Fee, Newtonsoft grants Customer a limited, perpetual, non-exclusive, non-transferable, worldwide, royalty-free licence, to use the Newtonsoft Software subject to the following terms. The licence so granted is per developer (and not per machine) for a developer license, and to the developers employed by the Customer for a site license.
2.2 All right, title and interest in all Intellectual Property Rights for the Newtonsoft Software, any Modifications and the related Documentation remain vested in Newtonsoft. Customer acknowledges that the Newtonsoft Software and its structure and organisation constitute valuable trade secrets of Newtonsoft.
2.3 Accordingly, subject to clause 2.4 and clause 2.5, Customer agrees not to:
(a) modify, adapt, alter, translate, or create derivative works from the Newtonsoft Software;
(b) sublicense, lease, rent, loan or otherwise transfer the Newtonsoft Software to any third party; or
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Newtonsoft Software, and
Customer must reproduce, on all copies made by or for Customer, and must not remove, alter or obscure in any way all proprietary rights notices (including copyright notices) of Newtonsoft on or within the copies of the Newtonsoft Software and the Documentation furnished by Newtonsoft to Customer.
2.4 Customer may use any Product Source Code to the Newtonsoft Software and make Modifications provided that:
(a) Customer may only use the Product Source Code or create Modifications for testing, operating and supporting the Newtonsoft Software for Customer’s own internal (non-commercial) purposes;
(b) it will not use the Newtonsoft Software or its Product Source Code in a manner that is or may be detrimental to Newtonsoft or its reputation;
(c) Customer has no right to distribute, sublicense, lease, rent, loan or otherwise transfer the Product Source Code or the Modifications to any other person anywhere in the world; and
(d) Newtonsoft is under no obligation to provide any Support Services in respect of any Modifications not provided directly by Newtonsoft (support will only be provided in respect of the original compiled version of the Newtonsoft Software).
2.5 Where the Customer purchases a licence for the Newtonsoft Software that contains a runtime component (as will be specified on the Newtonsoft Store), Customer may package that runtime component with Customer’s software to form a bundled software solution for selling or distributing to its end users provided that such a software solution:
(a) is developed by the Customer’s developer that holds the licence;
(b) adds material functionality beyond the functionality provided by the Newtonsoft Software; and
(c) does not compete in the software market with, or are not alternative products in that market to, any Newtonsoft Software.
2.6 At the written request of Newtonsoft, Customer will provide Newtonsoft with a signed statement verifying that the Newtonsoft Software and related Documentation is being used in accordance with this Newtonsoft Software Licence.
2.7 The Customer agrees that it is solely responsible for complying with any applicable export control laws with respect of the export or use of the Newtonsoft Software, a direct product from the Newtonsoft Software, or any technical data relating to the Newtonsoft Software, outside this jurisdiction.
2.8 Customer will pay any third party licence fees for any other software not provided by Newtonsoft that may be required to operate the Newtonsoft Software on Customer’s computers.
3.1 The term of this Licence will commence on the date this Licence is accepted by Customer and will end on the date this Licence is terminated under this Licence or otherwise.
3.2 Newtonsoft, in its discretion, may terminate this Licence immediately by notice in writing if:
(a) Customer fails to pay any sum payable under this Licence for a period of 30 business days after that sum is due and payable under this Licence and the Customer has received notice from Newtonsoft that such amounts are overdue; or
(b) there is a material breach of this Licence by Customer and:
(i) the material breach cannot be rectified; or
(ii) the material breach can be rectified but Customer has not rectified the material breach within 45 days after receiving written notice of that material breach.
3.3 On termination of this Licence, Customer will remain liable for any Licence Fees and any Support Subscription Fees payable by it to Newtonsoft which become due for payment before termination.
3.4 On termination of this Newtonsoft Software Licence, Customer will, within 90 days, cease to use the Newtonsoft Software and the related Documentation and return to Newtonsoft, or destroy, all copies of the Newtonsoft Software and the related Documentation in Customer’s possession.
3.5 Within 30 days of termination and written notification by Newtonsoft, Customer must certify to Newtonsoft in writing that it has fully complied with its obligations under clause 3.4.
