Add-in Software License

1. Applicability

This licence applies to any Fusion5 Software that is Add-in Software, which Customer agrees to acquire from Fusion5 in an Order, provided that:

If at the time of placing the Order, Customer has a current and validly signed Fusion5 Master Services Agreement that includes an Add-in Software licence, then the licence terms in that Fusion5 Master Services Agreement apply.

This licence does not apply to any third party software, the use of which is subject to the applicable third party licence.

2. Provision of Fusion5 Software

Fusion5 grants to the Customer a non-exclusive, non-transferrable licence to use the Fusion5 Software specified in the Order, for the Licence Term, in accordance with the Metrics and any other conditions specified in the Order, solely for its own internal business purposes, on its production instance of the Primary Software, and on any non-production instance while and to the extent that instance is used for Customer’s development and testing activities using non-production data (Licence).

The Order, together with these terms, constitutes an Associated Document under the Fusion5 Master Services Agreement between Customer and Fusion5, provided that if no such agreement is current and validly signed at the time of this Order, or there is a framework agreement that is not a Fusion5 Master Services Agreement, then Fusion5’s standard terms of business apply.

Fusion5 does not represent or warrant that the Fusion5 Software will perform without interruption or error. Customer accepts the Fusion5 Software as is, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or any other warranty implied by statute. To avoid doubt, the Fusion5 Software is not a Deliverable, and the Defects Warranty does not apply to the Fusion5 Software.

Nothing in this Licence excludes, restricts or modifies any condition, warranty, right or liability implied in this Licence or protected by law to the extent that such exclusion, restriction or modification would render this Licence or any provision void, illegal or unenforceable.
Other than those rights granted in subsection (a), the Customer’s right to otherwise reproduce or adapt the Software is limited to the extent expressly permitted by the Copyright Act Permissions.

Subject to the exclusion in subsection (d), any condition, warranty, right or liability which would otherwise be implied in this Licence or protected by law is excluded.

Customer acknowledges and agrees that the Fusion5 Software may interface to, and be dependent on, Fusion5 systems and environments that are outside of the Primary Software and the Customer Systems, and that the functionality and operation of the Fusion5 Software will therefore be dependent on its connectivity to, availability of, and transfer of Customer data to and back from those systems.

3. Retained Rights

Notwithstanding any provision in this Order, the Master Services Agreement, or any other document to the contrary:

Fusion5 and/or its licensors retain all Intellectual Property Rights in the Fusion5 Software and Documentation.
Customer obtains no Intellectual Property rights to the Fusion5 Software or Documentation other than expressly granted in this Licence.

4. Acceptance

Customer acknowledges and confirms that:

The Fusion5 Software cannot be guaranteed error free, and the existence of any such errors does not constitute a breach of this Licence.
It has not relied on any representation by Fusion5 regarding the Fusion5 Software which it has not been able to verify, or had the opportunity to verify, independently.
Prior to entering into the Order, Fusion5 has provided Customer with (and it has availed itself of) a reasonable opportunity to:
satisfy itself that the Fusion5 Software corresponds with any representations made by Fusion5; and
examine the Fusion5 Software for any apparent limitations, incompatibility, problems, or other issues that would affect its suitability to meet Customer’s requirements.

5. Customer Responsibilities

Customer is responsible for:

All Permitted Users’ use of the Fusion5 Software.

Any use of the Fusion5 Software through Customer’s account, whether authorised or unauthorised.

All authentication tokens required for the Fusion5 Software to interface with Customer Systems.

Licence compliance and all related costs for any Customer Systems interfacing with the Fusion5 Software.

Any communications and network connectivity required for Customer to access the Fusion5 Software.

Ensuring that the environment on which the Fusion5 Software is installed, and from which Customer accesses the Fusion5 Software:

meets the minimum requirements (including system, system Software, other Software, capacity and performance) specified in the Documentation.

has adequate security measures in place to protect the Fusion5 Software and Customer data from both external and internal security risks and threats.

Managing, restricting and granting access to, and maintaining the integrity of, all Customer data in the Fusion5 Software.

The control, operation, and security of all transactions undertaken using the Fusion5 Software.

All backups of the Fusion5 Software and Customer data, including those required before deployment of upgrades, and before or after any material data processing events.

Ensuring that it does not use the Fusion5 Software in circumstances that exceed the Metrics.
Its compliance with all laws, notwithstanding any capability or functionality provided by the Fusion5 Software.

Training of the Permitted Users in the use of the Fusion5 Software.

Testing and verification of the compatibility of any Customer Customisations against each new version of the Fusion5 Software in a non-production environment prior to any use with production Customer data.

Customer will:

Take reasonable steps to prevent unauthorised access to the Fusion5 Software, including without limitation by protecting its passwords and other log-in information.
Supervise and control the use of the Fusion5 Software within the Customer environment in accordance with the terms of the Licence.

Ensure its Permitted Users comply with the terms of this Licence.

Notify Fusion5 in writing of any usage of the Fusion5 Software in excess of the Metrics.