3.6 Termination of this Licence will not affect the provisions of this Licence which are intended to continue, or should reasonably, continue after termination (whether expressly stated so or not). Termination will not affect any claim by either party against the other party arising out of any breach or failure under this Licence prior to termination.
3.7 If Customer fails to pay any amount when due under this Licence, and non-payment continues for 30 days after written notification by Newtonsoft, then Newtonsoft may withhold services and/or supplies under this Licence until all amounts due have been paid in full.
4.1 Customer will treat as confidential all information obtained from Newtonsoft. Newtonsoft’s confidential information means any information relating to the business or affairs of Newtonsoft and includes, without limitation its designs, drawings, manufacturing know how, object codes, source codes, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing and manipulated data.
4.2 Clause 4.1 does not extend to information which:
(a) can be established by written records to be already known to the recipient at the time of disclosure; and
(b) which is in or enters the public domain through no fault of the recipient.
4.3 This clause 4 will survive termination of this Licence.
5.1 Newtonsoft warrants that it has full power and authority to license the Newtonsoft Software.
5.2 Newtonsoft does not warrant that the Newtonsoft Software will meet Customer’s requirements or that operation of the Newtonsoft Software will be uninterrupted or error free. Customer acknowledges that the Newtonsoft Software is of a complicated and technical nature and may have minor or inherent defects.
5.3 Newtonsoft will not be liable for any failure of the Newtonsoft Software if Modifications to the Newtonsoft Software, or changes to the operating environment of the Newtonsoft Software have been made by any person other than Newtonsoft.
5.4 Customer’s sole and exclusive remedy under the warranty given in clause 5.1 will be limited to (at Newtonsoft’s option):
(a) the correction or reconfiguration of defects in the Newtonsoft Software;
(b) replacement or modification of the Newtonsoft Software in whole or in part if Newtonsoft considers acting reasonably, that such replacement or modification is justified or that the Newtonsoft Software will become non-infringing; or
(c) obtaining the appropriate licence to allow Customer to continue using the Newtonsoft Software.
5.5 Except for the warranties expressly given under this Licence, all express or implied warranties and representations by Newtonsoft (including warranties as to condition, quality, performance, merchantability, durability or fitness for purpose) are excluded to the extent permitted by law. In particular, Customer confirms that it has not relied, and will not rely, on any oral representation made by Newtonsoft or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Newtonsoft and Customer understands that such materials are only intended to convey a general idea of the products and services to which they relate. The Customer acknowledges that it is entering into this Licence for the purposes of a business and that the Consumer Guarantees Act does not apply to any goods or services delivered by Newtonsoft under this Licence.
6.1 Newtonsoft will not be liable to Customer in relation to any claim in respect of or arising out of this Licence or the subject matter of this Licence (whether in tort, contract, in respect of any indemnity, or otherwise) for:
(a) loss of profits, revenue, anticipated savings or goodwill;
(b) any indirect, special, incidental or consequential loss or damage, even if Newtonsoft has been advised of the possibility; or
(c) any data which is lost, corrupted, deleted or altered.
6.2 If Newtonsoft is held liable to Customer for claims in respect of or arising out of the supply of Newtonsoft Software, then Newtonsoft’s total liability (whether in contract tort, equity, in respect of any indemnity or otherwise) is not to exceed (in the aggregate) the lesser of:
(a) the actual loss or damage directly suffered by Customer; and
(b) the total Licence Fee actually paid to Newtonsoft by Customer for the Newtonsoft Software giving rise to the claim,
(c) in respect of the warranty set out in clause 5.1, Customer’s sole remedy and Newtonsoft’s total liability is limited to the terms of clause 5.4; and
(d) in respect of the warranty set out in clause 8.1, Customer’s sole remedy and Newtonsoft’s total liability is limited to the terms of clause 8.2.
6.3 Newtonsoft will not be liable for any claim made in relation to this Licence later than six months after the initial event giving rise to the claim.
7.1 Upon the payment of the Support Subscription Fee and for the period of Customer’s Support Subscription, Newtonsoft, or a third party nominated by Newtonsoft, will, in relation to any Commercial Release (including any Commercial Release that includes Product Source Code provided that it has not been modified):
(a) provide online support in a dedicated forum;
(b) make Minor Versions available to Customer to download until the next available Major Version is made commercially available by Newtonsoft;
(c) make Major Versions available to Customer; and
(d) endeavour to resolve identified issues with the Commercial Release by [making Updates available through its online support].