Verify and confirm its usage of and compliance with the Metrics:

On request from Fusion5; and
Between 30 and 60 days prior to the commencement of each Renewal Term.

Customer must not:

Copy, reproduce, translate, adapt, reverse engineer, decompile, vary or modify the Fusion5 Software without the express consent of Fusion5, except as expressly authorised by the Licence.

Provide access to the Fusion5 Software to anybody other than Permitted Users, without the written consent of Fusion5.

Attempt or purport to give, lease, assign, licence, sub-licence, transfer, distribute, disclose, resell, rent, lease, disseminate or publish the Fusion5 Software in any form to any other person.

Use the Fusion5 Software for or in connection with a service bureau operation, for the benefit of any third party.

Operate or attempt to use the Fusion5 Software other than in accordance with the Licence.

Except to the extent that applicable laws prevent this License from restricting such rights, Customer must not:

Reproduce, make error corrections to, or otherwise modify, adapt, or create any derivative works based on the Fusion5 Software or the Documentation; or
De-compile, disassemble or otherwise reverse engineer the Fusion5 Software or permit any third party to do so; or

Modify or remove any copyright or proprietary notices on the Fusion5 Software or the Documentation.

6. Suspension

In addition to any other rights and remedies available, Fusion5 may suspend Customer’s access to the Fusion5 Software without advanced notice:

If Fusion5 reasonably believes that Customer or any Permitted Users have breached this Licence.

At the end of the Licence Term, where Customer does not enter into any Renewal Term.

If Customer fails to pay any undisputed invoice issued and due in relation to the Software Charges by the applicable due date.

7. Licence Term

7.1 Renewal Term

Unless either party provides prior written notice, upon the expiry of the Notice Period prior to the end of the then current Licence Term, the Licence will be extended for an additional Renewal Period.

7.2 Termination

1. Notwithstanding any other provision of the Master Services Agreement, if Customer exercises a right of termination of this Licence or the Master Services Agreement without cause:
   1. no refund will be payable by Fusion5 for any pre-paid Software Charges attributable to the remainder of the then current Licence Term; and
   2. all Software Charges for the remainder of the then current Licence Term not yet paid by Customer will be immediately due and payable.
2. Upon termination or the expiry of the Licence Term for any reason, Customer’s right to use the Fusion5 Software terminates, and Customer will remove the Fusion5 Software from all Customer environments on which it is installed, and any other environments onto which Customer caused it to be installed.

7.3 Charges for each Renewal Term

Fusion5 may:

1. Adjust the Software Charges for each Renewal Term by CPI.
2. Provide written notice of a change to the Software Charges at least 90 days prior to the end of the License Term, which will take effect upon the commencement of the next Renewal Term.

8. Additional Terms

The following additional defined terms apply:

Add-in Software means Software that:

1. expands, enhances, or provides additional capabilities to Primary Software;
2. cannot be used independently of the Primary Software; and
3. is hosted on or installed into the environment on which that Primary Software operates.

Copyright Act Permissions means:

1. if the Governing Law is Australia, then part III division 4A of the Copyright Act 1968 (Cth).
2. otherwise, Part 3 ss. 80A(2) and 80B(1) of the Copyright Act 1994 (NZ).

CPI means:

1. if the Governing Law is Australia, then most recently available twelve months All groups CPI published by the Australian Bureau of Statistics (6401.0 – Consumer Price Index).
2. otherwise, the New Zealand annual inflation rate of all groups (SE9A) in the most recent published Consumers Price Index published by Stats NZ Tatauranga Aotearoa.

Customer Customisations means any configuration, functionality, modules, interfaces, third party Add-in Software, or other Software not provided by Fusion5, that Customer uses in conjunction with, with connectivity to, or in reliance on, Fusion5 Software.

Customer Systems means all Software, systems and technology owned or licensed by Customer that is used by Customer to access the Fusion5 Software, or with which the Software interfaces or communicates.

Documentation means the written specifications, instructions and guides provided by Fusion5 in relation to the Fusion5 Software, including any such information provided within the Fusion5 Software.

Fusion5 Software means the Software that is licensed by Fusion5 under the Order.

Initial Term means the period specified as the initial term in the Order.

Licence Term means the Initial Term and any and all Renewal Terms.

Metrics means the limits on the quantities or volumes of usage (if any) that are specified to apply to the Licence, as set out in the Order.

Notice Period means 60 days, or such other period as set out in the Order.

Order means the document titled “Quote” issued by Fusion5 to Customer that is executed by Customer in accordance with its terms, that refers to these terms.

Permitted Users means employees, officers, contractors and agents and of Customer.

Primary Software means the Software into or on which Add-in Software is installed as set out in the Order, or if not specified, then the Documentation.

Renewal Period means 12 months, or such other period as set out in the Order.

Renewal Term means each and all Renewal Periods activated by operation of section 7.1.

Software means computer programs executable in either binary or source form to enable a computer to perform an intended function or provide a specific service.

Software Charges means the Charges for provision of the Software specified in the Order, subject to any change to the Charges made in accordance with the Licence.