7.2 The Support Services do not include services provided by Newtonsoft relating to or resulting from:
(a) Product Source Code with Modifications;
(b) misuse of the Newtonsoft Software or failure to use the Newtonsoft Software in accordance with the related Documentation;
(c) unauthorised attempts to repair, replace, modify or maintain the Newtonsoft Software by persons other than Newtonsoft; or
(d) support of prior releases or versions of the Newtonsoft Software after six months from the date Newtonsoft offered a Major Version to Customer.
7.3 Customer must renew its Support Subscription prior to the expiry of the then current period to maintain continuous support. Renewals can be made via the Newtonsoft Store and require payment of a Support Subscription Fee.
8.1 Newtonsoft warrants that the Support Services will be of a professional quality conforming to generally accepted industry standards and procedures.
8.2 Customer’s exclusive remedy, and Newtonsoft’s entire liability, if Newtonsoft is unable to perform the Support Services as warranted, will be the re-supply of the deficient Support Services.
9.1 Customer will:
(a) pay the Licence Fee and any Support Subscription Fee (if applicable) in accordance with Newtonsoft’s payment terms posted on Newtonsoft’s website or otherwise advised to Customer;
(b) promptly report to Newtonsoft all program errors which Customer discovers;
(c) ensure that:
(i) an authorised representative is available to be the prime point of contact with Newtonsoft in the event of any problems and queries; and
(ii) such authorised representative has a good understanding of the Newtonsoft Software, its operation and its hardware and operating environment;
(d) make all reasonable efforts at investigation and diagnosis of any suspected defects or errors before contacting Newtonsoft. Persistent failure to do this may result in the levying of additional charges by Newtonsoft, at its option, after warning in writing of such charges being levied; and
(e) maintain a list of all hardware, communications and software problems to assist with the diagnosis and resolution of any defects or errors.
10.1 The parties will attempt to settle any dispute arising from or relating to this Licence in accordance with this clause 10.1 before resorting to external dispute resolution mechanisms, except where the party seeks urgent interlocutory relief.
10.2 A party claiming that a dispute has arisen under or relating to this Licence will immediately notify the other party in writing specifying the nature of the dispute.
10.3 On receipt of the notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation or other informal means.
10.4 If, within 14 business days of the notice of the dispute, the parties do not agree on a dispute resolution technique or if the dispute is not resolved, then either party may refer the dispute to mediation. The mediation will be conducted in terms of the Resolution Institute standard mediation agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties within three business days of referral to mediation, the mediator will be selected and his/her fee determined by the Chair for the time being of Resolution Institute. Each party is to bear its own costs in mediation and pay half the costs of the mediation.
11.1 This Licence constitutes the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter. Without limiting the generality of the foregoing, where any invoice terms, delivery terms, shipping terms, payment terms or order terms conflict with or are inconsistent with the terms of this Licence, the parties agree that the terms of this Licence will prevail.
11.2 Neither party will be responsible or liable for any delay or failure in the performance of its obligations under this Licence if such delay or failure is due to circumstances outside its reasonable control including, without limitation, acts, omissions, systems, networks, equipment or data of the other party or the acts, omissions, systems, networks, equipment or data of any third party (including, without limitation, the Internet or any telecommunications network or equipment), acts of God, natural disaster, riot, terrorism, malicious damage, fire, or acts of any governmental authority. This clause 11.2 does not apply to any obligation to pay money for liabilities incurred prior to any such extraordinary circumstance occurring.
11.3 If any part or a provision of this Licence is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Licence will continue to operate.
11.4 A provision or a right under this Licence may not be waived except in writing signed by the party granting the waiver.
11.5 A party may exercise a right, power or remedy under this Licence at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Licence does not prevent a further exercise of that or of any other right, power or remedy.
11.6 This Licence may not be varied except by agreement in writing signed by the parties.
11.7 Customer will not assign or otherwise transfer this Licence or any of its rights or obligations under this Licence, whether in whole or in part, without the prior written consent of Newtonsoft.
11.8 This Licence is to be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.